Q&A with legal expert Paul Morcos on judicial capacity and accountability

Judiciary must make its own moves

Paul Morcos
Reading Time: 6 minutes

They are somewhat remote issues from the perspective of daily survival in the summer of 2020. But the questions of financial accountability and judicial processing of the complex aspects of the corrupted system and adequate prosecution of corruption are pregnant with implications for Lebanon’s systemic networks of fiefdoms, sublime tribal rulers, and previously extra-judicial interest mongers. Moreover, the judicial issues relating to corruption are innumerable. Seeing the different types of corruption questions that have been raised—from the need to prosecute politically shielded tax evasion to illegal enrichment of officials, and private sector graft and bribery, to the urgent need of changing the cultures of petty corruption of minor administrative officials, falsification of property contract values, and citizen’s complicity in corruption by way of dodging financial and civic obligations—Executive wondered who will handle the judicial complexities and help cleaning up all the untold nuances of the nation-encompassing Lebanese corruption mural. Asking these questions, Executive sat at the virtual table with legal expert Paul Morcos of law firm Justitia.  

How ready is Lebanon from the side of the judiciary and legal professions to deal with corruption?

Lebanon has now a strategy for anti-corruption. This strategy has been completed and great efforts have been made to this end by Minister [for Environment and Administrative Development] Damianos Kattar. As for legislation, I think we have also improved, since we have voted at least two specific laws with regard [to corruption]. One was [adopted] in 2018 with regard to whistleblowing [Law 83] and the second was passed this year in [late April and published in the Official Gazette in] May, [Law 175/2020 on anti-corruption, which also established] the National Anti-Corruption Instituation. Before these two laws, we had the law [28/2017] on access to information already in place. As to the fourth law with relevance for the prosecution of corruption, which is the Law [154/2009, an update on the original Law 154/1999] on illicit enrichment: This law has been reviewed and is almost ready for issuance, in its new[est] version. We need a few weeks to get it done completely.

But the main problem is not about legislation nor about strategies.  We have an inflation in laws and strategies. Those laws have, of course, been elaborated on and improved. This is natural. This is normal. But the problem is that we don’t have a central decision by state actors—those who really run the country—to sacrifice their supporters. When it comes to fighting corruption you have to take severe and serious measures to, for example, get rid of certain employees and functionaries within the state and public administration. You also must take steps to enable the judiciary to arrest corrupted persons, and to enable the specific commissions for anti-corruption and anti-money-laundering and terrorist financing to investigate illicit funds and transfers that are made abroad. This kind of decision and this kind of sacrifice has not been initiated yet. We are now watching steps [taken] in terms of legislation improvement and of focus groups, as per the anti-corruption strategy—this is good work, but not in face of anti-corruption. Sacrificing and lifting protection on supporters and political clients is what matters now—and I am not talking about protection by law. The protection by law that enabled instances of corruption has been lifted at least partially, through the law on establishment of the anti-corruption commission that has been issued in May. But practically, the protection for political clients, for corrupted people, are still the same.

It seemed that implementation of the earlier laws that you mentioned, whistleblower protection and access to information, has not been very smooth or rapid. For media, activists, and civil society, getting access to information was a hit-and-miss game for quite some time, depending on which ministry or administrative unit you asked. From this experience, how long could it take to see the May 2020 law fully implemented and operational?

Theoretically you need three months from the publication of the law to establish the commission. There are six persons to be nominated and the nominations are now in process. There are different bodies who have to nominate their representatives. This process is ongoing and should be done within those three months. But I am afraid that even if you nominate such persons, if you do not have the political will and if you don’t have the people and the media pressing for this, you will not see the results that you are aiming for.

In terms of the capacity of the judiciary, the implementation of anti-corruption usually needs a lot of specialized judicial skills for supervising and dealing with forensic investigations to prove that someone has stolen public funds or taken bribes or illicitly enriched themselves while in public office. How ready is Lebanon in terms of the number of judges and the judiciary system and prosecution to deal with such cases?

