Revising the Lebanese constitution - Between textual uncertainties and improper practices

Opinion analysis by Zeina Dagher, Featured Writer

August 17th, 2021

Following all the crises Lebanon has been going through, and passing by the devastating August 4th explosion of last year, the Lebanese political scene has been quite eventful. For a while now, the main focus has been on lifting the immunities off the officials implicated in the Beirut port explosion, as well as forming a new “crisis” government after the resignation of PM Saad el Hariri. But it’s clear to anyone that these things are taking an eternity to happen, and any step in the right direction is being countered by a million obstacles. So where does the problem reside? We already know that the Constitution is responsible of drawing, organizing, and modifying the political landscape of the country. Thus, is the problem in its text? It partly is, because the Lebanese constitution post-Taef is one of arrangement, where coherence was sometimes compromised in favor of satisfying this or that community’s demands. Or is the problem more in the practice that’s being made of it? It surely is too, because politicians have always used gaps, uncertainties and contradictions in the text to build their own unfaithful practices. In that case, what are some necessary constitutional amendments that will have to be made in order to counter the obstacles that arise? It’s clear that an answer to this question would need a full and very long study on the Constitution’s text and the desired political landscape of Lebanon, that is still very much unclear. However, we will try to show the most important amendments that need to be made in order to overpass the main political problems that we face today.

In September of 1989, the surviving members of the Lebanese parliament of 1972 met in Taef, Saudi Arabia, to negotiate a peace treaty that would end the civil war. The subsequent Taef agreement was used to modify a few points in the National Pact system – an unwritten agreement that talks about the mutual coexistence of Lebanon’s sects, the tripartite distribution of the 3 main seats between them, Lebanon’s unified Arab identity… It was also used to introduce a few major modifications to the constitution, bearing as well, for the very first time, a preamble that contains the most basic principles that Lebanon abides by.

However, it remains that many of these principles are being severely overlooked and countered by practice. One of those principles is the popular sovereignty, where the People is the source of all powers/branches of government, solemnly stated by the constitution. In reality, free, fair and regular elections, that should constitute the ultimate popular tool of accountability, have been regularly distorted to the advantage of the ruling oligarchic leaders that have succeeded in controlling the electoral results. Clientelism is also a blow to this principle: citizens who should be free and equal in the exercise of their political role, are captured by leaders and MP’s as clients, through sophisticated practices of corruption and confessionalism, such as in the apportionment and redistribution of public goods and services among political and confessional clients (e.g. public offices, land and contracts). This goes against the provisions of article 27 of the constitution, that says: “A member of the Chamber shall represent the whole nation” (and not his electors – or clients, only). The principle of popular sovereignty is crucial in a democracy, which is why it is important to mention in the constitution ways to ensure its applicability in practice.

Another principle that’s not being respected is the equality of the Lebanese people before the law, mentioned by article 7. The constitution provides for many forms and mechanisms for immunities that specifically favor civil servants and public officials. In reality, immunities have become the stronghold of political impunity, further reinforced by the abusive practice of confessionalism. The most striking example of institutional immunities, is the protection afforded to the President and ministers, who can only be tried before a special political jurisdiction, the High Council for the trial of presidents and ministers. By itself, this isn’t an immunity. But the procedural law applicable to this jurisdiction makes it almost impossible to operate. Thus, leaders seem to be excluded from the law’s umbrella, but the rest of Lebanese people aren’t entirely equal either: the absence of a civil personal status law, common to all Lebanese, subjugates each one to the law of their sect, and these widely differ one from another. Therefore, in order to restore the constitution’s coherence on that matter, the parliament would need to vote a civil personal status law, or mention the exception of the personal status in the article 7.

The principle of the separation of powers is also one of those being ignored. The constitution solemnly declares in its preamble that “the [political] system is based on the principle of separation of powers, their balance and cooperation”. This indeed constitutes the crucial foundation of an effective system of oversight and accountability. However, in reality, the practice developed a hegemony of sectarian leaders over the constitutional institutions (particularly through extra-institutional mechanisms such as the “Troika” and the “Dialogue Table”), and an imbalance between executive, parliamentary, and judicial powers.

Let’s start with the parliament. First, nothing in the constitution obstructs MP’s from being ministers at the same time, and knowing that it is being normally practiced is definitely a flagrant violation of the principle of the separation of powers, and needs to be explicitly abolished. Then, the mechanisms of oversight of the Parliament on the government are either ineffective or not being used. In fact, in any parliamentary system, it is fundamental that the parliament oversees the actions of the government, and keeps it in check. But in Lebanon, and although the constitution provides for questions (oral and written) and oversight sessions, they rarely ever happen, with an average of 21 meetings for questions in over 19 years. It also provides for parliamentary investigation committees, that only ever formed in 1971 and 1993.

