The Constitution and its Loopholes

by Dr. Wissam Lahham

Since October 17, 2019, Lebanon has witnessed an unprecedented political crisis in
terms of its economic repercussions and its threat to citizens' freedoms and social
rights. This was accompanied by an almost complete impotence afflicting state
institutions, which failed to find democratic solutions that would lead to a way out
of this crisis by resorting to clear constitutional mechanisms. In fact, the
constitutional text itself sometimes contributed to exacerbating the raging political
conflict between the pillars of the ruling authority.

There is no doubt that the “National Accord Document “ (or what is known as the
Taif Agreement) on the basis of which the Lebanese constitution was amended in
1990, contained a set of provisions that are usually referred to as “reforms”,
knowing that this description lacks accuracy, as it conceals political goals. Those
amendments, which came in conditions of internal war and regional and
international intersections, necessitated the enshrining of the new political balance
in constitutional texts. Therefore, it was better to distinguish between two types of
amendments approved by the Taif Agreement:

 Actual legal reforms aimed at strengthening citizens' rights

and protecting their basic freedoms by creating institutions that guarantee respect
for these rights and freedoms. Perhaps the most important reform that took place in
this field is the establishment of the Constitutional Council, which for the first time
introduced constitutional control over laws, as well as adding an introduction to the
constitution, explicitly declaring Lebanon’s commitment to the Universal
Declaration of Human Rights, provided that the state embodies these principles in
all fields without exception.
  The constitutional amendments, which can only be understood through the
sectarian nature of the Lebanese political system, if they are not aimed at
activating the work of state institutions or ensuring greater protection for
citizens' freedoms and rights. These amendments wanted to redistribute the
powers of the constitutional references on sectarian grounds in order to
enhance the consensual nature of the Lebanese system and to secure the
largest possible degree of participation in the decision-making process. From
here, we understand the transfer of executive power from the hands of the
Maronite President of the Republic to the sectarian mixed cabinet, as well as
expanding the powers of the Sunni Prime Minister and making the term of
office of the Shiite Speaker of the House of Representatives extend
throughout the term of Parliament, while before 1990, it was limited to one-
year subject to renewal.

Thus, if the Constitutional Council has experienced more than one setback during
its career due to the interference of the dominant political parties in its work, then
the problem remains that the current Lebanese constitution has proven not only its
inability to find solutions to the recurring political crises that Lebanon experienced,
but also the extent to which the so-called “leaders” system has benefited from this
inability to disrupt the work of institutions and practice mutual blackmail in order
to achieve their authoritarian interests at the expense of the logic of the state and
the proper and orderly work of official institutions.

It is often rumored that the amendments introduced by the Taif Agreement led to
the weakening of the President of the Republic, who no longer embodies the
executive authority, for the latter was transferred, in accordance with the new
Article 17 of the Constitution, to the Council of Ministers. There is no doubt that
this approach is not sufficient to give us an integrated picture of the reality of the
executive authority after 1990. It is true that the Taif Agreement transferred the
greater part of the powers of the President of the Republic to the Council of
Ministers. However, it is more correct to say that the 1990 amendments led not
only to the weakening of the President of the Republic, but also to the weakening
of the executive authority as a whole, which has lost its actual ability to implement
its project for governance, regardless of the content of the project or its political
dimensions.

This is evident by studying the relationship of the executive authority with the
legislative authority (section one), then by analyzing the nature of the relationship
between the pillars of the executive authority itself (section two), and finally by
addressing an emerging phenomenon that is disguised as constitutional, in order to
justify political interests, a phenomenon that came to be known by the council as
"the master of himself " (section three).

Section One: The constitutional deficit in the relationship of the executive to

the legislative power

The constitutional experience in Lebanon after 1990 proved the existence of a

defect in the relationship of the legislative and executive authorities. Although
paragraph “e” of the preamble to the constitution stipulates that “the system is
based on the principle of separation of powers, balance and cooperation”, it turned
out that this balance was disturbed in the interest of the legislative authority. This
led some to believe that the Lebanese system has become skewed towards the
council system, so that the government is subject to Parliament without possessing
the tools in order to influence the latter.

This was clearly manifested in the government's loss of the constitutional means
that would theoretically allow it to implement its program in an effective manner
without the need to conclude political settlements with the various parties
represented in the House of Representatives. Therefore, it was necessary to
rationalize parliamentary life in Lebanon in order to ensure the effectiveness of the
executive authority and the speed of decision-making without prejudice to the main
principles of the parliamentary system in terms of government responsibility and
its submission to parliamentary accountability.

