Conference on the Prospects
of the Judicial System in Lebanon
September 25 - 26, 1998
Conference Sessions
The Conference was divided over five sessions with a total of 15 paper presentations. The speakers included nine high-ranking judges and six practicing attorneys and law professors (list of conference speakers). The Conference was inaugurated by Dr. Paul Salem, the LCPS President, and Mr. Olaf Kö ndgen, the Resident Representative for Jordan and Lebanon of the Konrad Adenauer Foundation. Dr. Salem underscored the importance of the judicial sector, especially during the current reconstruction period in Lebanon. He emphasized that the virtuosity of judicial sector is the basis and one of the main conditions for economic development and reconstruction. Accordingly, Dr. Salem added, the main priorities of the new Lebanese President should be the protection of the Constitution and the strengthening of Lebanese institutions. He accentuated the recent creation of the Constitutional Council as an important step forward, although it does not yet have the authority to examine the Constitutionality of laws.
In his opening remarks, Mr. Kö ndgen stressed the importance of the state of laws as a condition for an effective democracy. He also emphasized the importance of an independent judicial authority in the protection of civil liberties and the enforcement of established laws. Mr. Kö ndgen noted that any changes of civil liberties should be based on the Constitution.
Session One
Session Two
Session Three
Session Four
Session Five
The first session featured two presentations and was chaired by Dr. Paul Salem. The first paper, entitled: An Overview of the Judicial Sector in Law and in Practice, was presented by Mr. Sleiman Takieddine, a lawyer and a scholar in the field of law and the judicial sector. Mr. Takieddine described the main Constitutional, legal, and practical problems of the sector in Lebanon. He stated that in the past, judiciary reforms were the main concern. Today, however, the most important concern is the establishment of the judicial sector as an independent branch of the state and as defined by the Constitution. Mr. Takieddine also stated that there should be a separation of powers between the different branches of the state and in this case, the judicial branch should be the one possessing the main authority.
The second paper, entitled: The
Role of the Judicial Branch: Between the Legislative and the Executive
Branches, was presented by Attorney and Former Deputy, Dr. Issam Naaman.
In his presentation, Dr. Naaman revealed the legal shortcomings which allow
the intervention of the government executive branch in the judicial sector.
Dr. Naaman suggested numerous reformative measures, including the allocation
of the affairs of the different judicial bodies (juridical, administrative,
financial) to a high judicial authority. He emphasized that this high judicial
authority should be largely elected by judges.
The second session encompassed four presentations and was chaired by Mr. Monah Mitri, the Head of the Prosecution Department at the Court of Cassation in Mount Lebanon. The first paper on the Higher Judicial Council was presented by Mr. Tarek Ziadeh, the President of the Court of Cassation. In his presentation, Mr. Ziadeh noted the improvements made in the structural organization of the Lebanese judicial sector. He also confirmed that, based on past experiences, judicial immunities and guaranties can only be secured through a high judicial authority. This judicial authority would have the role of handling the judiciary’s affairs and insuring its independence. Accordingly, Mr. Ziadeh called for strengthening the role of the Higher Judicial Council. He recommended several to achieve this goal, including:
The second paper on the Appointment and Transfer of Judges was presented by former judge and President of the Court of Appeal, Dr. Moussa Kallas. Dr. Kallas noted that the approval of the Higher Judicial Council on the transfer of judges is insufficient to keep it immune to the influence of the Executive Branch. He explained that there are two reasons why the responsible officials are unable to follow a standard mechanism for the transfer of judges. The first explanation deals with the insistence of the Executive Branch to keep its privilege in managing the judicial institution, and thus, deciding where to allocate judges. The second explanation relates to the constant official consideration of sectarianism in allocating judges to the leading judicial positions. Finally, Dr. Kallas suggested that the Legislative Branch should be involved in choosing the members of the Higher Judicial Council, and that this Council alone should have the authority to transfer judges.
