On 30 April 2018, more than 30 judges filed notification of the establishment of a professional association named “Lebanon’s Judges’ Club” in the Ministry of Interior. In doing so, they followed in the footsteps of their predecessors who established the first and only association for judges in Lebanon, the “Judicial Studies Circle” [which existed from 1969 to 1972]. The new club’s establishment comes after more than a decade of discussion among judges about the possibility of establishing an organization amid categorical rejection of the idea – without any discussion or explanation – by the Supreme Judicial Council. While the establishment reflects the desire of a number of judges to confront and overcome this ban and therefore constitutes a significant national accomplishment, it was met with lukewarm reception, being welcomed by just a few specialized websites. This silence persisted even though the Ministry of Interior violated the Associations Law by delaying acknowledgment of the association’s establishment and the Supreme Judicial Council made efforts to quash the association. These efforts culminated in the circular that the council issued on 7 November 2018. In this article, we will present and refute the arguments that the council put forward in four documents that it issued in this regard.

Before doing so, we must point out that the establishment of associations (including the judges’ association) in no way falls within the purview of the Supreme Judicial Council. The council would not have played any role were it not for a flawed and erroneous practice that the Ministry of Interior has recently adopted in violation of the essence of the Associations Law and for the collusion of the Ministry of Justice. Namely, rather than delivering the founders of the association official acknowledgment that it received their notification, the Ministry of Interior sought to consult the Ministry of Justice, which merely referred the request for an opinion to the Supreme Judicial Council.

 

Document 1: The Supreme Judicial Council’s Opinion that Establishing an Association for Judges is Illegal

On 14 June 2018, the Supreme Judicial Council sent its opinion to the minister of justice (and, via him, to the minister of interior), at the Ministry of Interior’s request. In the document, the council listed three reasons for its rejection of the association, which we shall comment on below:

The first reason is that the association’s stated goals include watching over and strengthening the judiciary’s independence and strengthening judges’ ethics, the judiciary’s honor, and the people’s trust in the judiciary – and all these tasks fall within the exclusive purview of the Supreme Judicial Council. Hence, it is not permissible for some number of judges to establish an entity vested with these powers. If they do so, a private legal person (the association) transforms, in practice and with no legal basis, into a public one, according to the council. This argument is invalid as watching over the judiciary’s independence and judges’ ethics is a right and duty of judges, as individuals and groups, and does not constitute an encroachment on the powers of any of the public institutions, which alone are authorized to make decisions in this area. The association can expose interference in the judiciary, but it cannot take any measure concerning, for example, the transfer, assignment, or discipline of judges.

The second reason is the obligation of restraint, as a judge is bound by the judicial ethics that the council adopted in 2005. This argument is also invalid as the international instruments issued in this area all refute the inherited professional traditions by enshrining the principle of judges’ freedom of expression and freedom to establish associations just like all other citizens, taking into consideration the honor and exigencies of judicial work. The Charter of the United Nations went as far as to deem this freedom one of the guarantees of judicial independence, as it fortifies judges and prevents them from being isolated individually.

The third reason is Article 44 of the law regulating the judicial judiciary, which requires that all judges’ collective demands go through the Supreme Judicial Council. This argument too defeats itself, in addition to totally defeating the previous arguments. The meaning of Article 44 differs from what the council put forward because the compulsory passage of collective demands through the council presupposes that judges are entitled to formulate collective demands and, therefore, to meet, deliberate, and ponder together over any judicial issue, including the judiciary’s independence and ethics. This point is not refuted by the argument that the council established the consultative committees to form a practical framework for formulating these demands, as the work of these committees is restricted to the affairs of the courts in which they are elected. According to the Supreme Judicial Council itself, they cannot address judges’ general issues. In any case, the council may not suspend, via a regulatory decision, constitutional freedoms as important as the freedoms of expression and to establish associations.

