In 2018, Whom Did the Law Serve in Lebanon?
“Whom does the law serve?” This question poses itself in any society wishing to take measure of its democracy. Who creates the broad strokes of legal norms and regulations, and how representative are they? What are the constraints that govern how they work? No less importantly, what forces are capable of influencing those who determine these norms and regulations? Who can push or urge them to put certain norms in place, or discourage or prevent their adoption? And finally, what avenues are available for engaging legal norms in order to confront those who make the law?
Who Designs Legal Norms and Regulations?
Among the most notable events in Lebanon in 2018 was the first legislative election held since 2009. The election took place in accordance with a new election law which combined a number of electoral systems, balancing between proportional, preferential, and majoritarian forms of voting.
In the previous electoral system, the political bloc that gained the majority of votes in a particular district was awarded all of that district’s seats. The new system differs from this by featuring proportional voting, which grants each electoral list a certain number of seats based on the proportion of votes it receives in a given electoral district. The preferential system permits each voter to cast a preferential vote for one of the candidates on the list they select. The seats that a list wins are then given to the candidates who obtained the highest number of these preferential votes. Granting this single preferential vote made the electoral choice more personalized and more sectarian: generally speaking, it gave the advantage to those who were strongest, most influential, and most capable of provoking sectarian sentiments. Finally, majoritarian voting remained in place through the downsizing of electoral districts (one of which was limited to five seats). Generally, this factor guaranteed both that the major political forces would divide the seats among them, and that opposition and newly emerging political parties would be marginalized.
As a result, the political forces that had dominated Parliament from 2009 through 2018 were able to re-allocate the seats among themselves, in one way or another, with very few exceptions. The Ministry of Interior contributed to this outcome as well by limiting the authority of the Electoral Supervisory Commission. In particular, the Commission’s limited resources practically prevented it from imposing meaningful oversight regarding the wielding of influence, electoral spending, or campaigning.
The impact of the presence of opposition members in parliamentary speech and action should not be disregarded. And yet, the trend of the legislative process remains connected to a large degree to the considerations of a “consensus” system – that is, a system built on agreements reached between the ruling sectarian powers – especially when it comes to passing the laws that wield the most influence in public life. This system can be accurately referred to as a system of leaders [zu‘ama]. The best evidence for this is the basis on which the government was established pursuant to these elections. It only materialized after nine months of negotiations and bargaining among the ruling forces, which ultimately remained the same as they had been before the elections. One of the greatest flaws in this system is the extreme flexibility it grants to political authorities in favoring agreements in place between elites over any other legal norm, up to and including constitutional principles.
Furthermore, the previous Parliament passed a public budget law for 2018 in explicit violation of the Constitution. Specifically, Article 87 of the Constitution requires that the accounts of the previous year be approved before passing the next year’s budget. The current Parliament has continued to permit the violation of constitutional articles regarding the public budget, passing a law that permits the government to operate on a monthly basis, with each month’s budget calculated according to the previous year’s budget, until May 2019. Both the Minister of Finance Ali Hassan Khalil and the Prime Minister Saad Hariri unashamedly demanded that members of parliament pass an unconstitutional law, justifying it out of “necessity.” Legislators were swift to concur.
An equally serious matter was the justification of serious legal violations on political grounds that were at their heart considerations connected to quotas. We can discern this in the prime minister’s responses to questions put to him by members of Parliament. Some of these questions concerned arbitrary employment practices that took place shortly before the election: positions were granted without a competitive process, without providing employment to those who won competitions for the positions. There were also questions posed regarding the length of trials and pretrial detention, as well as the implications of both of these issues for requests for a general amnesty for serious crimes. Although these questions stemmed from a set of constitutional and legal principles, Hariri was swift to say they were not legal, but political matters. And so the central question of this article – whom the law serves in Lebanon – becomes analogous to another more obvious question: whom do the political authorities serve in Lebanon? So long as possessing this authority allows a person to evade all constitutional and legal checks on power, they are at best a bargaining chip. Used by one side or another in negotiations, they can be abandoned unashamedly in the interest of arriving at a consensus.
Compounding this system’s dominance in both creating laws and determining who benefits from them is the push to centralize both lawmaking and the authority associated with it. This is the product of a number of factors: for instance, a subcommittee of the Administration and Justice Committee has been slow to study a draft law on decentralization that has been pending before the subcommittee for years. There has also been a deliberate delay in founding or forming a number of bodies that have been established by law and which are supposed to be participating in proposing, producing, implementing, or monitoring the implementation of legal material. The most important of these bodies include the National Commission for Food Safety, regulatory bodies for electricity and telecommunications, and the National Commission on Discovering the Fate of the Missing and Forcibly Disappeared.
