On January 12, 2016, Lebanon’s State Council issued a decision[1] dismissing the two petitions submitted regarding the national budget matter [the absence of a national budget for a decade]. A number of politicians[2] had initiated the aforementioned case to revoke the decision taken by the Council of Ministers on July 24, 2014 on securing the required funds for salaries, wages and their annexes from the public budget reserves. The revocation was demanded because these reserves were based on the 2005 budget. The petitioners argued that the application of a decade-old budget based on the 12-month rule is illegal, and that the public authorities are committing grave breaches by failing to fulfill their constitutional duty to approve the annual public budgets since nearly ten years. Accordingly, the State Council rejected the request to form a judicial body to oversee the management of public funds, taxation and borrowing, “so as to ensure the vital functions of the state exclusively”. It also rejected the request to impose some sort of receivership over the state. The two petitions were dismissed for lack of capacity and interest; i.e., in form and without affecting the merits of the case which involves grave violations.

The decision was issued in contrast with the report of the assistant government commissioner, which called for expansion in determining public interest, as shown below.

This decision raises several observations, most notably the following:

The Concept of “Direct Interest” as a Tool to Fortify Administrative Decisions

In this area, the petitioners stated a direct interest in their capacity as current or former MPs or ministers meriting monthly salaries and compensations from the state treasury. Thus, they have interest in submitting a petition aimed at protecting the public fund and ensuring legal collecting and spending thereof. The petitioners (all of whom are public figures) did not stop at this point, but submitted tens of pages detailing the extent of the state’s violation and failure to fulfill its constitutional duty in ratifying annual public budgets since nearly a decade. This violation has made all borrowing, spending, and collecting of funds since February 1, 2006 (the date the 12-month rule was no longer applied on the basis of the 2005 budget) illegal and unconstitutional. This was reflected in their statements maintaining that the purpose of their petition is to re-establish public order; for without a budget, there is no state. Finally, the petitioners elaborated on the status of public institutions. They held the State Council accountable to a great extent on the grounds that it is the only legitimate authority and the only recourse to recover the state.

The State Council’s decision was the exact antithesis of all that has been mentioned. Instead of facilitating the conditions of capacity and direct interest referred to in Article 106 of the State Council Regulation -in light of the great significance of public interest as called for by the government commissioner- the State Council exploited such interest to write off a direct individual interest. Not only this, but the State Council referred to a final French decision issued in 1930 in the event of a conflict with the French jurisprudence currently in force, and even with the State Council’s own jurisprudence in any way. Worse still, the 2016 decision defined the condition of interest in that the contested decision should affect the legal status of the petitioner only, “without prejudice to the status of all other persons; that the damage caused to the individual petitioner shall differ from the public damage caused to all citizens”. In this regard, it seems as if the State Council has introduced an additional condition, considering the interest is present; namely that the interest should be “exclusive” to the petitioner, otherwise, the lawsuit shall be deemed of public interest. Such consideration is without any legal or juridical justification and practically leads to the exclusion of a large number of public interests from the circle of protected interests, given that the interest must be individual and exclusive. As such, the State Council is closing doors where they should be wide open, as if no one has a “individual” interest to appeal because it is the public’s interest, as is the case of the budget.

2. The Government Commissioner’s Report Establishes New Jurisprudence on the Definition of “Direct Interest”

In contrast, Government Commissioner Judge Naji Serhal requested the State Council to consider the petitioners as enjoying the capacity and eligibility that are required to appeal. Based on French jurisprudence,[3] the government commissioner proved that the interest condition should be interpreted in a manner consistent with the primary objective of the revocation petition for the abuse of power, i.e., preserving the principle of legality. Thus, the petition must be available to the largest possible number of individuals, in observance of the right of citizens to access justice and the principle of legality. Serhal also pointed out that adopting a narrow interpretation of interest and capacity in the petition is a negative indicator that contradicts with the objective of this petition, and results in reinforcing illegal administrative decisions. He based his remarks on the evolution of the French jurisprudence and doctrine in this regard, relying on references in the administrative law, such as Chapus and Horiou[4] in his interpretation of capacity and interest. Serhal confirmed that the decisions required for revocation are ones that are of interest to the citizens and would negatively affect the state’s economy and finances. The report called on the State Council to perform its monitoring role of administration for two reasons. The first pertains to the seriousness of the issue at hand which includes many violations of the Constitution and the principle of legality; the second pertains to the exceptional circumstances in the country, most prominently the absence of a “contested parliamentary oversight”.

3. Sects Have Rights No Others Have

The State Council's decision was contrary to its previous inclination in the case brought against the state by the Maronite League to revoke the naturalization decree for abuse of power. In its decision issued in 2003 on the Maronite case, the State Council considered that “no association may grant itself -in an absolute manner- the capacity and interest to sue the state over a decision that affects the interests of the country as a whole and its components, and is closely related to the state exercising its sovereignty; otherwise, every association of religious or sectarian identities will claim the right to sue the state…”. The State Council went on to draw attention to “the noticeable leniency adopted by the administrative jurisprudence on the revocation lawsuit as it [the State Council] wishes to revoke an illegal administrative action”.

A comparison between the 2016 and 2003 decisions reveals very important things. Why did the State Council “wish” to adopt leniency in the naturalization decree issue, but not in the budget case, despite the fact that a long absence of the budget law has very negative consequences on public interest? Does the desire arise when the decision demanded for revocation threatens the interests of the sects, and wanes when the decision (the subject of the petition) threatens the entire entity of the state?

Conclusion

In the indeterminacy of the legal norm, critical legal theory seeks to show how any legal principle can be used to get contradictory legal results,[5] according to the role played by the “human” agent, i.e., the judge. These theories also indicate that law cannot be separated from politics. Even if judges base their rulings on technical and substantive considerations, they have the discretionary power to assess the criteria and are, in this context, influenced by their ideological and political orientations. If the separation of law from politics and ideology is possible in some cases, it remains a difficult perception in cases that question the legal system in the country and the accountability of authority. Therefore, the interpretation of interest and  capacity can be either narrow or liberal, and varies depending on the judge’s view of their role as a safety valve for the society or as a protector of the interests of authority.

This article is an edited translation from Arabic.

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[1] Decision No. 19729/2014, issued on January 12, 2016.

[2] See: Nizar Saghieh’s, “Redeeming Public Policy in Lebanon: Putting the Republic on Trial”, The Legal Agenda, Issue No.22, November 2014.

[3] In addition to the government commissioner’s report, we refer to other French jurisprudence; for example, the French State Council considers that the status of the user in the public service (usager d'un service public) is enough to consider that they have an interest in addressing, organizing, or performing work-related functions to the public service (CE 21 déc. 1906, Synd. des propriétaires et contribuables du quartier Croix-de-Seguey-Tivoli, Lebon 962, concl. Romieu). The Council also considered that taxpayers in a certain region have an interest to challenge the decisions of that region that have financial implications on them (CE 4 Juill. 1997, req. no 161380, Région Rhône-Alpes, Lebon 276).

[4] See: Assistant Government Commissioner Naji Serhal’s report No. 19729/2014, November  17, 2015.

[5] The Bridge, “Critical Legal Studies Movement”. N.p., 2016. Web. February 22, 2016.