Overview of the Rule of Law in Lebanon
I. The Rule of Law in the Lebanese Constitution
When the Lebanese Constitution was promulgated on 23 May 1926, it was still under the French mandate that had been erected after the defeat of the Ottoman Empire in World War I. The constitution was designed after the French constitution of the Third Republic. Institutionally, it provided for a parliament, a Cabinet and President, while retaining the supreme power of the French High Commissioner. With respect to rights it stated the equality of the Lebanese people before the law, protected religious freedoms (Lebanese Constitution, articles 7 and 9), and stated the principle of equal confessional representation in public jobs. It also commissioned the Cabinet as a temporary mechanism for the coexistence and fairness between Muslims and Christians (Lebanese Constitution, article 95 (old version, before amendments of 1943 and 1990), thus embedding the first seeds of confessionalism.
Since then, Lebanon’s political history has reflected in a number of Constitutional amendments (Majzoub 2002: 227-244). In 1943, with the fourth Constitutional amendment the independence of Lebanon was declared, and in 1943 and 1947 two further amendments aimed at the liberation from the French mandate. In 1989, the National Reconciliation Accord − also known as the 1989 Taef Agreement − marked the end of the Lebanese civil war. Following from here, in 1990, several constitutional amendments were passed that provided a legal framework for power sharing and governance that shifted executive powers from the President to the Council of Ministers (Lebanese Constitution, article 17), and redistributed Parliamentary representation equally between Christians and Muslims and proportionally among the sects that constitute each religion (Lebanese Constitution, article 24). [Personal Status matters are regulated by the French High Commissioner’s decision no 60 dated 13 March 1936 and amended once on 21 December 1962 and again by law no 553 dated 24 July 1996. According to the latter, there are eleven Christian sects, five Muslim and three Jewish.]
Once again confessionalism was envisaged as a temporary mechanism to ensure equal representation of religious communities in the judiciary, security and military institutions and in the public jobs. The first elected parliament after Taef was supposed to “take appropriate measures” for the abolishment of political confessionalism according to a transitional plan (Lebanese Constitution, article 95.). A national committee formed of the Prime Minister, Parliament Speaker, political, intellectual and social figures, and headed by the President would then be mandated to propose the necessary means for de-confessionalisation and to supervise the implementation of the transitional plan. However, the transitional plan and the national committee never materialized neither did the creation of a Senate that was planned to shift the institutional representation of religious communities from the Parliament to the Senate (Lebanese Constitution, article 22).
With respect to the rule of law, the constitutional amendments following Taef are particularly relevant, because they included the Preamble that in its para 1 for the first time explicitly mentioned the “sovereignty of law” as a guarantee to the peoples’ right to live in any part of Lebanon:
“Lebanese territory is one for all Lebanese. Every Lebanese has the right to live in any part of it and to enjoy the sovereignty of law wherever he resides. There is no segregation of the people on the basis of any type of belonging and no fragmentation, partition or colonization.”
The Preamble also affirmed Lebanon’s commitment to the Universal Declaration of Human Rights, thus indirectly concurring with the preamble of the Universal Declaration that stipulates that “human rights should be protected by the rule of law.”
Another amendment of 1990 pertaining to the rule of law included the creation of a Constitutional Council that ensures the supremacy of the constitution and reviews the constitutionality of laws. Subsequently, the constitutional Court was established in 1993 [Law no 250 dated 14 July 1993, amended by law no 305 dated 31 March 1994, law no 516 dated 6 June 1996, law no 30 October 1999 and law no 9 June 2006], its judges were first appointed in 1994, and its internal regulations were passed in 1996 [Law no 6 June 1996 later annulled by law no 243 dated 7 August 2000].
In 2008, the Doha Agreement was signed, a significant milestone for the rule of law in Lebanon, even though the Agreement was not translated into any constitutional amendments. Among other issues, the Doha agreement aimed at overcoming a political impasse that started between the Council of Ministers and the opposition, and lead to the withdrawal of Shiite representatives from the government, the suspension of Parliament activities, and a delay in the Presidential elections. The Doha agreement reiterated the necessity to respect the “état de droit”, dawlat alqanun (Doha Agreement, para. 4, 4), which as legal principal is tantamount to the rule of law (Ghanem 2006: 13, 28-30). At the same time it demonstrated effective governance in Lebanon, no matter if it is democratic or not, cannot rely solely on constitutional rules, but rather on consensus among religious communities (Saliba 2010: 9).