There is no doubt that the decline in the role of the executive authority after the
Taif Agreement is clearly evident in a group of constitutional phenomena and
practices that we can enumerate according to the following:

First: The Cease in issuing legislative decrees

Legislative decrees are a kind of exceptional powers, through which the House of
Representatives delegates its legislative competence in specific subjects and within
a limited period of time to the executive authority. This is done by voting on a law,
under which the Council of Ministers may approve decrees that fall within the
legislative field. Lebanon has known the phenomenon of legislative decrees since
1929, when the House of Representatives granted the government of Emile Edde
exceptional powers to organize state administrations. This matter was repeated
more than once after independence. Nevertheless, we can say that the most
important Lebanese legislation was issued under legislative decrees, especially
during the era of Fouad Chehab.

The importance of legislative decrees lies in their political symbolism, as they lead
to the concentration of power in the hands of the government by giving it the
necessary legal means to implement its political project. Expanding the powers of
the government means that the latter is committed to achieving clear goals within a
certain period. Therefore, it needs to take quick measures that have immediate
effects without passing through the House of Representatives, which requires not
only a longer time, but also negotiations among the various parliamentary blocs in
order to reach an acceptable settlement to all, which may lose the usefulness of the
bill.

Consequently, this concentration of power in the hands of the government leads to

a rise in its responsibility not only to the parliament but also to public opinion,
which can clearly define the government’s responsibilities by judging its work in
terms of its success or failure in reaching the desired goals. Having a clear and
central body for decision-making generates the ability to hold it accountable
without lending this body the ability to evade responsibility by invoking that it
does not have the necessary means to fulfill its promises, or by blaming others, as
is happening today due to the quota nature of the cabinet’s composition.

After 1990, a dominant discourse prevailed claiming that the legislative decrees are
mechanisms that violate the constitution. The Speaker of the House of
Representatives has announced more than once his refusal to grant the government
these powers, considering that this is a constitutional violation, as the legislative
authority is not entitled to delegate its powers to another authority without an
explicit constitutional text allowing this matter. The position of the Speaker is not
new, as he refused exceptional powers since the first government of Prime Minister
Rafic Hariri in 1992, and he stressed the matter after his re-election in 2005, saying
in his speech before the Council: With the last 3 established parliaments, we have
refused to grant exceptional powers to any of the governments. Just as we have
combatted, unlike no other council in contemporary democracies, every attempt to
marginalize the council. Therefore, after 1990, no authority was granted to the
government to issue legislative decrees, which made it lose an important means to
implement its program quickly and effectively.

There is no doubt that the constitutional argument is just a way to hide the political
reality of the issue of exceptional powers by emphasizing the need to respect the
principle of separation of powers and to prevent the “marginalization” of
Parliament. However, this argument is not consistent with sound constitutional
logic, since the adoption of a law authorizing the government to take legislative
decrees is a valuable opportunity that the Speaker of the House of Representatives
can take advantage of if he really wants to rely on the logic of institutions. Indeed,
he can resort, for the first time since 1990, to using his powers reserved to him in
Article 19 of the constitution, which allow him to challenge the mandate law
before the Constitutional Council. The Constitutional Council is the body
constitutionally authorized to exercise its control over the constitutionality of laws,
that is, it is the body that has the right to present the original interpretation of the
constitution in terms of the extent to which the legislative authority delegates its
powers to another authority and the provisions of the constitution.

Indeed, the Constitutional Council, in Resolution No.1 dated 31/1/2022, addressed

this issue when it discussed the value-added tax law, asking the following question:
Has the House of Representatives “made any constitutionally impermissible
delegation to one of its competencies because it preserved it as a monopoly over
the constitution for the benefit of the Council Ministers or something else? That is,
with regard to the value-added tax law, did the Parliament relinquish its exclusive
authority to introduce taxes in Lebanon, since Article 81 of the Constitution
explicitly states that taxes are approved and collected in Lebanon only by virtue of
a law? The Constitutional Council responded, considering in the conclusion of its
research that “the legislative authority, in the exercise of its powers in the field of
approving laws on the subjects reserved to it , may not abandon it by itself…” This
means that the subjects that the Constitution expressly indicated that they should
be promulgated by law, such as nationality, election law, and taxes, fall within the
exclusive legislative scope of the House of Representatives and cannot be
delegated in any way to another authority. Consequently, all other issues that are
not mentioned in the constitution and for which the House of Representatives has
already passed relevant legislation, can be delegated for a limited period to the
executive authority through the issuance of legislative decrees.

