President of the Republic, General Michel Aoun, did not sign the draft decree of judicial formations and transfers prepared by the Supreme 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 Supreme 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.
Dear Prime Minister, Dr. Hassan Diab,
Through the General Secretariat of the Presidency of the Council of Ministers.
According to the directives of His Excellency General Michel Aoun, I have the honor to inform you of his Excellency’s remarks on the project of judicial transfers, with the wish to inform them of the ministers concerned for information and consideration. Issuing it, by signing it, at its absolute discretion, pursuant to the provisions of the Constitution and the requirements of its constitutional division, by respecting the “Lebanese nation’s constitution and laws”:
First: First of all, there are two constitutional constants that must be emphasized in the approach to judicial transfers:
1-Article 20 of the constitution provides for the independence of the judicial function (“Judges are independent in carrying out their jobs”), and it also provides for judicial guarantees that the law defines its conditions and limitations, which are guarantees that the constitutional article preserves for both judges and litigants. Therefore, Article 44 of the Judicial Judiciary Law (Legislative Decree No. 150 of 9/16/1983 and its amendments) stipulated that “judges are independent in carrying out their duties and cannot be transferred or dismissed except in accordance with the provisions of this law.” The law noted a wide range of guarantees as required by Article 20 of the Constitution.
As for the independence of the desired and necessary judicial authority, in practice and text, it cannot mean that this authority has no relationship with other authorities, namely the legislative and procedural powers, because this interpretation contradicts the principle of separation of powers and their balance and cooperation on which the Lebanese constitutional system is based on paragraph (e) From the forefront of the constitution, or else the Lebanese constitutional system fell into the most dangerous taboo represented by the cruel experience that Italy suffered in the 1990s, before its disposal, which was called what was known as the “Government of judges”.
This is in addition to that the law gradually provided specific judicial independence to the judiciary represented in the Supreme Judicial Council, with regard to the status of the draft transfers, attachments and judicial assignments, as indicated by Law No. 389 of December 21, 2001 which abolished and replaced paragraph (b) of Article 5 From the judicial justice law. There is no bright evidence for the above except for what the Supreme Judicial Council has done by returning the draft transfers to the Minister of Justice without any amendment, which means that he did not take any of its observations on this project.
2- The regular decree is one of the few and effective means that the constitution has kept, after the 1990 amendments, at the behavior of the President of the Republic in order to achieve the constitutional oath, so it is not bound by a time restriction or any other restriction other than constitutional restrictions, when it issues it by placing its signature on it pursuant to Article 54 of the Constitution. Contrary to what is the case when the decrees are taken based on a decision by the Council of Ministers, then they are subject to a time limit and a special mechanism for their response. The project of judicial transfers is issued by a regular decree signed by the concerned ministers and the Prime Minister, up to the President of the Republic, and each of them has its constitutional status pursuant to Articles 49, 54, 64 and 66 of the Constitution, this constitution which transcends every text, so that any signature is not a formality and for collection, but is considered one of the fundamental elements of the decree, as it relates to constitutional validity. As for the draft decree contacting the President of the Republic, it is subject to his absolute discretion pursuant to the requirements of his department, especially in terms of the authority that verifies that it is abiding by the provisions of the Constitution. If the President of the Republic, or any other official in the procedural and legislative branches, should not interfere in the work of the judiciary, that is, when he does his job, except that it is the duty of the President of the Republic to constitutionally interfere with the exhibition of judicial transfers if he sees that there is an imbalance that would affect the unity of the judiciary and its independence in the performance of its mission, these unity and independence that are threatened by every injustice, injustice or an abnormal situation that is afflicted with members of this authority through transfers that do not take into account the constitutional criteria of merit, entitlement, jurisdiction, and efficiency, in addition to the criteria set by the Supreme Judicial Council that simulate constitutional standards, including productivity, seniority and integrity.
These two constitutional fixes do not mean at all politicization of or interference with judicial transfers, but on the contrary, they fall under the category of guarantees that must be available to judges pursuant to the provisions of Article 20 of the Constitution. The oath taken by the Head of the Supreme Judicial Council and all members before the President of the Republic and no one else is the best proof of the President’s reference in all matters pertaining to the performance of the Council and the guarantees of constitutional judges, which the Constitution referred to the law.
Second: The assignment of original judges in the cases, legislation, and consulting bodies of the General Directorate of the Ministry of Justice to work in courts violates the principle of full-time stipulated in the law regulating the Ministry of Justice, because these judges are appointed to the two bodies mentioned by decree based on the proposal of the Minister of Justice, so that the Supreme Judicial Council does not participate in a law in their appointment if we strictly apply the relevant texts (Articles 7, 15 and 32 of the Law on Organizing the Ministry of Justice / Legislative Decree No. 151 of 9/16/1983). In addition to that, Article 25 of this law states that the Minister of Justice, by a single decision based on the proposal of the Director General of the Ministry, may delegate these judges to work in legal positions with various public administrations, without referring to the Supreme Judicial Council, which confirms that Judges at the Ministry of Justice are subject to provisions of their own.