II. Separation, balance and cooperation of powers
Having established a constitutional and political system that combines republican, representative, parliamentary, democratic liberal and confessional characteristics (Majzoub 2002: 250-256), the Lebanese constitution incorporates a flexible understanding of the principle of separation of powers whereby separate powers cooperate within a system of checks and balances (Preamble, para. e):
“The political system is established on the principle of separation, balance and cooperation amongst the various branches of government.”
This flexible interpretation of the separation of powers allows the legislative power to intervene in certain activities of the executive power such as approving the annual budget of the State (Lebanese Constitution, article 32) and ratifying specific types of treaties (Lebanese Constitution, article 52). It also allows the executive power to be involved in legislative activities including summoning the parliament to convene (Lebanese Constitution, article 33), proposing new legislation and promulgating laws as commissioned by parliament (Lebanese Constitution, articles 18, 51). Nonetheless, an accountability system remains in place with the Parliament possessing a vote for confidence power over the Council of Ministers (Lebanese Constitution, article 37 and 69 (f)) and the executive power possessing the authority to dissolve the Parliament on certain conditions (Lebanese Constitution, article 55). In addition, the Parliament holds the power to impeach the President for violation of the constitution or high treason charges, and the Prime Minister and Ministers for high treason or serious neglect of their duties (Lebanese Constitution, articles 60 (2) and 70 respectively). Judicial impeachment procedures are carried out by the Supreme Council (Lebanese Constitution, article 71). In reality, not one case has been brought to the Supreme Council. This, however, is not to be confused as an absence of any excesses, but rather as a strong indicator as to the system of checks and balances in praxi.
Nevertheless, complicit and often suspicious exchange of personal benefits between the government and the parliament distorted the constitutional principle of cooperation between the two powers, and conflict over personal and sectarian interests blurred the separating lines among them (Serhal 2010: 20-21). Partisanship and sectarianism continue to cause rifts that are exacerbated by regional and international tension.
The judiciary forms the third pillar of power and is mentioned in this unique article in the Constitution under the “general provisions” chapter unlike the other two powers that are referred to under to separate chapters, each containing numerous provisions. Article 20 of the Lebanese Constitution says:
“Judicial power is to be exercised by the tribunals of various levels and jurisdictions. It functions within the limits of an order established by the law and offering the necessary guarantees to judges and litigants. The limits and conditions for the protection of the judges are determined by law. The judges are independent in the exercise of their duties. The decisions and judgments of all courts are rendered and executed in the name of the Lebanese People.”
The independence of the judiciary is thus limited to its duties, namely to the interpretation and application of the law, and the adjudication of disputes. Rules that regulate the administration of the judiciary are enacted by the legislature and not by the judiciary itself. Determination of rules concerning judiciary affairs by the legislature is not in itself a violation of the independence of the judiciary, however, these rules grant the Supreme Judiciary Council the authority to manage judiciary affairs [Legislative decree no 150 (Law of the Judicial System) dated 16 September 1983, article 4 amended by article 3 of legislative decree no 22 dated 23 March 1985] while at the same time retaining considerable management by the executive power through the Ministry of Justice mainly. Most prominent among the executive prerogatives is that the independence of the judiciary includes for example the designation of some members of the Supreme Judiciary Council itself [Article 2 amended by article 2 of legislative decree no 22 dated 23 March 1985 and also by article 1 of law no 389 dated 21 December 2001], and the appointment, transfer, and promotion of judges [Article 5 (para A) amended by article 4 of legislative decree no 22 dated 23 March 1985, and article 5 (para B) amended by article 2 of law no 389 dated 21 December 2001]. Such prerogatives strip the judiciary of the constituents of an independent power and permit substantial interferences by the executive in judiciary affairs. On the other hand, the intervention of the legislative power comes in a different form, above all through designing laws that disrupt the effect of specific judicial rulings and issuing laws with retroactive effects that violate human rights (Takieddine 2000: 126-127).
