Daily Star – Lebanon,
March 11 2006
Alternating the top political jobs around the three main confessions
every four years can reinforces the sense of national identity in the
Lebanese
Saturday, March 11, 2006
Since Syria’s “sanctities” collapsed along with its project in
Lebanon, is it time for Lebanese safeguards to establish true civil
peace that protects this country-message from booby-trapped, poisoned
and imported rhetoric?
By Lebanese safeguards I mean the constitutional guarantees that
preserve confessional diversity and balance between institutions
without failing to promote national identity in every Lebanese,
regardless of confession, tribe or place of birth.
It is true that the Taif Accord saw Lebanon’s Civil War end. However,
the inherent faults and constitutional defects that endangered the
institutions’ work were demonstrated on the one hand through
practice, and on the other by being partial, selective and
temperamental implementation in a manner that distorted its content
and shook its consensual foundations.
Consequently, if the Lebanese are serious about coexisting on the
basis of equality and regaining their sense of national belonging,
they have to prove that by forming a committee of high-ranking
lawmakers that would address the Taif’s defects without tampering
with its substance. This committee would also have to present these
amendments to the first House freely elected on the basis of a fair
and modern law.
One of the major issues that should be disregarded is the
reconsideration of the jurisdiction of the three powers – not to
limit it but rather to facilitate a stable and equal rule, allowing
confessions to alternate between these powers after the creation of
the Council of Ministers stipulated in Article 22 of the Lebanese
Constitution.
The presidency
Reducing the term of the president from six years (Article 49 of the
Constitution) to four nonrenewable and nonextendible years is
imperative to implementing the principle of alternation of the
presidency between the confessions. This ensures that no single
confession monopolizes a specific presidency for too long. The
four-year mandate has become sufficient to implement the program of a
specific presidency, giving the people the opportunity to decide
whether to maintain this program of not. By reducing the mandate to
four years, the parliamentary elections would coincide with the
presidential elections; they should be even held before the
presidential elections so the people can have the opportunity to
change the parliamentary majority should they wish to.
The legislative power
Parliament’s ordinary session:
Articles 31 and 32 of the Constitution set the legal dates to hold a
parliamentary session; other dates are considered void and in
violation of the law. The House’s two ordinary periods stretch from
the Tuesday following March 15 until the end of May and from the
Tuesday following October 15 until the end of the year, provided
texamining and voting on the take precedence over anythign else.
Consequently, the meeting of MPs to legislate and vote on a budget
does not exceed 180 days a year if no extraordinary sessions were
called for.
First, regarding the increasing need to legislate and emphasize the
quality of the laws, it is not acceptable to limit Parliament’s
legislative work only to the mid-year. There are draft laws and law
proposals lying in the drawers not for political reasons but for the
financial impossibility of examining and voting on them.
Second, limiting Parliament sessions to a relatively short period of
time, and giving the president, with the premier’s consent, the
authority to call for extraordinary House sessions by virtue of a
decree setting the opening and closing date as well as the agenda
(Article 33 of the Constitution), means limiting the jurisdiction of
the House to serve as an executive power and comes in violation of
paragraph (c) of the Constitution’s preamble which clearly stipulates
that “Lebanon is a parliamentary democratic republic.”
This is why we suggest the amendment of Article 32 of the
Constitution and the adoption of one ordinary session for the House,
stretching from mid-October until mid-June.
Such an amendment would contribute to making Parliament its own
master.
Executive power
Separating Parliament from the Cabinet:
The principle of separating the legislative power from the executive
power stipulated in the Constitution is not effectively implemented.
Article 28 of the Constitution, which authorizes grouping the
Parliament and Cabinet function, contradicts paragraph (e) of the
Constitution’s preamble which stipulates that the regime is based on
the principle of separation, balance and cooperation between the
powers.
So how can the House hold Cabinet to account if ministers are also
MPs? Could it be both the opponent and the arbiter?
