The President’s Outdated Speech: Using the Judiciary as Cover and Legislation to Buy Time
On 24 October 2019, days after the popular movement in Lebanon began, President of the Republic General Michel Aoun delivered a public speech. He went further than the prime minister in acknowledging the movement’s importance, praising it not only for imposing pressure that allowed the government forces to reach an agreement in the shortest timeframe but also for ending these forces’ feeling that they can behave however they please without any rebuff from society. On one hand, as I said about the reform paper, the president’s speech was not commensurate with the intensity of the event and was unconvincing. As the speech presupposed that the judiciary is independent and capable with no need for additional measures or guarantees, it concluded that the focus should be on adopting a handful of legislations that help strengthen the fight against corruption. On the other hand, it seemed less interested in the role of the executive authority, merely referring to the reform paper developed by the government, which consisted of legislative and regulatory promises far removed from any direct executive steps. Hence, the speech seemed to rely on the judiciary and legislation without granting any role to the executive branch. Besides the long time that crafting these legislations could take amidst a crisis that demands immediate initiatives, their force and effectiveness are questionable, especially as the assumption underpinning the speech – i.e. that actual judicial independence has been achieved – is incorrect.
Before explaining all this, I must state that from these angles, the speech was akin to an evasion of direct responsibility. A move by the political authority to highlight the judiciary’s role in combating corruption without granting it sufficient immunities is not so much an effort to truly combat corruption as an effort to transpose the corruption allegations that the street is making against this authority onto the judiciary after having established it as the only source of charges and convictions. Similarly, a move by the political authority to highlight the importance of legislation in the absence of a truly independent judiciary is, in practice, not so much an effort to reform as an effort to buy time.
Assuming the Judiciary’s Independence Without Fortifying It: The Judiciary as a Cover for Corruption or a Tool for Combating It?
After praising the popular movement and emphasizing its success in setting the gears of government in motion, the president began his discussion about reform by relying on the judiciary’s role in combating corruption. To underscore the judiciary’s ability to perform this role, he mentioned two guarantees. The first was a personal guarantee from him, namely a pledge to protect any judge from any interference or pressure they might face. The second was that the presidency [al-’ahd] and government have recently managed to appoint good bosses for the judges. This strengthens judges’ ability to perform the roles asked of them, according to a statement recently issued by the Supreme Judicial Council, which emphasized the role of judges in combating corruption. Remarkably, despite the promises to launch legislative efforts related to combating corruption, the speech made no mention whatsoever of the bill on the independence and transparency of the judiciary, which was prepared by The Legal Agenda and is pending before the Administration and Justice Committee, or any other bill to grant the judiciary legal guarantees. From this perspective, assuming the judiciary’s independence in this matter elicits several criticisms:
All the guarantees that he assumed achieve judicial independence are, in reality, merely personal guarantees. They relate to his person or to those he appointed as bosses of the judges. Besides the fact that the strength of these guarantees is contingent on these people’s will and integrity, their retention of their positions, and the scope of their powers, these guarantees are also fragile and unable to grant judges sufficient protection and therefore cannot be relied upon to lay the foundations of work that will presumably be long-term and extremely complicated. To underscore this, I must mention four things:
1- Depending upon the president of the republic to ensure judges’ independence is idealistic as it means, at its core, relying on the political authority to protect the judiciary from it, which conflicts with the principle of judicial independence.
2- The mere statement that bosses (i.e. the president of the Audit Bureau, the president of the Supreme Judicial Council, the president of the State Council, and the cassation public prosecutor) were appointed for the judges reflects a dubious view of judicial independence. This is because, except for Public Prosecution judges, judges are supposed to enjoy total independence, which conflicts with the statement that they are subordinate to any boss.
3- The role of the judges’ “bosses” in the effort to combat corruption remains limited given the current laws. It is well known that the Supreme Judicial Council’s main function is to produce the judicial personnel charts (i.e. to put the appropriate judge in the appropriate position). As these charts are only issued via a decree [from the Council of Ministers after it receives them from the Supreme Judicial Council], all the authorities that must sign the decree have the right to veto them and therefore the ability to abort them, which has often occurred. Hence, under the current laws and practices, the Supreme Judicial Council’s president will promptly find himself, like many before him, compelled to work, in one way or another, with the ruling forces to pass any charts and, in practice, forced to satisfy them or else see work suspended in many courts.
4- Contrary to what was said in the speech, not all these appointments were appropriate or reassuring. Here, I need only mention current cassation public prosecutor Ghassan Oueidat, who occupied the position of first investigating judge in Beirut for approximately ten years. In that capacity, he is not known to have pursued any corruption case. On the contrary, two things are on his record: firstly, several times he misallocated cases among Beirut’s investigating judges. He entrusted the examination of many cases connected to political forces to investigating judges close to them, thereby privileging those forces and casting legitimate doubt over the entire investigations. Secondly, he dismissed many of these actions filed against influential persons, some in cases of corruption (e.g. the Sukleen case and the Maison Blanche case against Antoun Sehnaoui). Similarly, the circular that he issued on the eve of the current movement (23 September 2019) to place all cases involving employees of public administrations exclusively into his own hands and ban the public prosecution offices from taking any measure concerning them was a grave sign that the independence of these offices and anti-corruption efforts were under attack. This was confirmed by Oueidat’s media statements after Mount Lebanon’s public prosecutor Ghada Aoun charged former prime minister Najib Mikati and his associates with unjust enrichment without going through him.