The dedication of the original judges in the cases, legislation and consultations bodies is due to enabling them to carry out the tasks entrusted to them according to the provisions in force for the conduct of the various state facilities and defending the interests of the state and its rights by following up on the cases brought against it, which requires a full system and daily work. Therefore, the legislator allocated these judges additional compensation.
Third: Judicial judges before the Military Court are appointed by decree based on the proposal of the Ministers of Justice and National Defense and after the approval of the Supreme Judicial Council (Article 13 Military Judiciary). It is true that this mechanism of suggestion was not strictly adopted in various judicial transfers, but consultations were held with the Ministers of Justice and National Defense to select the military court judges, which is not the case with the current transfer exhibition.
As for the claim that the right to suggest is formal as long as it does not reach a result except with the approval of the Supreme Judicial Council, it is an incorrect claim resulting from a superficial reading of the text of Article 13 mentioned, since the right to suggest implies by law the exercise of constitutional power by signing the draft decree or not, how not, and the first article of the Military Judicial Law stipulated that the Minister of National Defense shall be given all military powers granted to the Minister of Justice towards the courts of justice in all that do not contradict the provisions of this law.
As for the statement that Article 5 of the Judicial Judiciary Law has implicitly repealed Article 13 of the Military Judicial Law, as is the position of the conservative Supreme Judicial Council in response to the letter of the Minister of National Defense, it is incorrect in light of the following arguments:
1- The first article of the Judicial Judiciary Law (Legislative Decree No. 150 of 9/16/1983 and its amendments) stipulated that this law was put in place to organize the judicial judiciary in five chapters that include the provisions pertaining to the Supreme Judicial Council, the judicial organization, the system of judges, and the organization of judicial inspection, the system of judicial assistants, which expressly indicates that this law does not address the organization of the military judiciary, which remains an exceptional judiciary, whose assets must be observed when appointing its judges.
2- The Military Judiciary Law (Law No. 24 of 4/13/1968 and its amendments) regulates the military judiciary from a military appellate court, a permanent military court, individual military judges, a military public prosecutor, and investigative judges, and everything related to the military judiciary, which is an exceptional judiciary that the legislator has designated by special law.
3- Article 11 of the Military Justice Law stipulates that a Government commissioner with the Military Court be appointed as a judge from the eleventh degree and above, assisted by a judge, several judges, an officer, or several law enforcement officers, provided that the rank of those should not be less than that of a captain and above. And the Minister of National Defense shall delegate the soldiers to such aides. Can this article also be considered as a correlation nullified by Article 5 of the Judicial Judiciary Law, and can we deny this competence to the Minister of National Defense?
4- The right to propose the appointment of judicial judges to the military court with all its organs does not lead to their removal from the justice system for their salaries and promotion, and they are subject to judicial inspection and disciplinary councils specialized in the judicial judiciary, provided that they are returned to the judicial judiciary by following the same procedures that were followed to appoint them to the military judiciary .
5- Modern or new legislation does not cancel a previous text for it in the event that this text is one of the special texts, as they are the provisions of the Military Judicial Law, and the inclusion of Article 136 of the Judicial Judiciary Law to cancel all legal provisions that are contrary to or inconsistent with its provisions cannot be It applies to special laws. What reinforces this principle is what is stated in the Military Judicial Law and we explained above in terms of appointing military commissioner assistants to the Government. Perhaps the most prominent evidence of this is that the Judicial Judiciary Law and its amendments canceled Legislative Decree No. 72 dated 1/2/1933 and the law dated 18/9/1948 And Decree No. 121 dated 6/6/1959, a complete implicit abolition, and Decree No. 7855 dated 10/16/1961, partly implicit abolition, and Law No. 65/65 dated 9/6/1965, completely explicit abolition under Article 136 mentioned in the Judicial Judiciary Law.
6- Any course contrary to the foregoing in the interpretation of Article 5 of the Judicial Judiciary Law would make the formation of the Judicial Council, the nomination of judicial investigation judges, the formation of private banking courts, and the appointment of the heads of all judicial committees noted in special laws, all of which would be done contrary to the law, which would make these judges lack legal legitimacy. Can the legal and judicial consequences of such an interpretation be conceived?
It remains that the opinion of both the Legislative and Consultative Authority and the Higher Consultative Body in the Ministry of Justice, as it was marred by the formation of the Supreme Authority in the absence of a weighting reference and resolving the dispute in the event that it occurred between two judges, but it is a non-binding opinion and gives illuminations that contribute to the formation of proper conviction.