But it’s not like the parliament would need to use any of these mechanisms: the whole system suffers of a gross imbalance in its favor, that shows in two articles of the constitution. First, article 53 obliges the President to have binding parliamentary consultations when naming the PM, which he isn’t obliged to do in other regular parliamentary systems. In Lebanon, this is a great obstacle to a proper functioning of institutions during crises: the parliamentary sects rarely ever agree on one name, and many considerations pass before the general good. That is why PM-naming takes so much time, and they end up designating (or recycling) someone well anchored in the denounced political class, just like we’re seeing with the designated PM Najib Mikati. Then, articles 65 and 77 allow the executive powers to dissolve the parliament… but the conditions to do so are nearly impossible to satisfy, which means that once the parliament is voted in, there is absolutely no way to get rid of it before the next elections.

Not only are the problems related to the link between parliament and government, but also in the parliament’s work itself. When projects or propositions of laws reach the parliament, the constitution provides that they are first seen by the President of the Chamber (currently the ever-lasting Nabih Berri), who then forwards it to the competent committee. However, the constitution doesn’t provide for a time limit for the President of the Chamber to do so, or even that he’s obliged to send it. Therefore, he can keep the file in the drawer for as long as he pleases… The committees’ work isn’t much better either: they do not hold public meetings and do not report back to Parliament. Generally speaking as well, there’s a lack of transparency of the parliamentary activities, since sessions are never held publicly or mediatized as stated by article 35, particularly the absent use of the electronic voting system. Votes are still done by raising hands and counting, which is extremely outdated and results in chaos and a big, dangerous error possibility, but MP’s refuse to change that because it would allegedly violate article 36.

The Constitution also provides that the Parliament is the only competent institution for the financial legislation of taxes and the budget. However, the practice has limited such power, if not made it totally ineffective. For more than 10 years, Parliament did not vote a budget; for more than 50 years, it did not vote a properly audited final state accounts (e.g. the State’s balance sheet) and since 2005 there were none produced. It also obviously rarely uses the financial oversight tools and institutions that the constitution presents it with.

The parliament isn’t the only institution suffering from constitutional gaps and bad practices: the same problems are shared by the executive branch. Before 1990, the executive powers were given to the President, with the help of his ministers. After 1990, they were transferred to the Council of Ministers.

But the President retains some important roles. Aside from his symbolic national role (articles 49 and 50) and in external affairs (52-53), he plays a major role towards the parliament and the government. First, towards the parliament, they can be found at articles 53+. But one particular task has been subject of debate because of a lack of clarity in the constitution text: article 56, that obliges the President to issue the laws which have been definitely adopted and demand their publication within a time limit, otherwise the decision or decree shall be considered automatically operative and must be published. Thus, it was practice that when the time limit expires, which happens quite often, the Council of Ministers would publish it without the President’s signature. However, many have considered that the article doesn’t allow that for the council, as this is a competence only given to the President… More clarity is consequently needed in this article. Towards the government, he also has many missions that can be found at these articles. But the most controversial one is naming the PM after consulting the MP’s. The article does not provide for any time limit for the naming, which is why it make take ages and still be constitutional. After naming the PM, he names the ministers after an agreement with the former. But an ugly practice has developed along the years, which causes much of the delay in naming the PM: falling under the pressure of the sects or to expand his own political powers, the President would compose the cabinet in the typical sectarian quota before assigning the PM. Finally, the President is politically irresponsible, but only for ordinary crime and in case he violates the constitution or in the case of high treason (article 60). The high treason isn’t defined by the constitution or laws and is left to the interpretation of the Parliament and the Supreme Council, which could be cause of impunity for the President.

Aside from that, the PM and the Council of ministers retain most of the executive powers ever since 1990, that can be found at articles 64+ and are clear for the most part (or have been cleared up by the Constitutional council). Some uncertainties however remain, like the definition of high treason that’s also a condition to trial the PM and ministers, or also the uncertainties around what a caretaker government can and can’t do…

The third branch of the State, or the judiciary, is also not functioning like it should. Without going into the obvious problems that it faces, starting with a lack of independence from the political scene, one particular institution is heavily disregarded, although extremely important in views of its role of protecting and interpreting the constitution: the Constitutional Council. There is a definite need to reform it, because, in addition to its many institutional shortcomings (including its inability to accept requests for constitutional interpretation, as originally provided by the Taef Accords), it is rarely used by the political system for the constitutional review of laws. Reforming this institution would also require constitutional reform, because it was created by it.

Finally, it appears that amendments to the Constitution are very much needed and should necessarily be considered in the political reform plan that will get the country out of its crises. The distorted constitutional practice and gaps of the text have weakened the proper functioning of the oversight and accountability mechanisms, to the extent that the political system has become similar to a “basket that doesn’t hold water”, a mere façade of laws and institutions, void of their much needed effectiveness. The mechanisms of amendment are present at articles 76 to 79 of the Constitution, stating everything very clearly. All that’s needed it a will to fight corruption and reform the system, because the revision suggestion has to come from the President or the Parliament, be agreed to by the Council of ministers, and finally be voted in the Parliament with the majority of 2/3, which isn’t an easy number to achieve. But the truth is, many of these efforts would probably not even require modifications of the constitution itself, but rather making laws and changing the legal misinterpretations and decades of improper practices through decisions of the Constitutional council… Once again, we see that nothing can quite replace a strong judiciary in a country of corrupt officials.

References:

Dr. Rizk Zgheib, Lectures on Lebanese Constitutional Law, Saint Joseph University of Beirut, 2019-2020.