Overview of the Rule of Law in Lebanon

Original contribution by Vida Hamd, Doctoral Candidate, and Research Officer at the Common Space Initiative: Support Office for Dialogue, Civil Peace, and Constitutional Strengthening

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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 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.

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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):

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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.

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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).

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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).

V. Conclusion

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.

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