Consequently, based on the principle of separation of powers which
guarantees government’s performance, we believe the Cabinet and the
House should be separated and therefore Article 28 of the Lebanese
Constitution should be amended, and a mechanism regulating the
vacancy of the positions of MPs who joined the Cabinet be included in
the electoral law.
About urgent bill:
Article 58 of the Constitution stipulates that: “Every bill the
Cabinet deems urgent and in which this urgency is indicated in the
decree of transmission to the Parliament may be issued by the
president within 40 days following its communication to the House,
after including it on the agenda of a general meeting, reading it
aloud before the House, and after the expiration of the time limit
without the House acting on it.”
Linking the 40-day deadline granted to the president to pass an
urgent bill by Cabinet to the proviso of including this bill in the
agenda of the general House meeting and reading it aloud before the
Assembly gives the House speaker the chance to maneuver and the
possibility to hamper the implementation of this article by not
raising the urgent bill in the agenda and consequently postponing the
40-day deadline.
Based on the principle of equal and separated powers, the House
speaker should not be given this authority to hamper the Cabinet’s
work. But, if we adopt the one-session principle for the House, which
stretches from mid-October to mid-June every year, then the general
meetings become weekly throughout the year and including an urgent
bill as soon as possible in the agenda becomes inevitable.
The governmental solidarity
The National Accord document entrusted the executive power with the
Cabinet (Article 65 of the Constitution) and Article 66 of the
Constitution made the ministers responsible in general of
Parliament’s general ministerial policy and made them responsible of
their personal actions.
The practice gave the ministers the freedom to revolt against the
ministerial decisions and the Cabinet’s general policy, which
destabilized the governmental solidarity and weakened the position of
the prime minister, who coordinates with the ministers and gives
general instructions to guarantee the well-functioning of public
institutions and administrations (Article 64 of the Constitution).
In order to avoid any embarrassment and to guarantee the governmental
solidarity, which incarnates a unified political will and a coherent
vision of the Cabinet’s direction, the opposition ministers should
voice their rejection from inside the Cabinet.
Any minister, who rejects the Cabinet’s general policy by publicly
criticizing its directions and objecting its practices, should resign
or should be forced to resign.
The Cabinet cannot stay in power if it is divided and cannot be an
arena for the loyalists and the opposition at the same time. It is
true that Lebanon is based on a consensual democracy but this does
not allow the executive power to turn into a forum for exchanging
accusations between its members, because such a thing would hamper
democracy.
Keeping the opposition ministers away from the government strengthens
executive power and enhances both the opposition and the loyalists.
Setting a deadline for the prime minister to issue decrees
Article 56 of the Constitution set a time limit for the president to
issue the laws and decrees to prevent him from stalling and hampering
the work of the constitutional institutions. Article 64 of the
Constitution did not set any deadline for the prime minister to issue
these decrees, which encouraged the adoption of the boycott and the
refusal to signing the decrees for political reasons concerning the
premier, effectively hampering the work of the government and
destabilizing the relations between the president and Parliament.
Consequently, in order to restore balance between the three top
politicians and guarantee the smooth running of the government,
Article 64 of the Constitution should be amended by adding deadlines
on the prime minister similar to the president’s deadlines to issue
decrees.
Prosecuting the ministers
The Lebanese Constitution neither includes a document that defines
“high treason,” the “violation of the Constitution,” or “failing to
assume the duties,” nor does it impose compliance with the Penal
Code; knowing that the Law of Procedures before the Higher Council To
Try (the Three Top Posts) and Ministers compelled this council to
abide by the principle of the legality of the crimes and the legality
of punishments stipulated by articles one and six of the Penal Code.
Consequently, in order to abide by Article 70 of the Constitution, it
is necessary to include in the Law of Procedures before the Higher
Council a text explaining the meaning of the minister’s failure to
assume his/her duties so that the minister does not remain above the
law.
The Constitutional Council
The Constitutional Council should be granted a mandate to review the
constitutionality of the laws, according to a request of one of the
legal parties before the State Council or the Cassation Court. This
mandate should be preceded by a two-year period, during which
Parliament accounts for the laws that might be unconstitutional. It
is obvious to include in the constitutional council the mandate to
review the constitutionality of the constitutional amendments and to
preserve the higher principles in the Constitution, which cannot be
altered even in a constitutional amendment, like coexistence or
consensual democracy, and these principles are called
“supra-constitutional” in the constitutional law.