And while the members of the National Commission for Human Rights were appointed in May 2018, its members have not yet been sworn in, nor has the order specifying their salaries been issued – despite the fact that the law requires that members work exclusively for the Commission. Most significantly, although the law requires that members of this commission be appointed to a Committee on the Prevention of Torture, the order naming these appointees has not yet been issued.
What Forces Have Influence Over Legal Norms and Regulations?
Upon reviewing the legislation written in 2018, it becomes clear that the greatest influences in creating it came from donors and lenders. This transpired by way of stipulations imposed through the “Cedar” (CEDRE) program [of foreign financing]. The strength of this influence stems from the fact that the program provides the government with the opportunity of a loan in excess of ten billion American dollars to implement services or development projects.
Thanks to the influence of the states participating in the program, major legislation was passed relatively quickly with the goal of establishing a legal framework for its projects. These included laws regarding water, air, solid waste treatment, and equally importantly, laws intended to fight corruption. These included a whistleblower law as well as a law promoting transparency in the oil sector and a law amending taxation procedures.
In order to pass some of these laws, especially in the wake of the 2018 elections, exceptional legislative sessions were held despite a governmental vacuum that lasted for eight months following the elections. This broke with the previous custom, according to which no legislative sessions were convened in the absence of a government. This was justified by way of so-called “legislation of necessity” – in exactly the same manner as took place during the years when Lebanon had no president. This kind of legislation was needed to meet the conditions of the Cedar program.
Meanwhile, the influence of those wielding economic influence, from entrepreneurs to endowments, was apparent in a number of other laws. It manifested in particular in the Public Budget Law of 2018, which forgave many individuals that had been charged with fines and even waived taxes owed. This violates the principle of equality among taxpayers and encourages violations of the law – and without any justifying grounds.
The legislature also restored regulations used to assess property taxes by which taxes are calculated separately based on the individual revenues of each property. In practical terms this diminishes the possibility of implementing a progressive tax on property owners. The budget also included an article providing for the settlement of building violations. The Constitutional Council, however, reversed and annulled this article on the pretext that it was a budgetary rider.
By contrast, the influence of other social forces [on lawmaking] remains extremely limited. One exception was the passage of a law on the missing and forcibly disappeared. This reflects a victory for public movements, and in particular the decades-long movement driven by relatives of the missing. Even so the law remains contingent upon the establishment of sound mechanisms for its implementation. Besides this, no other victory was claimed by other social demands or aspirations, either in passing or preventing any particular law.
Even so, it is worth pointing out that following public movements reveal that there is significant development of rights-based movements on issues connected with environmental protection and defending the independence of the judiciary (for example, the establishment of a Judges Club for Lebanon, and a proposed law on the independence and transparency of the judiciary, adopted by a number of parliamentary blocs). It is hoped that these indicators will lead to the achievement of specific gains in 2019 or beyond.
Are Legal Norms and Regulations Used to Advocate for Justice or Confront Those in Power?
Finally, we consider the extent to which movements have succeeded in using legal norms and regulations to strengthen their rights or to confront political authorities. The most productive arenas in this matter include the work of the judiciary and both traditional and non-traditional oversight bodies in their various jurisdictions.
In this sphere, resorting to the Constitutional Council is only an option for members of parliament (in a group of ten), the presidency, and, when it concerns matters of personal status law and the rights of sects, to the head of each sect. Even these actors’ rights are restricted to appealing recently issued laws, which must be done within 15 days of a law’s publication in the official gazette. The doors of the Constitutional Council are shut in the face of citizens, who are not permitted to challenge laws as unconstitutional. Representatives of the Kataeb Party did succeed in forming a group of ten members of parliament to challenge the Public Budget Law of 2018. In parallel to their appeal, The Legal Agenda submitted a memorandum including an assessment of the contested law – part of its continued efforts to open the door, even a little, in order to grant social forces access to the Constitutional Council.
Through strategic litigation, The Legal Agenda also achieved significant results in a number of fields in 2018. Key victories included a ruling issued in the case of unionized Spinney’s workers. This ruling recognized the violation of the freedom to form a union as a criminal offense. A judge also ruled in support of the protection, and even encouragement, of freedom of expression, specifically the freedom to expose corruption, on the basis of Article 13 of the International Convention Against Torture.
There were also two appeals court rulings rejecting the criminalization of same-sex relationships in the private sphere. The State Council also annulled instructions that had been issued by the General Directorate of General Security regarding the entry and residence of Syrians in Lebanon, which the government had been reluctant to enforce. Even so, the results of strategic litigation remain limited in the areas of maintaining public property and environmental protection. It is hoped that the development of social movements in this area will produce results. Finally it is worth highlighting the significant work of the Litani River Authority in bringing polluters of the river to trial before the judiciary. It is hoped that this approach will serve as a model for cleaning up all of Lebanon’s rivers, as well as the sea.
Keywords: Law, Lebanon, Legal norms, Legislation