The State Council explicitly addressed the issue of legislative decrees for the first
time in 1955, saying that “there is no provision in the Lebanese constitution that
prevents the legislative authority from authorizing the government to take
legislative measures under its regulatory authority in the face of urgent cases,
emergency crises and the advancement of existing conditions ” ; hence, the
constitutional custom “to resort to exceptional powers by which the legislative
authority delegates the executive authority for a certain period to exercise the right
to legislate in some aspects of activity .” (Resolution No. 522 dated 9/11/1955).
Thus, it becomes clear to us that approving a delegation law is a matter decided by
the House of Representatives and not its president. Determining the
constitutionality of this procedure is a matter exclusively for the Constitutional
Council, bearing in mind that legislative decrees, before their ratification by the
House of Representatives, remain administrative acts subject to appeal before the
State Consultative Council. Whereas, if they were issued by an ordinary law and
were not challenged before the Constitutional Council within the legal deadlines, it
becomes immune from any appeal. Therefore, and in order to resolve the
controversy, it was necessary to devote the legislative delegation mechanism with
a clear constitutional text that allows the government, after the approval of the
House of Representatives, to issue legislative decrees that allow it to take quick
decisions in order to face emergency situations and allow it to implement its
program in a manner without the need to wait for consensus between conflicting
political interests.

Second: suspending Article 58 of the Constitution

Article 58 of the Constitution grants the President of the Republic, after the
approval of the Council of Ministers, the authority to put into effect, by decree,
each bill that the government deems to be urgent without the House of
Representatives taking a decision within 40 days from the date of its submission to
the House of Representatives. This article was used extensively before 1990, for
successive governments used Article 58 more and more without justification
sometimes, which led to the issuance of hundreds of laws by decree.

In the Taif Agreement, it was agreed to limit the use of Article 58 by introducing
an explicit amendment that requires the validity of the deadline to include the
expedited draft law on the agenda of a plenary session and to be recited therein.
But this amendment has practically replaced the discretion of the government with
the discretion of the Speaker of the House of Representatives, who actually
determines the agenda of the House of Representatives, which means that he can
simply not include the expedited bill in the agenda. This leads to its not being read
in the general assembly, and thus the deadline that becomes completely mortgaged
by the will of the Speaker of Parliament, does not apply. This explains why no
accelerated bill was issued by decree after 1990, because Article 58 has lost its
usefulness and is no longer an effective weapon in the hands of the government.

Therefore, Article 58 has to be amended by explicitly stating that expedited bills

must be submitted to the first plenary session convened by the House of
Representatives after they are received, so that the time limit begins to take effect.

Third: The Impossibility of Dissolving the Parliament

With the development of popular participation in elections and the increasing need
for an authority that can take quick decisions in order to keep pace with the
economic and social reality in modern countries, the parliamentary system has
shifted from that which is based on the separation of legislative and executive
powers to a system that continues to respect this separation theoretically; but it
realistically leads to the focusing of power in the hands of one political party that
simultaneously controls the parliamentary majority and the government.

Political responsibility entails the existence of a government with the necessary

powers to implement its electoral promises. Therefore, when the existing
government collapses and the majority fails to form a new government within a
reasonable time, Parliament is dissolved. This is not done in order to punish the
legislative authority or to strengthen the executive authority, but in order to hold
new parliamentary elections from which a clear majority emerges, allowing again
the formation of an effective and responsible government.
The dissolution of the House of Representatives is no longer just a constitutional
measure aimed at securing a balance between the legislative and executive powers.
Rather, it has essentially become a democratic means for resolving political
conflict by returning to the sovereign people. The dissolution of the House of
Representatives is the acknowledgement of the political system that the people are
the actual sovereigns, who must have the final say in major national crises.

Furthermore, if the dissolution of the House of Representatives before 1990 was

constitutionally available, as it only required the issuance of a justified decree by
the President of the Republic after the approval of the Council of Ministers, this
has become almost impossible after the amendments of the Taif Agreement. The
conditions that were added in order to be able to dissolve the House of
Representatives are very difficult and even very rare come true. As is well known,
the Parliament can no longer be dissolved except in the following cases:

If the House of Representatives, for no compelling reasons, refrains from meeting

during an ordinary session or during two successive exceptional sessions, each of
which has a duration of no less than one-month (Article 65)

In the event that it returns the entire budget with the intention of paralyzing the
government from work (Article 65).

If the House of Representatives insists on amending the constitution by a majority

of three-fourths of its total members despite the government’s rejection of this
amendment (Article 77).

