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

...

...

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.

...

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.”

...

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.

...

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).

...

...