The assumption of actual judicial independence contradicts the reality that has emerged from the current organization of the judiciary and prevailing practices, including practices that the presidency helped establish and consolidate and that have strengthened the political forces’ grip on the judiciary. These practices have gradually destroyed the barriers between the judiciary and the political authority, replacing interference in the judiciary with almost organic entanglement between the judges appointed in important positions and the political forces. The personnel charts that the current presidency witnessed in 2017 were distinguished by the use of quota-sharing criteria to divvy up the important judicial positions, particularly in the public prosecution offices, the investigating judiciary, and the presidencies of courts. In other words, the political forces (the Free Patriotic Movement, the Future Movement, and the Amal Movement-Hezbollah duo) took charge of filling the positions with judges close to them, each in relation to the positions allocated to its sect. This prompted The Legal Agenda to dub these charts “the three-party charts”. In this sense, they enabled the political forces to take hold of the judicial positions and thereby control peoples’ freedoms and interests. Hence, the relationship between the political forces and influential judges is characterized no longer by interference that anyone can restrain but by entanglement whereby these judges serve the forces that appoint them in exchange for those forces’ help in appointing them in their positions and protection. The best evidence of this is the lifeline that the Free Patriotic Movement extended to Peter Germanos, one of the most prominent judges it appointed, via the minister of justice’s refusal to respond to the Judicial Inspection Committee’s recommendation that he be suspended.
A Legislative Effort Against Corruption: Legislation as a Tool for Publicity and Buying Time?
As soon as the president concluded his discussion about the judiciary, he went on to showcase several bills that fall within the framework of combating corruption. While he made no reference whatsoever to the bill on the independence and transparency of the judiciary pending before the Administration and Justice Committee, as previously stated, he mentioned the bill he presented in 2012 to establish a special court for corruption crimes, as well as three other bills that MPs from the Strong Lebanon bloc put forward, namely a bill on recovering stolen funds, a bill on [removing] bank secrecy, and a bill on removing legal immunities. Finally, he referred to the Anti-Public Sector Corruption Law, which included the establishment of the National Anti-Corruption Authority. The president justified the focus on the legislative effort by stating that true reform requires enacting new legislations because making achievements in the fight against corruption under the current laws would be difficult.
While I do not wish to downplay the importance of legislation, examining the bills reveals their populist nature, which renders them more of a tool for personal publicity and buying time than a tool for reform. This is evident from the following:
While this effort consists of numerous bills, it neglects the fundamental reform needed to make them effectual and applicable, namely reform that achieves judicial independence, as previously explained. Hence, it is feared that new laws will be added to the legal arsenal without having any effect on the ground. What is the point of removing bank secrecy and immunities if the entanglement and suspicious relationships between the public prosecution offices and investigating judiciary and the political forces, together with the de facto immunities, remain in place? To demonstrate this issue, I need only call to the reader’s attention the outcome of the Unjust Enrichment Law (the “Where did you get this?” law). While this law allows bank secrecy to be removed and immunities to be bypassed, it was first applied 66 years after its adoption. Similarly, the presidency itself derailed the implementation of the Right to Access Information Law by claiming that its entry into force presupposes the issuance of a decree. Exacerbating these fears, the bill to establish a special court for combating corruption crimes stipulated the establishment of an exceptional court whose members are appointed by the political forces and that follows exceptional procedures, which totally conflicts with the principles of judicial independence and fair trial. Furthermore, the bill to recover stolen funds limited the initiation of such prosecutions and the freezing of allegedly stolen funds to the cassation public prosecutor alone, who may be the judge most connected to the political forces.
The presidency itself obstructed the adoption of the Anti-Public Sector Corruption Law, which is the law that establishes the National Anti-Corruption Authority, when it returned the law to Parliament for various reasons. Some of these reasons reflect an attempt to delay deciding on the law for one reason or another, e.g. to wait for an agreement on the anti-corruption strategy and for Lebanon to join international treaties such as the OECD’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Others reflected an attempt to limit the independence of the authority’s members, such as the refusal to have two of its members elected from among retired judges by a body comprising all of Lebanon’s judges on the pretext that assembling such a body is infeasible or the refusal to disallow the appointment of people who belong to political parties or participate in the political authority pursuant to the freedom to establish associations(!). What makes the choice to send back the law worse is that it effectively disabled two fundamental laws for establishing transparency, namely the Whistleblower Protection Law and the Oil and Gas Sector Transparency Law, as their application is contingent on the establishment of the National Anti-Corruption Authority.
Legislative work takes a long time in Lebanese practice, especially given the intense quarreling among the political forces, which usually allows any one of them to shirk their responsibilities or reform promises by pointing the finger at the other parties’ vetoes. Hence, while freezing some politicians’ accounts today could enable the state to recover stolen funds under the money laundering law, if such a freeze is made contingent on the enactment of a new law then months or years could elapse before it occurs. This delay could allow all involved to smuggle out the funds they managed to steal, making it impossible to recover any of these funds later and turning the law into one lacking a subject. In this regard, it suffices to mention that Tunisia is to this day, approximately nine years after its revolution succeeded, unable to recover any money from Europe.
Based on the above, the president is called upon once again to re-orientate the priorities of his discourse toward launching a series of immediate reforms to restore public trust, beginning with an initiative by the security forces’ to recover stolen property along the shoreline and riverbanks and a government circular ordering the public administrations and bodies to remove the immunities from their employees. Of course, the need to issue these immediate decisions does not negate the need for efforts to fortify the judiciary’s independence, the first being the prompt adoption of the bill on the independence and transparency of the judiciary.
Keywords: Lebanon, President, Judiciary, Judicial independence, Legislation