An incomplete constitution: Lebanon and its judicial branch
The judicial power is one of the three branches of a democratic state. The other two are the executive power (often dualist, composed of a Head of State and Government) and the legislative power, which is composed in Lebanon of one parliamentary chamber (unicameral parliament), the Chamber of Deputies.
In well-defined democracies these three branches of a state are separate from one another. Their roles and functions are usually entrenched within a written constitution, a superior piece of legislation immune from the whims of simple majorities.
The purpose for such separation of powers, as advocated by Montesquieu, is to prevent the concentration of powers in the hands of one branch to the exclusion of the other, with each such branch serving as a check on the other two branches.
The theory of separation of powers has become the fundamental backbone of every democracy in the Western world.
The Lebanese Constitution provides for a separation of the three branches of the State, however, it seems to subordinate the judicial power to the Legislative power, thus curtailing somehow its independence.
The provisions dealing with the Executive power are found under Chapter 2, and those dealing with the Legislative power are found under Chapter 4.
By contrast, one single section, Article 20, deals with the judicial power. It is found under the “General Provisions” (Chapter 1) of the Constitution.
While Article 20 provides that "judges are independent in their career”, it nevertheless subordinates the judicial power's functions to an act of Parliament.
Indeed, it further provides that: “The judicial power […] shall function within the limits of an order established by the law and offering accordingly the necessary guarantees to judges and litigants. […] The law shall determine the conditions and limits of the judicial guarantees.”
This principle is also found in the first section of the Code of Civil Procedure (itself an act of Parliament): "Justice is an independent authority vis-à-vis other authorities on trial and decision making. And independence will be limited only by the limits stated in the Constitution ".
The mere fact that the Judiciary does not obtain its powers from a Grundnorm (supreme norm), in our case the Constitution, but rather from an ordinary legislative act, puts the institution in jeopardy. It makes it vulnerable and dilutes its role as the protector of the fundamental rights of the citizens against potential abuses by the ruling political class.
The Lebanese Constitution appears to favour the supremacy of the Parliament over the remaining two branches of the State, thus robbing the Judiciary of its role as a provider of checks and balances as is customary in Western democracies.
In a true democracy, the independence of the Judiciary implies its political neutrality and its separation from the other branches of government. It also implies that courts are shielded from outside influences such as lobbyists and private interests. Judges are thus free to decide cases, issue rulings and take decisions based on their conscience and the Rule of Law, free from the influence of a superior order, be it a Parliament of a Head of State.
In a democracy, it is fundamental to distinguish between the judicial independence of a judge in the exercise of his function and the independence of justice as an authority. Any outside interference, or appearance thereof, would undermine the independence of a judge.
The fact that the Lebanese Constitution grants the Legislative power authority to define the rules of engagement of the Judiciary, and in particular its operational budget, gives the Parliament the upper hand in determining the fate of the Judiciary.
In other words and in theory, the Lebanese Parliament has the power, to amend as it sees fit, the mechanism of appointment, dismissal, and remuneration of the members of the Judiciary.
This may be interpreted to mean that the Parliament has the ultimate power to either reward the Judiciary if it falls in line with its policies, or at the contrary curtail its powers, and thus its independence, if it proves to be too rebellious.
Parliament, with its financial power over the enforcers of the law undermines the independence of the judicial power.
Because of this apparent imbalance of powers, which is engraved in the Constitution, it is legitimate to question the independence of the judiciary power in Lebanon, as it may fall victim to political pressure and direct intervention.
On two occasions, political leaders have confirmed the supremacy of Parliament over the Judiciary, thus opening the subject to debate:
One: Mr. Suleiman Franjiyeh (while still Member of Parliament, and prior to his election as President) wrote in a letter addressed to President Charles Helou on 24th November 1968: "We have trouble accepting in a small country like Lebanon, the independence of the judiciary without any intervention from political authority. And I would like to admit; an admission of fault is a virtue. Myself as a politician I have tried in the past to intervene to give a judge a promotion for a higher position. This same judge would not have had this promotion without my interference, despite his skills and qualifications for this promotion ".
Two: A declaration made by Mr. Walid Jumblat on 3rd January 1995, where he declared: " In the end, the judge in Lebanon is an officer of the State”, he said in a radio interview that justice suffers from political pressures. He stated that: "I am a politician and like all politicians I pressure these practices, whoever says otherwise is a liar."
Lebanon is currently a work in progress. It aspires to embrace democracy and its fundamental principles.
We propose that Parliament tables an amendment to the current Constitution to incorporate a Charter of rights that would protect the rights and obligations of minorities, of the weak, and the poor. By doing so, Parliament should also incorporate a section that provides for the independence of the Judiciary. It would thus avoid any future byzantine discussions about the independence of the judicial system and would afford its people protection from any future potential abuses by the political power.
We are of the view that in the absence of such constitutional guarantees, any discussion of democracy will remain vain.