In addition to the checks and balances of power, Lebanon’s constitution incorporates other fundamental pillars of the Rule of Law namely fundamental rights provisions, and judicial review by a Constitutional Council as shall be discussed below.
III. Judicial Review
Legal institutions and structure of the judiciary in Lebanon are largely inspired by the French model of civil and administrative courts. Religious courts, however, are an Ottoman inheritance that was subject to minor developments. Prior to the Taef Accord, the protection of citizens’ rights against the executive power was vested in the State Council. Citizens had no recourse to justice against violations by the Parliament. Article 19 of the Lebanese Constitution provided for the establishment of a constitutional court. The jurisdiction of the court was nevertheless restricted to supervising the constitutionality of laws and arbitrating conflicts arising from parliamentary and presidential elections. Petitions requesting the invalidation of a law may be filed by the president, or the prime minister, or the speaker, or at least ten parliament deputies, or the heads of religious communities [According to article 19 of the Constitution, heads of religious communities may consult the Constitutional Council only on laws relating to personal status, freedom of belief and religious practice and religious education.], but not by individuals. Ironically, the parties that draft, vote and endorse the laws may challenge the constitutionality of these laws, whereas individuals whose rights and liberties may be breached by these laws do not have direct access to the constitutional court. Petitions are accepted only if presented within fifteen days from publication in the Official Gazette.
Even though the Taef Accord included the task of interpreting the constitution in the Constitutional Council’s jurisdiction, the 1990 constitutional amendments that were based on the Taef Accord dropped this significant task from the activities of the Constitutional Council. This has left conflicting constitutional interpretations to political settlement through Parliamentarians representing political parties, or through other mechanisms such as negotiation, rather than final settlements by a judiciary body. In 2007 for example, a constitutional controversy concerning the quorum needed to elect the President divided the ruling coalition and the opposition in Lebanon at that time between two opinions. The first opinion relied on articles 34 and 79 of the constitution to argue that the quorum needed is a simple majority (half plus one), whereas the second opinion relied on article 49 of the constitution to support a two-third majority quorum. The issue of the presidential elections was resolved politically during the 2008 negotiations in Doha (Saliba 2007).
Many decisions of the Constitutional Council upheld various general constitutional principles that guarantee public and individual rights and consequently the rule of law, including, for example, the principle of sovereignty of the people, principle of periodic suffrage, right to equality before the law, respect of the right of the defence, principle of the continuity of the public service, and rights of government employees (Manssouri 2007: 49).
Most noteworthy is the Constitutional Council’s decision that declared the unconstitutionality of a law that concerns the Constitutional Council itself. Regularly, the Constitutional Council is composed of 10 members, half of which are appointed by the Parliament and the other half by the Council of Ministers. The law (no. 679) was issued by the Lebanese Parliament on 19 July 2005 as a result of the Government’s failure to designate two remaining replacements for Constitutional Council members whose term had expired. The legislature decided that members whose term had expired should not continue in office indefinitely and as such suspended all revisions by the Constitutional Council until the appointment of two new members by the Council of Ministers [Mandating reasons for law no 679 dated 19 July 2005]. Besides other legal basis for invalidating the law, the Constitutional Council found that the law breached the principle of separation of power that distinguishes the Constitutional Council as an authority that is independent even from the judiciary power itself (Constitutional Council Judgment no 1/2005, dated 6 August 2006.). Nonetheless, the Constitutional Council decided to discontinue its functions as to compel the government to carry out the full formation of the Council bringing as such judicial review to a halt until the appointment of Council members three years later in 2008.