An interpretation of the Constitution by Parliament cannot produce
mandatory results unless this interpretation takes place through a
legal text that respects the constitutional procedures stipulated by
articles 76 and 77 of the Constitution.
Consequently, it is necessary to reconsider allowing the
Constitutional Council to interpret the Constitution, since this
mission does not conflict with the concept of sovereignty, especially
as the theory of monitoring the constitutionality of laws is now
adopted in most countries of the world.
The independence of the judiciary
The Constitution provides only Article 20, which organizes the
executive power and stipulates that: “The executive power is handled
by all the courts, regardless of their competence and levels, within
a system that is stipulated by the law and provides the legal parties
with the necessary guarantees. The conditions of the judicial
guarantee and its limits are set by the law. The judges are
independent in performing their job while the decrees and decisions
are issued by all the courts and implemented in the name of the
Lebanese people.”
While the Constitution stresses the independence of the judges, it
does not mention any mechanism that guarantees this independence.
The National Accord document noted this gap and tried to fill the
void in paragraph (b) pertaining to the courts, and said: “In order
to enhance the independence of the judiciary: the judicial body
elects a certain number of the members of the Higher Judicial
Council.”
However, the paragraph has not been put into effect yet. Criticism
cannot stop as long as the judicial power remains dependent on the
executive power.
Consequently, we call for the implementation of the part of the Taif
Accord pertaining to the independence of the judiciary and we also
propose that the Higher Judicial Council be granted the mandate to
make the judicial appointments without referring to the executive
power, which would give the public prosecutors and the judicial body
total independence, absolving them of all suspicions. We also call
for promoting the judges’ social situation, which would encourage
skilled individuals to join the judicial body and empower them
against bribery.
The Senate
Article 22 of the Lebanese Constitution says: “With the election of
the first Parliament on a national basis and not on a confessional
basis, a new Caabinet should be created, in which all the spiritual
families are represented and whose mandate is limited to critical
issues.”
Consequently, this article linked the creation of a Senate to the
election of the first Parliament on a national, nonconfessional
basis. This link is illogical, because the creation of a Parliament
on national basis could take dozens of years and is related to the
prior presence of the Senate, which represents the guarantee of
moving from a confessional Parliament to a national one.
The creation of a Senate would also resolve the issue of the
representation of the Druze, Catholic and Orthodox confessions in the
Lebanese pyramid, which will be formed of four powers: the president,
the premier, the speaker and the Senate president.
The jurisdictions of the Senate are summarized as follows:
l The authority to veto every law that contradicts the principle of
consensual democracy or co-existence and rights of the confessions.
l Proposing laws, especially those related to the confessional
structure in Lebanon.
l A second reading of the laws whereby the Senate has the right to
return to Parliament provided that a two-thirds majority of its
members (16 members as we will see later) vote for it. In this case,
the House should adopt the law by its majority. If the president of
the Republic requests to reconsider this law in accordance with
Article 57 of the Constitution, then the House should adopt with its
two-thirds majority (after amending Article 57 of the Constitution).
The Senate is composed of 22 members after the number of MPs in the
House is reduced from 128 to 108 as was mentioned in paragraph six of
the item on political reforms in the National Accord document.
The Senate members are distributed as follows:
Three Sunni representatives, three Shiite representatives, three
Druze representatives and one Alawite representative (10 Muslims).
Three Maronite representatives, two Catholic representatives, and two
Greek Orthodox representatives, one Armenian Catholic representative,
One Armenian Orthodox representative, and one representative for the
Christian minorities (10 Christians). One representative for the Jews
and one representative for the nonconfessional (22 altogether). Each
sect elects Senate members who represent them and each voter has one
vote (one man, one vote). Lebanon follows one electoral district and
those who secure the largest number of votes possible from the voters
within their sect for the seats allocated to this sect are considered
successful.
