“Reconsidering the transfers is possible and is left to the discretion of the Higher Judicial Council”.
The President of the Republic, General Michel Aoun, did not sign the draft decree of judicial formations and transfers prepared by the Higher Judicial Council, providing a series of remarks, and pointing out that reviewing these transfers is available on every time and occasion, and it is left to the consideration of the Higher Judicial Council.
President Aoun’s position came in a letter sent by the Director General of the Presidency, Dr. Antoine Choucair, to the Prime Minister, Dr. Hassan Diab, through the General Secretariat of the Presidency of the Council of Ministers.
Text:
Excellency Prime Minister Doctor Hassan Diab
c/o the General Secretariat of the Presidency of the Cabinet
Dear Sir,
Based on the guidance of his Excellency the President of the Republic General Michel Aoun, I am honored to inform you of his Excellency's remarks on the draft of judicial transfers and to request its consideration by the concerned ministers, without considering this letter as a Constitutional precedence because of the abstention by his Excellency from signing an ordinary decree which promulgation by signing is submitted to his absolute discretion pursuant to the provisions of the Constitution and the requirements of his Constitutional oath to respect "the Constitution and laws of the Lebanese Nation":
First: First of all, there are two Constitutional constants that must be emphasized in addressing the judicial transfers:
1- Article 20 of the Constitution provides for the independence of the judicial function (..."The judges shall be independent in the performance of their functions"...) and for judicial guarantees, the terms and limitations of which are determined by law and those are guarantees enshrined in the article of the Constitution for judges and litigants alike. Hence, article 44 of the Judiciary (Legislative decree No.150 of 16/9/1983 and its amendments) stipulates that "the judges are independent in performing their jobs and shall not be transferred or dismissed unless in conformity with this law". The law has incorporated a wide array of guarantees under Article 20 of the Constitution.
As for the intended and necessary independence of the judiciary, in practice and by text, it cannot possibly mean that this authority has no relation with the various authorities, namely the legislative and executive powers, for this interpretation contradicts the principle of separation, balance and cooperation of powers upon which the Lebanese Constitutional system is based by virtue of paragraph (e) of the preamble of the Constitution. Otherwise, the Lebanese Constitutional system will be caught in a vice similar to the hard experience of Italy in the nineties, before getting to overcome it, and which was known as "the Government of Magistrates".
It should be noted that the law gradually provided the Judiciary represented by the Higher Judicial Council, with a qualitative independence pertaining to the draft of judicial transfers, assignments and secondments by virtue of law No. 389 of 21/12/2001 that has abolished and replaced paragraph (b) of Article 5 of the Judiciary. There is no brighter evidence of the above than the restitution by the Higher Judicial Council of the draft of transfers to the Minister of Justice without any amendment, which means that it didn't take into account any of the minister’s observations on this draft.
2- The ordinary decree is one efficient means that the Constitution has maintained, even after the 1990-amendments, at the disposal of the President of the Republic, to help him honor his Constitutional oath, so it sets him free of any time constraint or any restriction other than the Constitutional and charter ones, whenever he issues it by affixing its signature pursuant to Article 54 of the Constitution, contrary to when decrees are based upon a decision by the Cabinet. Then, decrees become time-bound and their restitution is subject to a special mechanism. The draft of judicial transfers is promulgated by an ordinary decree co-signed by the concerned ministers, the Prime Minister and the President of the Republic. Each has his Constitutional considerations pursuant to articles 49, 54, 64 and 66 of the Constitution that transcends any other text, so that any signature is not a formal and self-evident procedure, but is considered as one main component of the decree, as it relates to the Constitutional powers. When the draft decree is submitted to the President, it is subject to his absolute discretion pursuant to his oath requirements, especially when it comes to verifying that it abides by the provisions of the law. If it is an obligation for the President of the Republic or any other official of the legislative or executive powers not to interfere in the work of the Judiciary, it is the President’s duty to interfere in the judicial transfers whenever he spots a defect that would harm the unity and independence of the Judiciary in performing its mission; those unity and independence that are threatened by every unfairness or injustice or abnormal situation suffered by a member of this authority, due to transfers that fail to take into account the Constitutional standards of merit, entitlement, competence and efficiency, in addition to the criteria set by the Higher Judicial Council that simulate the Constitutional standards, inter alia productivity, seniority and integrity.
Those two Constitutional constants don't imply at all a politicization of or an interference in the Judicial transfers, but on the contrary, they fall into the category of guarantees that should be made available to the magistrates, by virtue of the provisions of Article 20 of the Constitution. The oath taken by the chief of the Higher Judicial Council and all its members before the President of the Republic is the best proof that the President is the reference in all matters pertaining to the performance of the Council and the Constitutional guarantees of the Magistrates, which were referred by the Constitution to the Law.