IV. Equal enforcement and protection of human rights
In addition to the Preamble of the Lebanese Constitution that incorporates the Universal Declaration of Human Rights, Chapter II of the Constitution entitled “Rights and Duties of Citizens” encompasses a range of rights such as equality before the law, civil and political rights, personal liberty, freedom of belief, freedom of expression, freedom of assembly, right to education, rights of ownership (Lebanese Constitution, articles 6-15.). On the other hand, the Constitution itself and some Lebanese laws violate equality rights and discriminate against the Lebanese themselves. For example, grade one posts in public service jobs are distributed evenly between Christians and Muslims (Lebanese Constitution, article 95, 3 b) arguably in violation of equality and non-discrimination guaranteed in preamble paragraph C, and articles 7 and 12 of the Lebanese Constitution. Differentiated personal status laws and adjudication of divorce, custody, inheritance and other marital issues by religious courts delivers discriminate rather than universal rights. Labour laws exclude agriculture and domestic workers, and prejudiced provisions against women remain in penal and nationality laws. For example, women may not pass the Lebanese nationality to their children, definition and punishment of adultery in the penal code varies according to whether the perpetrator is the man or the woman (Freedom House 2011). Migrant workers (United States Department of State 2012), refugees and asylum seekers remain unprotected and subject to violence and discrimination (Amnesty International 2012).
Human rights activists and NGOs have been actively lobbying for legislative reforms, some of which have won approval in parliament. In August 2010 for example, a bill was passed allowing Palestinian refugees access to some social security benefits, and in August 2011, the parliament annulled article 562 of the penal code concerning mitigating punishments for honor crimes. A draft law concerning violence against women is currently being debated in parliament (IRIN 2012). Apart from legislative improvement in parliament, the judiciary also plays an important role in safeguarding human rights and ensuring that universal legal principles are reflected if not in the laws then at least in judiciary decisions (Messara / Morkos 2006) that interpret the laws and expound vague texts based on universal principles, or underpinning reasons, or compliance with constitutional law and international conventions.
In spite efforts to accelerate case adjudication in some courts, the accumulation of cases created a backlog that delayed the delivery of justice and extended pretrial detentions. This, in addition to bad prison conditions, instigated violent conflict in prisons (Human Rights Watch 2011) and protests by families of the detainees (Amrieh 2012).
Special Courts, mainly the Justice Council and military courts enjoy an expansive mandate despite their exceptional nature. Military courts are criticized for their violation of fair trial principles and defence rights and manipulation by the political authorities (Takieddine 2004:.33-34). Parliament is currently discussing amendments to the Military Judiciary Law to address these aberrations ( “Parliamentary Commission for the Modernization of Laws Proposes Amendments to Law concerning Military Judiciary”, Lebanese Parliament 2012).
The establishment of the Special Tribunal for Lebanon (STL) in 2007 to prosecute perpetrators of the assassination of former Prime Minister Harriri and connected crimes remains subject to intense controversy with the President of the STL claiming that the Tribunal contributes to the rule of law in Lebanon by applying the national laws to bring perpetrators to justice ( “Baragwanath: STL Can Address False Witnesses File after Lebanese Govt, U.N. Agree to it”, Naharnet Newsdesk 2012). Other political and legal opinions maintain that the Tribunal is unconstitutional and that it violates national criminal laws and procedures (Jamoul 2011).
Despite the emphasis on the rule of law in the President’s oath of office and in other official and non official political discourse, sectarian considerations still surmount, in practice and in legal statutes, the prevalence of law. Legitimacy is derived from the extent to which it reinforces coexistence among religious communities, much the less from compliance with law and human rights. Delays in promulgating laws that respond to the needs of beneficiaries contribute to the failure of effectively connecting people to the government. In addition to that, weak incorporation and application of human rights principles hamper the formation of an egalitarian society. Therefore, if the law itself in Lebanon is cruel, in a sense that it allows for the exploitation of vulnerable social groups and the abuse of power by the powerful, should this law still be sovereign? If so, rule of law would establish an “orderly” society, or a law abiding society, but it will not achieve justice. What is just for one group will remain unjust to another. As long as discrepancies and prejudices persist in the law itself, the rule of law stands on a deformed base. However, when the laws are derived from individual rights and freedom, then, the concept of a “just” society as opposed to an “orderly” society could prevail. On the other hand, irrespective of whether the law is fair or not, the problem is that it is either not enforced at all or not enforced on everyone equally. So, even the prospects of establishing an “orderly” society in Lebanon is obstructed by the lack of efficient and consistent enforcement of the law. This risks undermining the aim of the rule of law, particularly reducing the aim of delivering justice to delivering revenge, be it legal revenge or illegal revenge.