Thus, it becomes clear to us that achieving these cases is very difficult, as the
House of Representatives can meet in only one session and then be absent
throughout the normal or exceptional contract, or it can return the entire budget
with the exception of a single article, which leads to preventing the government
from taking the decision to dissolve. Furthermore, the mechanism specified in
Article 77 is very complicated and takes a long time. It has not been used since
1926 till date.

Section Two: Disabling the Executive Authority

The defect was not limited to the relationship of the executive and legislative
authorities, but rather it withdrew within the executive authority, which has
become unable in multiple instances to take its decisions effectively due to the
quota nature of the composition of the Council of Ministers. The weakness of the
executive authority is an inevitable result of the system of “leaders”, which always
prefers to suspend the work of institutions until the dispersion of interests among
its pillars is done. This has effectively lost the government's unity of purpose and
made it, in reality, the place of indecisiveness. The constitutional texts came to
exacerbate the weakness of the government, which is manifested in a number of
phenomena, the most prominent of which are explained in the following
paragraphs.

First: The lack of a constitutional deadline for signing decrees

Article 56 of the Constitution imposed on the President of the Republic a period of

15 days in order to sign decrees approved by the two Cabinets. Otherwise, they
would become effective without his signature. However, the Constitution ignored
setting a similar deadline for the Prime Minister and the ministers, which
practically led to the possibility of suspending the decisions taken by the Council
of Ministers in the event that the Prime Minister or any specialized minister
abstained.
As soon as a minister refrains from signing a decree approved by the Council of
Ministers, this means, in practice, suspending the decisions of the latter and
granting this minister the power of veto. This leads to paralyzing the work of the
government, so that the will of a single minister becomes stronger than the will of
the majority of ministers, which violates the axioms of the parliamentary system
that is based on the principle of ministerial solidarity.

Article 28 of Decree No. 2552 dated August 1, 1992 (organizing the work of the
Council of Ministers) expressly expressed this principle, as it stipulated the
following: “The decisions of the Council of Ministers apply to all members of the
government in accordance with the principle of ministerial solidarity, and the
competent minister must accordingly be obligated to sign draft decrees in order to
implement these decisions”.

For example, Brigadier General "George Fidel" considered that in the event of a
vote taking place during a session of the Council of Ministers, the minority should
accept and join the opinion of the majority, as there is no "opposition" within the
government. Only through his resignation can the minister regain his freedom and
express his rejection of the government's decisions.

In its advisory opinion on amending the internal system of the Council of

Ministers, the State Consultative Council refused to add the following paragraph to
Article 28: “If a minister is prevented from signing within a period of twenty days
from the date of depositing the draft decree, the decree shall be considered
effective without his signature.” The Council justified its rejection according to the
following: “Since the signature of the relevant minister on the decree is the
constitutional method by which the minister (…) manages the interests of the state
and implements the regulations and laws (…) the signature of the concerned
minister on the decree is not only a formality, but it is one of the essential
ingredients for the composition of the issued decree. Accordingly, the absence of
the signature of the concerned minister on a decree, makes the decree a void
administrative act.” (Opinion No.14 dated 1993/8/11). Thus, a decree was issued to
amend the internal system of the Council of Ministers on January 31, 1994 without
adding this paragraph, pursuant to the opinion of the State Consultative Council.

There is no doubt that the opinion of the State Council is consistent with the
current legal system in Lebanon, since imposing a deadline on the minister requires
a constitutional text and cannot be done by decree or even by a legislative text.
Article 54 of the Constitution clearly states: “Decisions of the President of the
Republic must be co-signed by the Prime Minister and the relevant minister or
ministers, with the exception of the decree naming the Prime Minister and the
decree accepting the government’s resignation or considering it resigned”.

This article is considered as a given in parliamentary systems because the head of

state is not responsible before the legislative authority. This dictates that all decrees
issued by him must be combined with the signature of the government, which
bears its responsibility and is subject to political accountability before the House of
Representatives.

In more than one decision, the State Council considered “that the signature of the
concerned minister’s decree is not only a formal matter, but it is one of the
essential ingredients for the formation of the decree issued because it is tied to its
validity. Therefore, the absence of the concerned minister’s signature from a
decree makes this decree an administrative act void because it is issued by an
unvalid authority” (Decision No. 133 dated 4/12/1997).
Thus, it becomes clear to us the contradiction of the Taif Agreement, which,
according to rumors, wanted to transfer the executive authority from a person (the
President of the Republic) to an institution (the Council of Ministers) , but in fact it
granted ministers, or more precisely, the political bodies that control ministers, the
ability to block any government decision that is inconsistent with its authoritarian
interests. Thus, the Council of Ministers becomes the place where settlements are
made between the dominant political parties, even if this is done contrary to the
logic of the rule of law and institutions.