There is the lack of the law to grant the judiciary its independence. This is not right. The judiciary in this situation should act by itself because the legislative power, the Parliament, which is comprised of mostly political figures, will never enable the judiciary to work. It will never grant the judiciary what it needs. It will never issue the perfect law. Thus the judiciary should act [by] itself, like it did in Italy through Mani Pulite (a judicial investigation of political corruption structures in Italy in the 1990s). Additionally, [the judiciary] have to generate their own good practices. For instance, similar to what the members of the high council for magistracy have done in terms of lifting banking secrecy, other judges should also do—this is one example. Another example is that members of the Higher [Judicial] Council (HJC) should sign a code of conduct and ethics. By adopting such a code they, for instance, have to undertake not to run for any other political, administrative, or even judicial position [while serving on the HJC]. This is needed because some of them used to take this [council function] as a vehicle to jump either over to membership of the Constitutional Council or to the Ministry of Justice, to become a minister of justice. I mean altogether that [the members of the judiciary] can take internal measures in order not to wait for the Parliament to grant them independence.

But do you agree that affirmation of judicial independence by a new law will be a major turning point for the ability to prosecute corruption cases in Lebanon?

Why? Why do you think so? I say that it is a good factor to have a good law but you don’t have to have a good law [on judiciary independence] to have a good judiciary. You can take other measures. I mentioned two of them but I [will] give you another example. We are now waiting for the circulations of judiciary figures. These are not nominations but rather circulations (the movement of judges between roles) within the judiciary.

Lebanon’s judiciary system is not reputed to be lightning fast. If we were to see a high-profile case about bribery or corruption, how long would such a case take to wind its way through the judicial system?

The judicial system is not fast anywhere, not just in Lebanon. But in Lebanon it is even less fast than in other places. This should of course be accelerated but the judiciary does not have to wait for any third party to grant it autonomy. This will not happen easily and the only solution is the judiciary—I don’t think the solution might be the army or any other means. The judiciary is the solution in this country. They have to act and not wait. They have enough texts of law, [and] they suffer enough, like other citizens. I think each and every judge should act. I believe that there are many good judges—only a few are bad judges.

One of the principles of having a good judiciary is that everybody has to have the right to a fair trial. Are there many good, specialized defense lawyers in this country who know how to deal with graft and bribery cases, auditing and institutional tax evasion cases, and very complex financial crimes?

Yes. There are many competent lawyers in this field. Also, if someone cannot afford [legal representation] then the bar will nominate the lawyer. Even the court can help with this process.

Do you feel confident that one year from now there will be in Lebanon a much better functioning judicial process for dealing with cases of corruption and illicit enrichment of public officials?

Yes.

 When it comes to the issues between banks and their depositors, and possible judicial confrontations, how is the situation there? Is the situation on the legal front going to improve or worsen?

We are now working on the capital control law and this law should soon be enacted. Having a capital control law is amongst the prerequisites for [a deal with] the International Monetary Fund. It will help in unifying the [exchange] rate of the dollars. It should be done soon. Meanwhile, there are lawsuits against the banks—because their practices are illegal. Transfers should be free, [in the sense that] they should be executed freely. So there are illegal banking practices in place. But these are for a good reason, because if [banks] transfer all the money [as they are requested by depositors], they will no longer have any funds and reserves at their correspondents. Also, the central bank is refraining from giving them any of their reserves—there is a retention against giving them such funds. I think that lawsuits which were submitted before the capital control law is issued, will be settled. Afterwards, there will be exemptions for those having necessities to transfer small amounts for education [and] health issues, for example.

 What, from your perspective as a legal expert, is the best thing that Lebanon can do in this situation?

There should be a political move to take serious measures—serious measures have not been taken yet. We have been playing for time. I don’t know why. And I do not believe that there is a good reason behind this. Even if this buying of time were for reason of a political gamble, this is not good for the country. What is happening is buying of time, plus working on new legislation and building some strategies. Drafting some plans. We have enough legislation and strategies. We need measures. We need what we call “quick wins.”

Thomas Schellen

Thomas Schellen is Executive's editor-at-large. He has been reporting on Middle Eastern business and economy for over 20 years. Send mail

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