Fourth: As the Supreme Judicial Council has resorted to the fragmentation of the draft transfers and the decree prepared for it, so that many problems have been overcome, the first of which is the appointment of judges in non-vacant locations, so that the draft decree that the President of the Republic did not initiate is signed, except that any draft decree is attached to observations, responses and justifications. Sin and reciprocity in the ministerial signature exhibition on it, but it is also uncommon and contradicts the principle of the independence of the decree and its executive power regardless of any reservation it has upon the ministerial signature on it, which binds the signed minister and holds him fully and completely responsible for his signature without any conservative or mitigating justification.
Fifth: Every project of transfers contains criteria set by the Supreme Judicial Council, and the current Council has set the following criteria that must be adhered to when conducting transfers: efficiency, integrity, productivity, and seniority, those standards that cannot be derailed from the path of exception, which generates injustice, exclusion, targeting and submission to the will from outside the Supreme Judicial Council. The Justice Minister added a guarantee that there would be no political interference in these transfers, as it would be sufficient to adhere to the above criteria.
Consequently, it is up to the signatories of the decree of transfers, from the Minister of Justice to the President of the Republic, with no other senior officials, to the oath of loyalty to the constitution and the laws of the Lebanese nation, to verify the availability and comprehensiveness of these standards above, which is not the case in the current project of transfers, and the examples are incalculable. These standards are constitutional and other that the Supreme Judicial Council has set and does not contradict, and has been exceeded in many positions.
Sixth: The mentioned criteria are not difficult to verify, because the degrees of judges are known (seniority), productivity also, as well as integrity and competence (judicial inspection and first chiefs in the provinces). Let us take, for example, the criterion of seniority, which is easy to monitor in the light of the degrees of judges. It is certain that failure to observe it significantly leads to a distorted age judicial hierarchy in favor of the lower grades. Others justify their removal from the sites, as is the case when other criteria referred to in this clause are not available.
Seventh: The distribution of judges according to the project of judicial transfers did not take into account the sizes of cases in the courts, which would create a situation of imbalance between the prosecution judges and the judges of the ruling, as between the judges themselves, and that would not negatively affect the guarantees of the litigants, which are also, constitutional guarantees, in terms of their right to fair justice, without delay. For example, the investigating judge in Baabda looks at an average of 1,200 cases (and the number of investigative judges in Baabda is 11, including the first investigating judge), while the investigating judge in Beirut looks at the equivalent of 200 cases (and the number of investigative judges in Beirut is 10 who Including the first investigative judge). As for the Beqaa Criminal Court, whose work is divided into two rooms, it considers approximately 5,000 cases as a minimum, while the Beirut Criminal Court, consisting of 3 rooms, considers approximately 2000 cases as an average.
Eighth: Disciplinary penalties have led to the appointment of judges who have been subjected to them as additional counselors or in centers far from their place of residence. The matter is not reprehensible, either functionally or geographically, because every judicial function is a sublime function and falls under the category of the message, except that this is in contradiction to the text of Article 89 of the Judicial Judiciary Law, which explicitly states that “In the event that the degree is lowered, the judge shall retain the length of his seniority for promotion”.
What the Supreme Judicial Council has done in this context is imposing an additional disciplinary punishment on these judges that does not have a law to impose it, as well as the actual situation of these judges, and they have received disciplinary punishment and remain in the judiciary, outside the judicial workforce, which we all know that the judiciary desperately needs it.
Ninth: There will be no independence of the judiciary if the judiciary is not liberated from the sectarian restriction by strict application of Article 95 of the Constitution, and the President initiated a request from the House of Representatives to interpret this article to determine its provisions, stages, and requirements to abolish sectarianism from our public life. However, it is striking that the Supreme Judicial Council confirmed for the first time, in a written and explicit manner, the doctrines of all judicial centers in the public prosecution offices, the investigation court, and the Presidency of all chambers.
Addressing parliamentarians and the world, the President once said, “Being outside the framework of freedom is a form of death”. Today, His Excellency says, “The emergence of constitutional powers outside the framework of the constitution and the law is a form of their death”. While we need what we need to spend watching, pursuing, investigating, questioning, and combating corruption with utmost seriousness and recovering looted funds in its non-location to return to the state and the plundered people. Authoritarianism, regionalism, or sectarianism, and confronting all intimidation, and a modern law has fortified and strengthened this response, and the President has repeatedly declared, and on more than one occasion, that the doors of the Presidential Palace are always open to judges to support in this context and at all levels.
As for the review of these transfers in light of all of the above, an order is available at all times and occasion, and it is left to the discretion of the Supreme Judicial Council, for example, thirty judicial judges graduated from the Judicial Institute, which will necessitate a ruling to attach them to judicial positions, and what would preserve the prestige of the reference, the supreme judicial authority, which, even though it does not have the moral personality, remains that it administers the authority we desperately need in the difficult circumstances that our country is going through in Lebanon.