Second: The vacancy of the presidency of the Council of Ministers

If the Lebanese Constitution has awakened to the hypothesis of vacating the

position of the President of the Republic by entrusting the latter’s powers to an
agency in the Council of Ministers, it came devoid of any indication related to the
inability of the Prime Minister to exercise his constitutionally established powers.
The prime minister either exercises his constitutional role in full, or takes care of
business when the government resigns or is considered resigned. The hypothesis of
the prime minister's absence and his absence from his work opens the door to
dangerous constitutional possibilities that lead to the paralysis of the state that has
to be remedied.

Pursuant to the fifth paragraph of Article 64 of the constitution, all decrees,

whether ordinary ones or those established in the Council of Ministers need to
obtain the signature of the Prime Minister in order to be issued. This means that
ministers in all state departments refer draft decrees to the presidency of the
government, who signs them and then submits them to the President of the
Republic who issues it and requests its publication in the Official Gazette.
As a result of the foregoing, it becomes clear to us that the absence of the Prime
Minister freezes all decrees and paralyzes the work of the executive authority. The
same applies to the Council of Ministers, as the latter meets at the invitation of the
Prime Minister, who sets its agenda. In the absence of the Prime Minister, the
Council of Ministers is unable to convene in accordance with the constitutional
conditions, which puts the executive authority in a coma and disrupts the work of
the central apparatus of the state. Faced with this dangerous reality, is there a
constitutional way out that allows ensuring the continuity of the work of state
institutions? And can the Deputy Prime Minister, for example, replace the absent
prime minister?

It has been the custom since the era of independence until today to appoint a
deputy prime minister in a government formation decree. However, it is noted that
the position of Deputy Prime Minister does not have a constitutional existence.
Contrary to the position of the Deputy Speaker of Parliament noted in Article 44 of
the Constitution, there is no constitutional text that mandates the appointment of a
Deputy Prime Minister, which means that his presence is the result of practice in
Lebanon.

But the Deputy Prime Minister in fact does not have constitutional powers. If we
put aside the protocol considerations, the role of the latter is almost limited to
chairing some ministerial committees formed by the Council of Ministers in order
to study a specific topic. This reality is not new and has not changed since
independence until today.

The fundamental point of difference that occurred after the Taif Agreement is not
related to the Deputy Prime Minister, but rather to the necessity of an acting prime
minister. Before 1990, it was customary for the President of the Republic to
appoint an acting Prime Minister, and in many cases, the Deputy Prime Minister
was the one who was appointed as the acting Prime Minister. This practice is very
old and is even older than the independence itself, as the first government that was
formed in Lebanon after the adoption of the constitution in 1926 came vacant from
the position of Deputy Prime Minister. However, the President of the Republic
appointed the Minister of Interior Bechara El Khoury as acting Prime Minister, due
to the absence of Prime Minister Auguste Pasha Adeeb who traveled to France.
Indeed, during the prime minister's absence, Bechara El Khoury signed decrees in
his capacity as acting Prime Minister. This has been repeated over the decades, as
decrees were issued in a constitutional manner with the signature of the person
who was appointed as agency in the presidency of the Council of Ministers.

This practice was permissible from a constitutional point of view before the Taif
Agreement, because the old Article 53 of the constitution granted the President of
the Republic the power to appoint and dismiss ministers, including the Prime
Minister, which made the appointment of an acting Prime Minister fall within the
explicit jurisdiction of the President of the Republic. However, the amendments
introduced by the Taif Agreement to the Lebanese Constitution removed the
authority to nominate the Prime Minister from the President of the Republic, as it
restricted him to a specific mechanism and obligated him to conduct binding
parliamentary consultations, making the appointment of an acting prime minister
impossible according to what prevailed before the Taif Agreement. Indeed, no one
has been appointed as the acting Prime Minister since 1990 until today.

Thus, we note that the one who exercised the powers of the Prime Minister in his
absence was not, according to the ruling, the Deputy Prime Minister, but rather a
member of the government appointed by the President of the Republic as acting
Prime Minister. Since the Deputy Prime Minister today is not an acting prime
minister, he is not entitled to exercise the powers of the absent Prime Minister.