Second: The assignment of titular judges in the Committee of Cases and the Committee of Legislation and Consultations of the General directorate of the Ministry of Justice to work in the appeal courts violates the principle of full-time job stipulated by the law to regulate the work of the Ministry of Justice, because those judges should be nominated by a decree based on the proposal of the Minister of Justice. Even the Higher Judicial Council isn’t legally involved in their appointment if we are to strictly apply the relevant texts (Articles 7, 15 and 32 of the Law regulating the work of the Ministry of Justice/ Legislative decree No. 151 of 16/9/1983). Also, article 25 of the law states that the Minister has the right, by a unilateral decision based on the proposal of the director-general of the ministry, to appoint those judges to perform legal functions in various public administrations, without resorting to the Higher Judicial Council, thus ensuring that the Judges at the Ministry of Justice are subject to texts of their own.
The dedication of the titular judges to the Committee of Cases and the Committee of Legislation and Consultations aims at enabling them to carry out the tasks assigned to them by virtue of the texts in force, to ensure the functioning of the various State utilities and to defend the interests and rights of the State by following up on the cases brought against it, a fact that requires full preparedness and daily work. Therefore, the legislator has made provision for additional compensations to them.
Third: The judiciary judges of the Military Tribunal are appointed by a decree based on the proposal of the Minister of Justice and the Minister of National Defense and upon approval of the Higher Judicial Council (Article 13 Military Judiciary). It is true that this mechanism of suggestions was not strictly adopted for various judicial transfers, but consultations used to be held with the Ministers of Justice and National Defense to select the judges for the Military Tribunal. However, this is not the case with regards to the current transfers.
As for the claim that the right of suggestion is only formal as long as it only leads to a conclusion with the approval of the Higher Judicial Council, it is untrue and resulting from a superficial reading of the content of the above-mentioned article 13, since the right of suggestion implies de facto the exercise of a Constitutional prerogative by signing or not the draft decree. It should be noted that Article 1 of the Military Judicial Law stipulates that the Minister of National Defense shall be given towards the Military Courts all the prerogatives granted to the Minister of Justice towards the Courts of Justice, provided that they don't contradict the provisions of this law.
However, saying that Article 5 of the law of the Judiciary has implicitly repealed Article 13 of the law of the military justice, as is the position of the Higher Judicial Council in its response to the letter of the Minister of National Defense, is groundless in light of the following arguments:
1- Article 1 of the law of the Judiciary (Legislative decree No.150 of 16/9/1983 and its amendments) stipulated that this law was put in place to organize the Judiciary in five chapters that encompass the provisions pertaining to the Higher Judicial Council, the judicial organization, the judges' system, and the organization of the judicial inspection and justice auxiliaries. This expressly indicates that this law doesn't address the organization of the military justice, which remains exceptional and its specific provisions shall be followed when appointing its judges.
2- The law of military justice (Law No. 24 of 13/4/1968 and its amendments) regulates the work of the military justice bodies, whether the military court of cassation, or the permanent military court or the single military judges or the military public prosecution or the investigative judges, as well as everything pertaining to the military justice, which is an exceptional judiciary and to which the legislator has designated a special law.
3- Article 11 of the law of the military justice stipulates that the job of the Government commissioner at the military tribunal shall be performed by a judge of the eleventh grade and above, who shall be assisted by one or several judges or by one or several officers who hold a bachelor degree in law and from the rank of captain and above. The Minister of National Defense shall mandate the military assistants men. Shall this article also be considered as null in conjunction with Article 5 of the law of the Judiciary and can we deny the minister of National Defense this prerogative?
4- The right to suggest the appointment of judiciary judges to all the bodies of the Military Tribunal does not push them out of the Judiciary with regards to their salaries and promotions, and they are subject to the judicial inspection and competent disciplinary councils at the Judicial justice, provided that they return to those Courts by following the same procedure of their appointment at the military justice.
5- The new or modern legislation doesn't cancel a previous text if it is a special one, as the provisions of the military justice, and the inclusion of Article 136 of the law of the Judiciary to cancel all legal provisions that are contradictory to or inconsistent with its provisions, can't be applied to the special laws. The military justice law actually reinforces this principle and we have previously explained that with regards to appointing military auxiliaries to the government commissioner. Perhaps, the most illustrative evidence is that the law of the Judiciary and its amendments have cancelled the legislative decree No.72 of 1/2/1933, the law of 18/9/1948 and the decree No.121 of 12/6/1959, a total tacit abrogation, and the decree No. 7855 of 16/10/1961, a partial tacit abrogation; and the law No. 65/49 of 6/9/1965, a total express cancelation by virtue of Article 136 of the law of the Judiciary.
6- Any course of action that is contrary to the aforementioned interpretation of Article 5 of the law of the Judiciary would render the formation of the judiciary council, the nomination of judicial investigative judges, the formation of private banking courts and the nomination of the heads of all judicial committees provided for under special laws, contrary to the law, thus deeming all judges as having no legal legitimacy. Can one imagine what the legal and judicial consequences of such an interpretation would be?
In fact, the opinion of both the legislative and consultation committees and the higher consultative body at the Ministry of Justice, despite the lack of benchmarking and solution settlement in case of conflict between two judges, is not binding, but enlightens the elaboration of a proper conviction.