The third paper entitled: Public Prosecution, the Judicial Police, and the Code of the Penal Procedure, was presented by Mr. Joseph Ghamroun, the President of the Criminal Court in Mount Lebanon. Mr. Ghamroun stressed the need to introduce drastic reform measures in the judicial sector, including the Judicial Police Agency. He suggested that this Agency should be restricted in fixed departments for each Caza, and that it should be directly linked to the Public Prosecution Department. Two other suggested reforms included the specialization of the judicial sector, and the merging of the general prosecution judges with the judges of investigation. This merge, Mr. Ghamroun explained, would speed up the investigation process, and end the controversies about the legality of the preliminary investigations which take place in police stations, and in the absence of lawyers. He also suggested the abolition of the prosecuting authorities, as they have become a mean to delay lawsuits. Mr. Ghamroun criticized the legislative branch for defining specific sentences limiting the judges' authority to act freely in some cases such as capital punishment for committing murder.
The fourth paper on the Issue of Bankruptcy in Courts was presented by Dr. Marwan Karkaby. Dr. Karkaby is a member of the Higher Judicial Council, President of both the Court of Appeal in Beirut and the Special Court for Banks, as well as the Former President of the Court of Bankruptcy in Beirut. He discussed bankruptcy issues and congratulated relevant courts for confronting some fraudulent cases of bank bankruptcies during and after the war caused by deteriorating economic conditions. Dr. Karkaby explained that the laws need improvement through some pioneering jurisprudence similar to those implemented so far in the Court of Bankruptcy.
Chaired by Ms. Inaam Boustany, a judge in the Bureau of Accounts, the third session included two presentations. The first presentation entitled: The Constitutional Council was conferred by Professor Fayez El-Hajj Chahine who is an Associate Professor in Sorbone University of Paris, member of the Law Modernization Committee, and representative of the Lebanese Government in the Arab League. Professor Chahine talked about the two important stages in the Council’s work. The first stage involves the issuing of two decisions which aim to nullify two laws. The first law is related to the extension of the terms of the municipal councils and committees in charge of carrying out the tasks, and the second law is related to specifying the tenure of the mayors and the mayoral councils.
Professor Chahine concluded his presentation with several propositions, including, the introduction of a formal text forbiding the Constitutional Council from issuing legal opinion as it contradicts with its judicial role, and the permission to the publish violations. He also called for confining tCouncil’s mission to monitorinthe Constitutionality of laws without the right to issue appeals in parliamentary elections. Professor Chahine also suggested that the Council should have the right to monitor the laws to ensure their compliance with the Constitution’s introduction.
The second presentation on the Bureau of Accounts was presented by Mr. Hassan Noureddine, a judge in the Bureau of Accounts. Mr. Noureddine called for the nullification of the link between the Bureau of Accounts and the Prime Minister or any other authority. Instead, he suggested to have the link only between the Bureau and legislative branch. Mr. Noureddine also called for enhancing the consultative and monitoring roles of the Bureau, and for supplying it with experts in such fields as medicine, engineering, and education. Furthermore, he suggested the creation of a Court of Appeal within the Bureau of Accounts. This Court of Appeal would take over the function of attending to appeals against the Bureau’s first degree decisions, which was previously the responsibility of the State Consultative Council.
The second day of the conference featured two sessions. The first session included three presentations, and was chaired by Dr. Abed Al-Salam Sheaib, the President of the Human Rights Committee in the Lawyer's Syndicate. The first paper on Special Courts, was presented by Dr. Mohamad Moghrabi. Dr. Moghrabi classified these courts and shed light on their deficiencies. He stated that some of these courts, such as the Spiritual Courts, are not affiliated with the Lebanese State, do not comply with the Lebanese laws, and do not respect international laws. He criticized these courts for not adhering to the jurisdiction of the Lebanese government despite the fact that they exercise their power over Lebanese citizens and on Lebanese territories. He added that some courts, such as the Permanent Military Courts and the Appropriation Courts, do not comprise judges. Dr. Moghrabi concluded his presentation by calling for the unification of the Judicial System, and the abolishment of the Special Courts except those which deal with internal affairs of their affiliated institutions.