In 1992, the State Consultative Council expressed its opinion on the draft decree of
the internal system of the Council of Ministers, saying: “...in the event of absence,
and in order to secure work in the Council of Ministers and conduct the affairs of
the state and its institutions, it requires the addition of a paragraph (…) that
includes the following: the Deputy Prime Minister, in the event of his/her
presence, holds the sessions of the Council of Ministers in the absence of the Prime
Minister; otherwise the oldest member of the council does so” (opinion 80/92).
However, the decree regulating the work of the Council of Ministers, for well-
known political reasons related to the nature of sectarian balance, was issued
devoid of that paragraph.

Another problem that presents itself is related to the permissibility of the Council
of Ministers convening in the absence of the Prime Minister. It is known that the
sixth paragraph of Article 64 of the Constitution granted the Prime Minister the
power to convene the Council of Ministers and set its agenda, but paragraph 12 of
Article 53 also granted the President of the Republic the right to call the Council of
Ministers to an exceptional session, yet in agreement with the Prime Minister.
Indeed, in late September 1990, when PM Hoss traveled to New York, President
Elias Hrawi called the Cabinet to convene in the absence of the Prime Minister,
which caused political confusion and was remedied by President Hoss’s statement
that this invitation was made with his approval. The Council of Ministers can
convene without the presence of the Prime Minister, but the invitation to the
extraordinary session by the President of the Republic must be accompanied by the
approval of the Prime Minister, even if he is unable to attend. The question to
which there is no answer is it permissible for the President of the Republic to
convene the Council of Ministers without obtaining the approval of the absent
Prime Minister or who is in a position that does not allow him to give or reject that
approval. The theory of exceptional circumstances may be the justification for such
a step, but it must be without political and sectarian obstacles that have nothing to
do with constitutional logic.

It becomes clear to us that the absence of the Prime Minister leads to the disruption
of the state, as all decrees become frozen and the Council of Ministers loses its
ability to meet, which makes it necessary to amend the constitution to find
solutions related to the absence of the Prime Minister, a very urgent issue on which
the life of political institutions in Lebanon depends.

Third: The difficulty of dismissing ministers

Article 69 of the constitution imposed the necessity of two-thirds of the cabinet

members agreeing to a decree to dismiss a minister. This puts the minister in a
fortified position to the point where it has become impossible to dismiss him
without a consensus among the political parties represented in the government. A
minister may take a political stand alone or refrain from implementing the
decisions of the Council of Ministers, in violation of the principle of ministerial
solidarity, without anyone being able to control his actions.

The practical impossibility of dismissing ministers actually led to the absence of

leadership over the executive authority, which has become a collective authority
that cannot function without the consensus of the political forces that control the
decision of the ministers. Thus, the formation of the government is based on the
assumption that any minister is able to disrupt the decisions of the Council of
Ministers in the event that he refrains from signing the decrees approved by the
government or decides to boycott the sessions of the Council of Ministers. This
leads the political forces to delay the formation of the government as long as
possible, because the mere issuance of decrees appointing ministers renders them
in a semi-fortified position, which means that the political parties will have to
exercise as much pressure and mutual blackmail as possible before forming a
government.

What exacerbated this reality, especially after 2005, is the quota nature of the
Council of Ministers, which lacks unity of leadership, as it has become more like
governments than a unified government that operates according to the rules of the
parliamentary system. This has strengthened the authority of the so-called leaders
over the Council of Ministers. The minister is not accountable to the one who
appointed him constitutionally, i.e. the president of the republic in agreement with
the prime minister, not even to the government as a whole or even to the
parliament. Rather, he is responsible only to the leader of the party who brought
him.

Fourth: Disruption of the formation of the government

The truth behind the divisional, interest-based, nature of the leaders’ system also
emerged brightly when the process of forming a government took a very long time
in order to distribute ministerial positions among the various parties, according to
the logic of sharing interests and dominating state institutions so that each leader
could continue to manage his clientelistic network.

Since 2005, the date of the end of the Syrian guardianship over Lebanon, which
used to arbitrate between the "leaders" when they disagreed over the allocation of
the state's wealth and capabilities, the Council of Ministers has become the most
prominent place in which the political balance is embodied between the pillars of
the regime, and the struggle of each of them for hegemony over the largest possible
number of state administrations and facilities. Therefore, the process of forming
the government extends over many months in order to ensure the leaders’
consensus on the distribution of ministerial seats without the existence of any
constitutional mechanism that would allow a way out of the state of paralysis that
afflicts the executive authority due to the presence of a resigned government that
only conducts business.