Fourth: As the Higher Judicial Council has realized that the draft of transfers and the relevant decree have been fragmented to overcome many formalities, including the appointment of judges in non-vacant positions, it has retrieved the draft decree that wasn't signed by the President. However, it is also uncommon to annex to any draft decree observations, responses, written and mutual justifications while affixing the minister's signature. It is also unfamiliar and contradictory to the principle of the decree independence and executive force, regardless of any reservation expressed upon the ministerial signature thereof, which binds the signing minister and makes him absolutely and fully accountable for his signature, without any reservation or mitigating justification.
Fifth: Every draft of transfers has criteria set by the Higher Judicial Council and the current Council has set the following criteria to be abided by when conducting transfers: Competence, integrity, productivity and seniority; we should not deviate from those criteria through exceptions that would lead to injustice, exclusion, targeting and submission to the will of other than the Higher Judicial Council. The Minister of Justice has guaranteed that there would be no political interference in these transfers and the abovementioned criteria would be respected.
Thus, the signatories of the decree of transfers, starting from the Minister of Justice and last the President of the Republic who alone has taken the oath of preserving the Constitution and the laws of the Lebanese Nation, shall verify the presence and comprehensiveness of those standards, which is not the case with the current draft of transfers, and the examples are countless. Those criteria are Constitutional and others, set by the Higher Judicial Council, are not contradictory to the former, but they were bypassed in many instances.
Sixth: The mentioned criteria are verifiable because the grades of judges are well known (Seniority), as well as productivity, integrity and competence (judicial inspection and first chiefs in the provinces). Let us take the criterion of seniority, for instance, which is easy to monitor in the light of judges’ grades. It is certain that the failure to observe it leads to a distorted judicial hierarchy in favor of the lower grades. It deprives the higher grades judges of any incentive to work because they will feel underrated and aggrieved, unless there are other reasons that justify their removal from their positions, as is the case when other criteria referred to in this clause, are not met.
Seventh: The distribution of judges according to the draft judicial transfers did not take into account the size of cases before the courts, which would create a state of imbalance among the prosecution and ruling judges and among ruling judges themselves, and would negatively impact the guarantees of the litigants, which are also Constitutional guarantees, in terms of their right to a fair justice without any delay or postponement. For instance, the investigative judge in Baabda looks into an average of 1200 cases (the number of investigative judges in Baabda is 11, including the first investigative judge); while the investigative judge in Beirut looks into around 200 cases (The number of investigative judges in Beirut is 10, including the first investigative judge). As for the Bekaa criminal court, with two chambers, it examines around 5000 cases as an average; whereas the Beirut criminal court which consists of 3 chambers, looks into an average of 3000 cases.
Eight: The disciplinary sanctions have led to the appointment of the judges, who they were subject to them, as additional counselors or in workplaces far away from their places of residence. This is not something functionally or geographically reprehensible, because any judicial job is sublime and considered as a mission; except that this contradicts the text of Article 89 of the Law of the Judiciary which explicitly states that “…in the event of downgrading, the judge shall retain the length of his seniority for his promotion…”.
In fact, by doing so, the Higher Judicial Council has imposed on those judges an additional disciplinary sanction without any legal right, and it goes without saying that it has placed those judges who underwent a disciplinary punishment and remained in the judicial service, outside the judicial workforce that the Judiciary desperately needs as we all know.
Ninth: There will be no independence of the judiciary unless it becomes free of the sectarian constraint by strict implementation of Article 95 of the Constitution. Indeed, the President has sought from the Parliament the interpretation of that article to determine its provisions and stages and the requirements to abolish confessionalism from our public life. However, it is striking that the Higher Judicial Council has consecrated, for the first time, in writing and expressly, the confessions of all the judicial positions in the public prosecution offices, the investigation courts and the presidency of all the chambers.
Addressing the parliamentarians and the whole world, the President once said “existence outside the frame of freedom is a form of death” and today his Excellency says “the emergence of the Constitutional powers outside the frame of the Constitution and the law is a form of their death”, while we are in dire need of a justice system that observes, pursues, investigates, questions, holds accountable and fights corruption with utmost seriousness and restitutes the funds that were looted or wasted to the State and the plundered people. This means that Justice shall conserve its strength of unity, standing and authority with determination, resolve and firmness, while totally rejecting any attempts of subordination, custody or soil-sharing, whether political, authoritarian, regional, confessional or sectarian, countering all kinds of intimidation or invitation. A modern law has indeed reinforced and consolidated that, and his Excellency the President has reiterated on several occasions that the doors of the presidential palace are always wide open to the judges for support in this context and at all levels.
Therefore, reconsidering those transfers in light of all the above is possible at all times and occasions, and is left to the discretion of the Higher Judicial Council. For instance, thirty judicial judges have graduated from the judicial institute and should be allocated to judicial positions. This will preserve the authority of the higher judicial reference which, even though it has no legal personality, it rules a power that we are desperately need under the dire circumstances our country Lebanon is going through.
Director- General of the Presidency
Antoine Choucair