While the Mehlis UN Commission inquiring into the assassination of former Premier Rafik Hariri has been grabbing the headlines for these past few months, the rest of the judiciary has been quietly setting out on the path to reassert its prized independence, free of the political pressures that have made its life difficult for decades.

Files on the alleged misdeeds of around 20 judges out of a total of around 500 are currently being studied to see whether there is a case for removing them from their jobs. Although Justice Minister Charles Rizk is emphatic that the judges’ ruling body, the Higher Judicial Council, is in sole charge of running its own house, he hopes that any judges found to be either “indiscreet or incompetent” will be questioned and their cases acted upon within the next three to six months.

In theory, the all-consuming inquiry into the February 14 bomb blast that claimed 20 lives has put significant but less high profile matters on hold. “In no way at all,” said Rizk. “The Hariri investigation is under the charge of a Lebanese investigative judge as well as the UN commission. The judiciary carries out its job independently of the minister and there is no reason why I should become involved. I am just the political authority, an extension of the government.”

That extension included receiving members of the Higher Judicial Council within two weeks of his taking up office. “They sat with me and took the decision to clean their own system. I am not involved in their activities and I should not be,” said Rizk. “Members of the council said they were hoping that with this government and me as minister there would be an end to the [political] pressures that prevented them from implementing Article 95 and getting rid of incompetent judges.” Article 95 of the law stipulates the circumstances in which the council may dismiss judges.

Forced or voluntarily,

the guilty have to go

Shielding the judiciary from political pressure is precisely what Rizk sees as his main role at the ministry. “By the council’s own admission, there was traditional pressure from political circles that prevented them from cleaning themselves of these ‘gentlemen’,” added Rizk. “Now those pressures have been lifted. The council has already taken decisions to ask the Judicial Inspectorate to send them the files on about 20 judges. They will examine them and take the proper decision.”

For Rizk that “proper decision” means that the guilty have to go. “It might also be that the judges [under suspicion] might be bright enough to resign before any formal decision is made to exclude them from the courts,” he said.

The priority is to purge the system of its bad apples rather than to arraign them on appropriate charges, according to the minister. “The prime task is to get rid of them,” he said, “whether they go of their own volition or whether they are excluded.” But punishment isn’t totally out of the picture. “OK, there is a difference here but we have to keep in mind the objective – cleansing the judiciary,” said Rizk. “The High Judiciary Council’s role is to make sure the judiciary is always kept in good condition. If some people have done things that deserve another form of action that can also be dealt with by the inspectorate.”

Politicians tampering

with the law

Of the 10 members of the Higher Judiciary Council, three are ex officio, and the others are either elected by their peers or appointed by the government after consultation with the judiciary. “These are the people that implement Article 95,” said Rizk.

“The Higher Council knows who the [suspect judges] are. I hope the current process will be a quick one but not precipitate. We don’t want any unfairness. I’m not pushing the council – it’s independent of me – but I would say that consideration of the files should take three to six months before decisions are made.”

The change in environment that allows actions unthinkable until this year is attributable to several factors and, in any case, some of the most flagrant abuses of the legal system in past years have had little to do with the judiciary, whose task is to administer the law not to make it. The 24-hour change in planning laws that allowed the construction of the multi-story Cap sur Ville development half way up the mountain between Sin El Fil and Broummana was not the judiciary’s fault.

“That was very unhappy but it had nothing to do with the law,” said Rizk. “That had to do with the way Parliament and politicians play with the law but it is an old case and I doubt it would happen again. I am a lawyer myself and so I am very familiar with the systems in both Lebanon and France [Rizk has a French Ph D in law]. The legal system in Lebanon does not have to envy that of any other country. What we should envy is the way it is applied elsewhere.”

‘Corrupt judges are

a worldwide problem’

It was also scarcely the fault of the judiciary that in December 1997 an amnesty law on drugs offences was passed – and given a deadline that was backdated two years to suit the particular needs of an influential politician facing serious charges. Although there are stories in legal circles of some cases where judgments appeared to fly in the face of the facts, almost none came to public light because of the threats and pressures on the judiciary to try to influence judgments. Ironically the actual court system seems to have been sometimes spared such threats because some potential cases were never referred to them.