Usually, constitutions impose in such cases the necessity of dissolving the

Parliament and holding new parliamentary elections in order to get out of the crisis
and form a new government. However, this solution is not only not available in
Lebanon, as we have seen, but the constitution does not provide any other
mechanism that would allow finding institutional solutions to the issue of forming
the new government. The fourth paragraph of Article 53 of the Constitution states
that the President of the Republic “issues, in agreement with the Prime Minister, a
decree to form the government,” which means that the government cannot come to
light without the approval of both the President of the Republic and the Prime
Minister. Thus, the contradiction in the Lebanese constitution becomes clear, as it
forces the President of the Republic to conduct binding parliamentary consultations
to nominate the designated Prime Minister. In that sense, it forces him on the one
hand to nominate whomever the parliamentary majority chooses, even if he does
not agree with him. On the other hand, the constitution also requires a consensus
between the presidents of the republic and the government who are designated to
form a government without specifying any mechanism for settling the dispute that
may erupt between them. For, the only way out is the president-designate’s
resignation, which opens the door for new parliamentary consultations that lead to
assigning another person to form the government, knowing that nothing is even
forbidden to rename the same character who has apologized.

The House of Representatives recognized this persistent constitutional deficit when

it voted on its response to President Michel Aoun’s letter on May 22, 2021, in
which he presented the problem of forming a government and the obstacles it faces
in reaching an agreement with Prime Minister-designate Saad Eddine Hariri. In its
response, the Council of Representatives announced the following: “Based on the
constitutional text on the origins of assigning a president to form the government
and the method of formation in accordance with Article 53 of the Constitution, and
when no other constitutional text was reported over the course of this assignment
and taking a position on it (…) and considering that any position this mandate
extends as well as its limits require a constitutional amendment, which we are not
currently dealing with …” Which means that the Council of Representatives
explicitly recognizes that it cannot constitutionally provide any constitutional
solution to the situation of incompatibility that may arise between the President of
the Republic and the designated Prime Minister.
Some believe that this defect is caused by a constitutional loophole that can be
remedied by setting a time limit during which the designated Prime Minister must
complete the formation of the government, or the assignment will be withdrawn
from him after the expiry of this period. But this perception lacks accuracy,
because the constitutional loophole, if found, is unintended, so that it is only
discovered through practice. However, the lack of a time limit for forming a
government in Lebanon is a deliberate decision that cannot in any way be
considered just an innocent loophole in the constitutional text. During the
deliberations of the Taif Agreement, the idea of granting the designated Prime
Minister a month to form a government was raised, but this was rejected due to
considerations related to sectarian balance, since the deadline would allow the
Maronite President of the Republic to control the Prime Minister-designate, who
may lose his position if he does not submit to the wishes of the President of the
Republic during the month. President Saeb Salam considered that "limiting the
period for the designated president to be able to form his cabinet would inflict
injustice on the Sunni community” which led to the constitutional text on this issue
remaining unchanged.

Thus, it becomes clear to us that the absence of a time limit or any constitutional
mechanism that would allow finding an institutional solution to form the
government is a deliberate political decision and not a passing loophole. The only
available solution is to secure consensus among the leaders, which is in their
interest and enhances their political power. Neither the Lebanese people can
interfere through new parliamentary elections in order to resolve the conflict, nor
any constitutional text that allows an end to the prolonged paralysis of the
executive authority. Only the consensus of the leaders allows for securing the
desired magic solution.

Section Three: The Phenomenon of “The Parliament Is Its Own Master”

A new phenomenon that gradually took control of the constitutional life in

Lebanon and also led to the exacerbation of the imbalance in the relationship
between the authorities for the benefit of the parliament, is related to the newly
developed understanding of the parliament’s “own master” principle, which makes
the parliament the ruling authority on the constitution itself outside of every
restriction or scruple.

