06 July 2005

Editor's note: The following is the final segment in a series on judicial reforms in Lebanon, written by human rights activist Dr. Muhammad Mugraby, a practicing attorney in Beirut, head of the Campaign for Judicial Integrity, and president of the Center for Democracy and the Rule of Law.

III. Administrative and Procedural Reform

In order for reforms to work, changes must be made to the way judges are appointed and to the way the system is managed.

1. Appointment of Judges

(a) The current law permits the appointment of judges from among practicing lawyers but in practice most judges are graduates of the School for Judges. Currently the law permits lawyers with six years of practice, including the years in training, and clerks who have held their positions six years after graduation from law school to sit for an entrance exam. This is inadequate. For success in bringing into the courts of first instance the required level of qualification and experience requires that judges in such courts be selected from among distinguished and successful practicing lawyers with at least 15 years post-training experience and an impeccable professional record. A selection and appointment committee (SAC) for judges, to be selected by Parliament from among distinguished high judges, prominent law professors, distinguished practitioners, and qualified representatives of the lawyers' associations, should be given the power of routinely looking for and selecting judges, and recommending the appointment of new judges or the appointment of already sitting judges to other courts. The council of ministers should be bound to act on the recommendations of SAC. The case files of the lawyers considered for appointment should be fully scrutinized by SAC. The future graduates of the School for Judges should be considered for appointment only as assistant judges and assistant prosecutors. Justices of the peace may be appointed from among assistant judges with not less than five years of service. An appointment to a full judgeship should not be considered for assistant judges before 15 years of experience on that job or 10 years as a justice of the peace.

(b) Appointment of judges on the courts of appeal should also come from among practicing lawyers through SAC. Candidates should have a minimum 20 years of post-training experience. Judges with 10 years experience on the courts of first instance could also be considered for appointment to courts of appeal.

(c) Judges should be appointed without a mandatory retirement age. They may not be reassigned except with their advance consent. They shall not be removed unless impeached or conditions for their retirement are satisfied. They should retire when they are no longer mentally and/or physically fit to serve. In such event, and if they refuse to retire voluntarily, the highest court shall, at the request of the judicial investigation bureau, have the power and duty to rule on their fitness to continue in office. Motion for impeachment of a judge shall be admissible by any judge or practicing lawyer, and shall be filed with the judicial inspection bureau that shall have the power and duty to rule on it. Thereupon, the impeached judge shall cease and desist from performing any judicial duty until tried and finally judged by the highest court.

(d) A judge or an assistant judge shall work full time and may not hold any other office or assignment on any basis including publishing books and teaching. Authoring of literary, but non-law, books or articles shall be allowed at the rate of no more than three articles a year or one book every three years. A judge may not engage in any type of business or commerce on any basis whatsoever. Equally, a judge's spouse may not engage in any business or commercial activities and, if a practicing lawyer, may not practice in the same town where the judge's spouse sits.

(e) Judges shall be provided with adequate offices which shall not be accessible to the public. Lawyers and litigants may place their inquiries only through the competent office of judicial administration (OJA).

2. Administration of the courts and legal process

Lebanese justice is expensive, the legal process is inherently wasteful, and suffers from very low efficiency. Statutory delays are rarely if ever adhered to. There is no system for complete and accurate transcription of court records and hence minutes of hearings mutilate facts and impact negatively the rights of defense. The process of notification leaves a lot to be desired. Judges interfere heavily in the work of the clerks. All this results in long delays, tremendous waste, high cost to litigants and over-work of lawyers and clerks. Following are proposed reforms.

(a) At every court house there should be one central registry headed by a registrar. All actions, applications and other petitions would be filed there and the registrar would issue proper receipts. Incoming papers will be assigned to the respective competent courts. Within the registry, there will be a section that assesses and collects filing fees.

(b) Justice should be almost free. The filing fee schedules, currently based mostly on a calculation of a percentage of the values in dispute, should be abandoned and replaced with simple set fees based on the value of the remedies sought. Under LL10 million will cost LL50,000 and over that amount will cost LL150,000. Applications and petitions with no monetary remedies will all cost LL50,000.

(c) A publicly financed department of legal aid should be established with branches in every court house. Conditions for qualifying for legal aid should be established for civil actions but all defendants in criminal actions should automatically qualify unless they chose to have their own lawyers. An applicant for legal aid in a civil action whose application is turned down should be permitted to act as his own lawyer.

(d) In the courts of every instance there shall be an OJA section headed by a full judge and staffed with assistant judges. All such OJA sections shall be overseen by the chief of OJA, a full judge who shall be appointed by the council of ministers for an indefinite term. The function of the OJA sections should be to monitor and direct the process up to maturity of the pre-trial requirements, and to declare its satisfaction that a case file is ready for a hearing. If there are several judges or divisions within a court then all new cases and applications will be assigned through a computer-based lottery. Until the case is assigned to a particular judge or division of a court, any variations with statutory delays may be approved for good reason. Variations for good cause in the delays for filing appeals or other challenges may also be granted in advance by the respective OJA sections.

(e) A department of transcription shall be established for training and staffing all courts with qualified, computer-aided transcribers who shall record the proceedings verbatim in every court.

3. Administration of the

affairs of judges, assistant judges and staff members

This involves matters of salaries, vacations, leaves and the like. The simple solution is for each judge, assistant judge, or staff member, to conduct such business with OJA. Orders of the Chief of OJA must, of course, be supported by good reason based on the law and, hence, they may be challenged by the aggrieved judge bringing action in due course. The annual budget of the justice system shall be prepared by the office of the chief administrative judge.

IV. Training of Judges in Transition and Continuous Legal Education

The introduction and full implementation of the reforms, through appropriate legislation, requires a transition period. During this period all judges and assistant judges should participate in training seminars, organized by the institute of continued legal education (ICLE), to be created under the same reform legislation, to discuss the issues involved with the implementation in order to reach an adequate level of understanding thereof. Thereafter, ICLE should conduct regular programs of lectures and seminars to keep the judicial community up to date on developments and progress in legal and judicial education. Special programs shall be designed for the benefit of staff members.

Dr. Mohammad Mugraby can be contacted at: law@mugraby.com