 

Document 2: A Letter to All Judges Dissuading Them From Joining

On 28 September 2018, the president of the Supreme Judicial Council sent a letter to all judges individually. This letter reiterated two arguments that appeared in the first document, namely the association’s encroachment on the council’s powers and the aforementioned Article 44. In this document, the council admitted that it delivered the Ministry of Interior (via the minister of justice) its opinion that judges are not entitled to establish an association, and that it then contacted the Ministry of Interior, which confirmed that it had not given the founders acknowledgment of the association’s establishment. The intent of this communication was probably to ask the Ministry of Interior to take the measures needed to declare the association in conflict with public order. The document ended with a call for judges to “maintain their notable gains [made] in the law regulating the judicial judiciary and not participate in the creation of entities that weaken the judicial authority’s position among the other authorities”.

This document suggests that the council fears the association will weaken its authority over judges.

 

Document 3: Justifying the Sin with the Sin of the Predecessor

On 15 October 2018, the Supreme Judicial Council issued a statement contending that “the stance on the judges’ association is not a personal stance from the Supreme Judicial Council’s president but a stance that the current council and the previous council reached a consensus on and that conforms with the laws in effect, especially as the association’s goals are aimed at exercising powers legally vested in the Supreme Judicial Council”. The statement was a defensive response to the appearance of MP and president of the Administration and Justice Committee Georges Adwan on the television channel Al Jadeed the previous day, when he attacked the council for rejecting the club. Evidently, the only argument the statement cited was that the association’s goals encroach upon the council’s powers. While this argument relates to the association’s goals, not the principle of judges’ right to establish associations, the emphasis on the constancy of the council’s rejection across its different forms is enough to dispel any doubt that it also objects to the latter. From this angle, the statement appears to justify the council’s infringement on judges’ freedom to assemble on the basis that there is a tradition of infringing on this freedom.

 

Document 4: Resorting to the Public Servants Law

On 7 November 2018, the Supreme Judicial Council issued a circular denying judges’ right to establish associations. In contrast with the council’s previous stances, this circular relied in particular on Article 15 of the Public Servants Law to ban freedom of expression for judges. Hence, the council reminded judicial judges that “the legal provisions in force in Lebanon, especially Article 15 of the Public Servants Law… continue to ban judges from joining a professional organization or union, irrespective of the label chosen for it”. It also reminded them of the “guide for judges’ obligations and ethics”, which prohibits the establishment of such a union or organization or incitement to join one, “especially as this conflicts with the concept and exigencies of the judicial authority, for which work must be done to strengthen its components and consolidate its distinctive attributes”. The circular adds that “the judiciary is an authority, and judges are entrusted with the prestige [hayba] of an authority. Having a portion of them become part of a professional assembly whose purpose is to exercise powers legally vested in the Supreme Judicial Council is not in keeping with this reality”.

The remarkable aspect of this circular is that, for the first time, the council invoked Article 15 of the Public Servants Law. Although the council’s stances in the three aforementioned documents were negative, none of them referred to this article. The former silence on this article in the council’s discourse in 2017 and 2018 can be interpreted as a rejection of any connection between the regulations applying to judges and those applying to public servants on the basis that the judiciary is an authority and not a [regular public service] job. The departure from this silence appears to have been necessitated by the council’s need for more justifications to undermine the club’s legitimacy. Hence, it appears that the council’s stances in 2017 and 2018 were merely a tactic for achieving certain ends, a tactic it had no qualms abandoning as soon as other considerations arose. Thus, the council has endeavored to apply this article and the prohibitions therein on judges in contravention of Article 132 of the law regulating the judicial judiciary, which rules out the application of all provisions concerning public servants that conflict with this law and, subsequently, with the principle of judicial independence.

Making this circular worse, it broadened the scope of the application of the prohibitions mentioned in Article 15 of the Public Servants Law in a manner that breaks the law regulating the judicial judiciary and conflicts with both the text and spirit of this article. Thus, it expanded the prohibitions to include the establishment of associations in order to target the judges’ club. While Article 15 bans public servants from establishing professional unions and organizations, the council expanded its scope to encompass any similar assembly “irrespective of the label chosen”. In reality, conflating professional organizations and unions with associations completely contradicts the philosophy and spirit of this article and reflects the council’s desire to suppress judges’ freedom of assembly categorically.