The second presentation entitled: Personal Status Courts in the Law, was presented by Dr. Hilmi El-Hajjar, Head of the Execution Department and a former judge. Dr. Hajjar maintained that these courts are detrimental to equality within the judicial system and could consequently lead to its impairment. He also criticized the courts that apply the system of "a single judge" or those that extend beyond two degrees for appeal. Dr. Hajjar underscored the problems resulting from the overlap of the specialization of different courts, and emphasized the exceptional status and functions of the Spiritual Courts, which enjoy exclusive rights to interpret texts related to its judgments. In his presentation, Dr. Hajjar also discussed the obstacles that impair the execution of sentences. Some obstacles come from Spiritual Courts based outside Lebanon such as the Rotta Court. Finally, Dr. Hajjar called for the unification of all the Personal Status Courts under one judiciary system vested with the prerogative of applying the rules of different sects in Lebanon.
The third paper presentation on Personal Status Courts in Application, was presented by Dr. Sami Mansour, President of the Tenth Chamber of the Court of Appeal in Beirut. The paper focused on the protection of the religious courts, and the attempts made to circumvent their sentences. These attempts include appeals to other foreign courts, or change of religion, the sect, the nationality, or the address. Dr. Mansour presented some decisions taken in cases of conversion from one religion to another and the way this conversion influenced other issues like the inheritance. Then, he criticized the fact that religious courts enjoy exclusive competence over matters related to personal status at the international level, whereby the decisions of any foreign civil courts are not considered as valid. This leads to absurd cases especially if the concerned Lebanese is a citizen of a foreign country. He therefore suggested to take into account the nationality to which the concerned person is closer to. His final recommendation was to re-organize the Personal Status Courts in accordance with the current structure of the society without necessarily abolishing them.
The fifth and last session included four presentations and was chaired by Dr. Robert Farhat, a judge in the Judicial Inspection Board. The first presentation on The Tribunal Court was presented by Mr. Chakib Kortbawi, the former Head of the Lawyers’ Syndicate. Mr. Kortbawi discussed potential abuse of power by the Council of Ministers in recommending and submitting lawsuits to the Tribunal Court . This gives the impression that the government uses the Tribunal Court for political purposes. Mr. Kortbawi noted that it is necessary to keep this court, but at the same time reduce the number of crime cases submitted to it. He also recommended that the Tribunal Court should become a two-degree court.
The second presentation on The Appropriation Courts was presented by Dr. Wael Tabbarah, Former President of many courts including the Court of Appropriation in Southern Mount Lebanon. Dr. Tabbarah explained that new laws have increased the prerogatives of these courts and allowed them, not only to assess the value of compensation, but also to deal with other essential issues. He explained that since these courts are composed of one judge and two other non-legal expert members, the judge solely assumes the burden of cases giving the impression that the decisions of these courts are handled by one person. He then criticized the government for appealing most of the decisions taken by the Appropriation Courts in order to delay payment of compensation. This situation places additional pressure on the judge and thus affects his/her performance during the trials. Finally, Dr. Tabbarah discussed the ambiguity of the law related to the issue of value assessment and the constant need to turn to jurisprudence. He defined the law as being ambiguous and barbaric, and stressed the need to amend it.
The third presentation entitled: Juvenile Courts and Social Penitentiaries was prepared by Mr. Ghassan Rabah, Public Prosecutor in South Lebanon and President of the Union for the Protection of Childhood in Lebanon. The paper was read by Mr. Ghassan Khalil, Secretary General of the High Council for Childhood. The paper mainly focused on the role of the Union for the Protection of Childhood in Lebanon, which is the institution responsible for rehabilitating delinquents and taking care of them.
The fourth presentation entitled: A Comparison of Draft Laws Proposed in the Parliament was presented by Mr. Marwan Sakr, lawyer and researcher in the fields of law, human and civil rights. Mr. Sakr examined and compared the several projects proposed to reform the judicial system. The comparison mainly included draft laws proposed by the Former Speaker of the Parliament, Mr. Hussein El-Husseini; Deputy Boutros Harb; Former Deputy Issam Naaman; and former Head of the Lawyers Syndicate, Mr. Marcel Sioufy.