Alternations in presidency and in positions among confessions
What has offended the Lebanese structure the most was the domination
of one confession of a certain post for a permanent period. This made
other confessions feel they were treated unfairly even though they
were competent enough to assume a certain position. But their
confessional belonging hindered their chances of assuming a position.
This is one of the reasons that weakened national identity and pushed
the Lebanese people to take refuge behind their confessional
identities. It is difficult to change this reality especially after
the country witnessed 15 years of war in the name of the weak and 15
years of struggle in the name of the marginalized people. The answer
to to resolving this confessional reality lies in giving it
guarantees so that it doesn’t turn to foreign countries, requesting
protection from abroad, or to bloody internal fighting or division.
Confessions in Lebanon are a fact that we have to acknowledge if we
are to find a solution to the problems that the country has been
suffering from ever since these confessions existed. Therefore,
terminating political sectarianism in Lebanon can’t be acommplished
following the French approach that has begun to suffer from its
shortcomings and restrictions.
Terminating political sectarianism in Lebanon definitely passes
through alternations in presidencies and posts between the major
confessions (Maronites, Shiites and Sunnis) and the others (Druze,
Catholics and Orthodox) to pave the way for other confessions to be
active and play their roles in order to achieve actual equality
between the Lebanese people and to reinforce their national identity
in lieu of pure confessional belonging.
These alternations should be made every four years (duration of the
mandate of the president and House speaker) according to the way
defined in the attached table (the table is an example, which is why
it does not tackle all posts in all ministries and administrations).
The philosophy of alternations, which should coincide with adopting
the broad-based administrative decentralization stipulated in the
Taif Accord, is to pave the way for all confessions to actually
participate in the essence of governance without any one sect being
dominated by another or making the other confessions feel they are
marginalized. In this way, national identity is strengthened through
the confessional guarantees whereby each party feels that banking on
foreign countries will not be more profitable than banking on
Lebanon. During each governance session, alternation and change in
posts, confessions get used to dealing with each other on the basis
of equality and complementarity and it becomes a motivation for peace
without risk. From here, each confession should feel it is
represented by a person who holds a leadership position in the four
authorities and there is no default in that. As much as alternation
secures national balance and equality among the Lebanese on “the
Lebanese way” (that is much better than what is used today), the
election of each confession for its representative in the post of the
presidency of the Republic or the ministry or public prosecution or
Senate secures political stability that Lebanon has lacked since its
independence.
There is no shame in having each confession elect its “leader” at a
certain stage as long as it has the option after four years of
re-electing this leader, but allow the succeeding presidency to have
a different position and competence but which still cooperates and
interacts with the other presidencies.
This system limits these confessions from turning to other countries.
At the same time it limits the instinct that leans toward division
because, by maintaining the unity of the country, each confession is
given its right in the authority, and the right to participate and
express its specificities within the general structure. This doesn’t
stop the candidates of a certain confession wishing to assume one of
these presidential posts from cooperating with other candidates of
other confessions. Each one strives to win the confidence of his
voters on the basis of a unified governance program where it is up to
the people to decide an integrated ruling team on the basis of
political and economic choices and not on the basis of instincts.
Confessional strife under such a system can’t be justified especially
after adopting a modern and fair law for parliamentary elections on
the basis of proportionality and large historic muhafazat that
safeguards the rights of “nonconfessional individuals.”
With reference to the table on the alternation of posts between the
confessions every four years, the establishment of a Senate gives a
fourth confession the opportunity to assume a post in the authority.
This post was allocated to the Druze, but it is possible that even on
this level, there would be an alternation every four years between
the Druze, the Orthodox, the Catholics whereby each confession takes
part in determining Lebanon’s fate on all levels.
In a quick reading of the typical table of the alternation of posts
between the confessions, we can see for example when the president of
the Republic belongs to a certain confession, Maronite or Sunni, the
same confession is given the finance portfolio since it is the main
ministry. That is done in order to compensate the modest powers of
the president of the Republic compared with the other presidencies.