So isn’t the present minister himself under pressure? “Do you know any minister in England who is not under pressure?” countered Rizk. “Everybody is under pressure but it depends on how you conceive of your responsibilities. To me maybe it is easier because I am not indebted to anyone and also I think that Lebanon is in such dire straits today that we need to devote ourselves body and soul for our country.”

Some lawyers maintain that the judicial system was sound and functioned well until the early 1990s. Rizk disagrees. “Corrupt judges are a worldwide problem, not a Lebanese specialty,” he said. “I’m not sure that the Lebanese judiciary was ideally pure before 1990. There were problems that have always been there, as everywhere, but now we have to get in and solve them or get rid of them.”

Problem with arbitration

is finding an arbiter

Since the legal system and its application also underpins contracts and most commercial dealings, any deficiencies have an inevitable consequence of denting confidence, especially that of foreign companies wanting to do business in Lebanon. Major contracts generally stipulate not only what language the contract shall be written in (to prevent ambiguities that may arise from a translation) but also under what state’s laws the contracts will be enforceable. They frequently also state that in case of dispute where independent arbitration is sought both parties will use the services of a particular arbitration court. This is why the Cellis/France Telecom argument with the government over accusations that it had breached its Build-Operate-Transfer contract was referred to a hearing in Paris.

“It’s not a matter of [bad] law in Lebanon,” said Rizk. “The problem is in the implementation. There is also a problem of procrastination and the subsequent length of time cases take to get heard.” The downside of a resort to arbitration is that it is expensive but it does have the virtue of being swift. However, when it comes to arbitration cases, “the difficulty arises in choosing the person who will be the arbiter.”

‘Judiciary’s problems are

like those of the country’

The calls for legal reform have been loud and long these past few years but mainly falling on deaf ears. Even now there is no magic quick fix on the horizon designed to produce a rapid restoration of business confidence in the law. “You cannot separate the judiciary from the whole political pattern of the country,” said Rizk. “A lack of confidence is not just a problem of the judiciary. It is a reverberation of the lack of confidence in the country as a whole because of the very precarious security situation. Events [such as the bomb attack on LBC presenter May Chidiac’s car] shake the confidence in the entire country,” he added.

So since there isn’t an instant panacea to provide legal comfort, how long is it going to take before the business community, Lebanese and foreign, feel comfortable? “Re-establishing a stable political atmosphere is not an event but a long process,” said Rizk. “And it is not only local events but also those in the entire region that are important for confidence in business and every other aspect of life.” Whatever the level of resilience in Lebanon, repeated and regular explosions since the massive blast of February propel the country backwards each time it seems to be making modest progress. “A series of explosion on the public transport system in London didn’t shatter Britain because it is basically a stable country,” Rizk observed.

Even the politicians

‘are getting better’

Although total independence of the judiciary by any yardstick was an unreasonable expectation as long as Syria exercised tight control over the country, the lack of a physical Syrian presence in Lebanon since April has been replaced by a period of violent instability not seen since the days of the war. Even so, there are some faint bright spots.

“We have more awareness now and the possibility of another 24-hour change in the planning laws has disappeared,” said Rizk. “We also have a better way of transferring that awareness and public opinion into parliamentary control.”

So does an analysis that says the legal system is fine and just needs implementing also apply to political life? “I think we have better politicians,” said Rizk. “Look at the commission on the electoral law. Its members are very honest people who are working very hard to establish a good electoral law.” While producing a law that is perceived by the majority of the population as equitable will be to achieve what has eluded Parliament for decades, its own application will be felt only in years to come when there are new elections. Yet Rizk sees it as having wider and more immediate significance. It will help create an environment that “will be conducive to improvements in other directions.”

He also sees even the Mehlis inquiry as having beneficial spin-off effects. “Indirectly it has shaken up the whole legal, security and judiciary apparatus,” he said. “The inquiry has shown how modern criminal investigations should be undertaken using new technology. It has established a model that will have positive reverberations on the Lebanese judiciary. The shake-up will also have a very longstanding, very positive consequence on Lebanese society as a whole.”