The distinction between these different types of assemblies is corroborated by the works of French jurist Maurice Hauriou during the first half of last century. In relation to the right of public servants to unionize, Hauriou distinguished between unionist assemblies – i.e. assemblies to defend their members’ material and moral interests, which remained banned for state employees in France until 1946 – and other assemblies, such as amicales and assemblies to defend the general interests of the service, i.e. to defend public interests without any selfishness or unionist intent to lay hold of public service. The latter type of assemblies are legally valid pursuant to the principle of the freedom of associations, as well as logic, common sense, and the customs prevailing at the time.[1]

We must also examine the final argument that appears in the circular, namely that “the judiciary is an authority, and judges are entrusted with the prestige [hayba] of an authority. Having a portion of them encompassed in a professional assembly whose purpose is to exercise powers legally vested in the Supreme Judicial Council is not in keeping with this reality”. This statement is based on a series of misconceptions:

Firstly, the circular distorts the concept of the judicial authority, making it akin to an idol that judges must honor and whose prestige they must preserve. The intended meaning of the “authority” appears to be the Supreme Judicial Council. In reality, this understanding constitutes an inversion of the purpose of the Supreme Judicial Council’s existence: instead of the council being a means and safeguard for strengthening the judicial authority represented by the judge or the court when they examine a case, the judge becomes a means and tool for strengthening the council and its dominion. This effort by the council conflicts with the definition of the judicial authority as one “exercised by the courts of the various levels and jurisdictions” found in Article 20 of the Constitution. The Constitution’s definition converges with European doctrine, which holds that “the judicial authority” is closely connected to the function of the judge and, therefore, cannot be reduced to a specific body as in the case of the parliament and the legislative authority, or the president or cabinet and the executive authority.

In this sense, “the judicial authority” is a decentralized, diffused authority [pouvoir diffus] constituted by every judge per se when exercising their judicial power,[2] not an authority restricted to a specific organ.

This is confirmed by most international instruments enshrining judicial independence, as well as the consensus in European doctrine[3] that the council “is not a part of the judicial authority”.[4]

Secondly, the circular considers any independent professional assembly beyond the Supreme Judicial Council an undermining of the judicial authority’s prestige. This implies that the authority’s prestige diminishes or is disturbed if judges attempt to strengthen bonds of solidarity and cooperation among them or participate in thinking about judicial issues, or if it appears at any time that there are different opinions inside the judiciary.

 

Conclusion

The club’s founders have refused to yield to the council. While they have persisted with the procedures for establishing the club and developing its work, they have so far avoided openly condemning the council’s stances or transforming their cause into a public issue. The most important overt moves that they have made in this context are: their election of the association’s administrative board, their joining of the Union of Arab Judges (which has incorporated a series of bodies arising in a number of Arab countries), and the remarkable statement issued by the club’s administrative board on 25 September, 2018, which contained a number of extremely important pro-independence positions. The statement made a number of significant announcement. Firstly, that the board members intend to allow the official bodies to view their bank accounts as they believe that corruption must be fought and measures to enhance transparency adopted, especially among persons belonging to the three branches of government or working in the public service. Secondly, a committee is being formed to study bills and proposals relating to the independence of the judicial authority and to judicial organization. The board also declared that it is extending its cooperation to the public, the media, civil society, and the bar associations.

 

This article is an edited translation from Arabic.

 

Keywords: Lebanon, Supreme Judicial Council, Judges

 

[1] Maurice Hauriou, Précis de droit administratif et de droit public, 4e éd., 1938.

[2] This has been stated explicitly by the Italian constitutional council. See “La nature des conseils supérieurs de la magistrature en Europe” in Les conseils supérieurs de la magistrature en Europe, T. S. Renoux (sous la dir.), Doc. Française, Paris, 1999, p. 31.

[3] See “La nature des conseils supérieurs de la magistrature en Europe”, op. cit., p. 27 s.

[4] T. Renoux, “Rapport de synthèse”, in La nature des conseils supérieurs de la magistrature en Europe, op. cit., p. 109, spéc., p. 112.