Furthermore, the posts of defense minister and director general of
the Surete Generale are given to a person from his confession
(Maronite, Sunni or Shiite) or from another confession (Druze,
Catholic or Orthodox) if the president was a Druze, Orthodox or
Catholic.
When the prime minister is a Druze or Shiite for example, his
confession can’t be given a major portfolio except for the Justice
Ministry to maintain the balance with the other confessions due to
the broad jurisdiction the premier enjoys although the Cabinet rules
like an assembled commission. In this context, the post of public
works and transport minister (the largest service provider ministry)
can’t be given to someone who is from a different confession than the
premier. The same is applicable to the post of the president of the
Council of Development and Reconstruction. As for the post of the
Internal Security Forces Commander, it is given to a person who is
from the same confession as the premier is so that this confession
secures an advanced position among leaders of security apparatuses.
For example, when the Speaker of the House is a Sunni or Catholic,
the foreign minister, education minister, army commander, president
of the Council of Development and Reconstruction are from his
confession. In this way, this confession secures a position for
foreign affairs, and other social, security and developmental
positions.
The Senate, with the jurisdiction it has to legislate regarding
issues such as co-existence, consensual democracy, and rights of
confessions, is like a guarantee for a confession whose leader
presides the Interior Ministry, the Lebanese University, and the
Constitutional Council. These jurisdictions safeguard for this
confession the Public Works and Transport portfolio as a development
guarantee.
If we apply the principle of alternation, with its defaults, in the
presidential posts between the confessions, we would allow the major
confessions (Maronites, Shiites, and Sunnis) to alternate the four
presidencies between them in a complete cycle every 16 years with a
different presidency for each of them every four years. This would
also allow the confessions (Druze, Catholics, and Orthodox) to take
their turns in assuming these presidencies even for a longer period
(once every eight years, meaning that every confession needs 32 years
to alternate one complete session).
Isn’t this equation, with its defaults, much fairer than the equation
that is currently adopted, wherey the Maronite confession dominates
the post of the president of the Republic, and the Shiite sect
dominates the post of the speaker of the House and the Sunni sect
dominates the post of the prime minister and then they all quarrel
over the jurisdictions and denying the other confessions their rights
in shaping the history and future of Lebanon until they give up in
frustration?
It is true that this system is not being fair to all the confessions
in Lebanon starting with the Armenians and the Christian minorities
to the Alawites. But it is a bold step on the way to eradicate
political sectarianism stipulated in Article 95 of the Constitution.
When the largest number possible of confessions take part in running
this country, then their sense of national identity is reinforced,
mutual distrust disappears and fears and concerns vanish.
Our apologies to all those who still dream of a day where all
confessional identities disappear in favor of national identity and
then naively try to impose patriotism.
I can’t imagine the orient without religions or a society without
minorities. Lebanon lies in the heart of this eastern part of the
world and the Lebanese community is composed of large minorities of a
confessional nature. So why do we lie to each other? And why do we
ignore each other or challenge each other? No one can eliminate the
other or even live without the other. Our fates are linked to the
fate of the community as a whole. That’s why we have to always
picture modern systems that sponsor co-existence in a fair and modern
manner. These systems should be tailored to Lebanon’s needs, they
should be neither copied from foreign systems nor imposed on us. This
alternation in the presidencies between the confessions is an attempt
to picture solutions to some of the challenges that are somehow
difficult our societies are facing. This solution does not claim to
be comprehensive and does not claim to be the perfect solution that I
look forward to. It is a real attempt that stands in the face of the
cycle of irrationality that is paralyzing our initiatives. Whoever
believes that the “truth” in Lebanon is only to safeguard this
constitutional equation (the charter and Taif Accord) is like a
tourist riding in a taxi that has run out of gas and believes that he
reached his destination!
So, to all those who are convening in the name of the dialogue and
are aiming to reach a settlement for the country, I urge you to not
let this stage of our long national journey pass us by. Gather all
your ideas and initiatives before the country burns down!
Rabieh al-Shaer
Adviser in Public Policies