In the words of U.S. President Andrew Jackson (1822): “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”
E.C
The judicial power is one of the three branches of a democratic state. The other two are the executive power (often dualist, composed of a Head of State and Government) and the legislative power, which is composed in Lebanon of one parliamentary chamber (unicameral parliament), the Chamber of Deputies.
In well-defined democracies these three branches of a state are separate from one another. Their roles and functions are usually entrenched within a written constitution, a superior piece of legislation immune from the whims of simple majorities.
The purpose for such separation of powers, as advocated by Montesquieu, is to prevent the concentration of powers in the hands of one branch to the exclusion of the other, with each such branch serving as a check on the other two branches.
The theory of separation of powers has become the fundamental backbone of every democracy in the Western world.
The Lebanese Constitution provides for a separation of the three branches of the State, however, it seems to subordinate the judicial power to the Legislative power, thus curtailing somehow its independence.
The provisions dealing with the Executive power are found under Chapter 2, and those dealing with the Legislative power are found under Chapter 4.
By contrast, one single section, Article 20, deals with the judicial power. It is found under the “General Provisions” (Chapter 1) of the Constitution.
While Article 20 provides that "judges are independent in their career”, it nevertheless subordinates the judicial power's functions to an act of Parliament.
Indeed, it further provides that: “The judicial power […] shall function within the limits of an order established by the law and offering accordingly the necessary guarantees to judges and litigants. […] The law shall determine the conditions and limits of the judicial guarantees.”
This principle is also found in the first section of the Code of Civil Procedure (itself an act of Parliament): "Justice is an independent authority vis-à-vis other authorities on trial and decision making. And independence will be limited only by the limits stated in the Constitution ".
The mere fact that the Judiciary does not obtain its powers from a Grundnorm (supreme norm), in our case the Constitution, but rather from an ordinary legislative act, puts the institution in jeopardy. It makes it vulnerable and dilutes its role as the protector of the fundamental rights of the citizens against potential abuses by the ruling political class.
The Lebanese Constitution appears to favour the supremacy of the Parliament over the remaining two branches of the State, thus robbing the Judiciary of its role as a provider of checks and balances as is customary in Western democracies.
In a true democracy, the independence of the Judiciary implies its political neutrality and its separation from the other branches of government. It also implies that courts are shielded from outside influences such as lobbyists and private interests. Judges are thus free to decide cases, issue rulings and take decisions based on their conscience and the Rule of Law, free from the influence of a superior order, be it a Parliament of a Head of State.
In a democracy, it is fundamental to distinguish between the judicial independence of a judge in the exercise of his function and the independence of justice as an authority. Any outside interference, or appearance thereof, would undermine the independence of a judge.
The fact that the Lebanese Constitution grants the Legislative power authority to define the rules of engagement of the Judiciary, and in particular its operational budget, gives the Parliament the upper hand in determining the fate of the Judiciary.
In other words and in theory, the Lebanese Parliament has the power, to amend as it sees fit, the mechanism of appointment, dismissal, and remuneration of the members of the Judiciary.
This may be interpreted to mean that the Parliament has the ultimate power to either reward the Judiciary if it falls in line with its policies, or at the contrary curtail its powers, and thus its independence, if it proves to be too rebellious.
Parliament, with its financial power over the enforcers of the law undermines the independence of the judicial power.
Because of this apparent imbalance of powers, which is engraved in the Constitution, it is legitimate to question the independence of the judiciary power in Lebanon, as it may fall victim to political pressure and direct intervention.
On two occasions, political leaders have confirmed the supremacy of Parliament over the Judiciary, thus opening the subject to debate:
One: Mr. Suleiman Franjiyeh (while still Member of Parliament, and prior to his election as President) wrote in a letter addressed to President Charles Helou on 24th November 1968: "We have trouble accepting in a small country like Lebanon, the independence of the judiciary without any intervention from political authority. And I would like to admit; an admission of fault is a virtue. Myself as a politician I have tried in the past to intervene to give a judge a promotion for a higher position. This same judge would not have had this promotion without my interference, despite his skills and qualifications for this promotion ".
Two: A declaration made by Mr. Walid Jumblat on 3rd January 1995, where he declared: " In the end, the judge in Lebanon is an officer of the State”, he said in a radio interview that justice suffers from political pressures. He stated that: "I am a politician and like all politicians I pressure these practices, whoever says otherwise is a liar."
Lebanon is currently a work in progress. It aspires to embrace democracy and its fundamental principles.
We propose that Parliament tables an amendment to the current Constitution to incorporate a Charter of rights that would protect the rights and obligations of minorities, of the weak, and the poor. By doing so, Parliament should also incorporate a section that provides for the independence of the Judiciary. It would thus avoid any future byzantine discussions about the independence of the judicial system and would afford its people protection from any future potential abuses by the political power.
We are of the view that in the absence of such constitutional guarantees, any discussion of democracy will remain vain.
In the words of U.S. President Andrew Jackson (1822): “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.”
E.C