Undoubtedly, this saying is just a pretext whose implicit goal is to justify the
consensus among the components of the ruling class by giving legal status to every
political agreement. The danger of this argument lies in its absolute discretion,
which reaches the point of arbitrariness. It was expressed by the Speaker of the
House of Representatives when he announced in September 2017 that the
parliament is the one who enacts constitutional restrictions, and no one can enact a
constitutional restriction in its face. This claim violates the most basic principles on
which constitutional law is based, as it transfers Lebanon to the “sovereignty of
Parliament” system in force in Britain, where there is no constitution according to
the formal definition of constitutions, as parliament’s actions are not subject to any
oversight, for it occupies the top of the legislative pyramid. But the matter is
completely different in Lebanon, as the constitution is the one that established the
parliament, which granted it the legislative authority and prevented it from
exercising its legislative jurisdiction except in the light of respect for constitutional
principles. In addition, clause “E” of the preamble to the constitution expressly
states that “the system is based on the principle of Separation of powers, their
balance and their cooperation “. The balance is not at all consistent with the
tyranny of one authority over another, and therefore the correct interpretation of
the saying of the Council is the master of itself is to leave the freedom to the
legislative authority to set its own rules of procedure.” This is what was actually
stated in Article 43 of the Constitution when it stipulated the following: “The
Council may set its own internal system.” This system cannot include anything that
contradicts the constitution in any way, knowing that the internal system in France
is also subject to the supervision of the Constitutional Council. Whereas, there is
no text in Lebanon that allows this, which led to a breach of the balance between
the legislative and executive powers, since the first can include provisions in the
internal system that would infringe on the powers of the government.
The arbitrary nature of the saying “the Council is the master of itself” appeared in
the parliament speaker’s reaction to the Constitutional Council Resolution No. 5
issued on September 22, 2017 which invalidated Law No. 45 related to the creation
and amendment of some tax articles for the purpose of financing what is known as
the series of ranks and salaries. Such reaction issued, for he considered it an insult
to the Taif Agreement and the presidency of the Council of Representative. This
reflects the implicit logic that emanates from such a position: The Council is the
master of itself to justify the freedom of its president to take whatever decisions he
likes. Thus, we move from the sovereignty of the Council over itself to the
sovereignty of its president over it. The Speaker of the Council reiterated his
opinion that the Council of Representatives is the only one who has the right to
interpret the Constitution, knowing that this is also incorrect, and it is a claim that
has nothing to do with the constitutional law, as every interpretation carried out by
the Council by normal means is a non-binding political interpretation. If otherwise,
the council of Representatives becomes the opponent and the judge in the same
case. The only way in which the House of Representatives has the right to interpret
the constitution is by following the mechanism related to amending the
constitution, since every interpretation involves a veiled amendment. And when
the Chamber of Deputies amends the Constitution, it does so not as the legislative
power, but as the subsidiary (pouvoir constituant dérivé) granted by the
Constitution, among special conditions, the power to amend the Constitution,
provided that this is done in close cooperation with the executive authority, as
shown by reviewing the provisions of Articles 76 and 77 of the Constitution.

The principle of the Council itself only means that the House of Representatives
has the right to amend its internal system without obtaining the approval of the
executive authority. The general practice in Lebanon before 1975 used to explain
this principle through the ability of Parliament to violate its internal system during
the exercise of its powers, but only in matters related to the internal method of the
Council’s work and not in the constitutional issues or those related to the powers of
the government. Note that even the Parliament’s failure to respect its internal
system in matters that exclusively relate to it is a subject of controversy, but it has
become available in Lebanon because the internal system is not subject, as in
France, to the oversight of the Constitutional Council. The necessity of exercising
constitutional control over the internal system of the legislature means that the
latter cannot violate it. Rather, it must, if it wants to amend it, refer the amendment
again to the constitutional reference that is entrusted with exercising constitutional
control over it before its entry into force.

We can refer to some of those practices that reflect the danger of the saying “the
council is the master of itself” according to the following:
 Arbitrariness of the Speaker of the Council of Representatives in how to
calculate the absolute majority of the members of the Council under the
pretext of the House’s master itself. While he interpreted it during the
presidential election session on October 31, 2016 as being calculated
according to the total number of members of the House of Representatives, he
returned and changed his position in the 10/28/2021 session, as he considered
it calculated according to the working members only, not the deceased and
the resigned. This difference in position is only understood if we take into
account the political conflict that erupted between the President of the
Republic and the Speaker of the Council of Representatives over the
amendments to be made to the electoral law. The constitution, requires the
Council of Representatives to vote again on the law, but this time with a tight
majority, which is the absolute majority. Thus, instead of the absolute
majority being 65 deputies out of 128, it has become, according to the
Speaker of the Council of Representatives, 59 deputies out of 117. There is
no doubt that determining how to calculate the absolute majority cannot be
left to the Parliament, since this matter relates to the constitutional powers of
the executive authority, and it was expected that the Council would assume
The Constitutional Council resolved that issue when considering the appeal
submitted by ten deputies to the aforementioned law. However, the
Constitutional Council, due to the political interference that took place, was
unable to reach any result because it was not possible to secure seven
 members, which is the majority required to take any decision within the legal
deadline that ended on 2021/12/21.

 The Speaker of the House of Representatives considers that the parliament is

free to determine its agenda during exceptional contracts, which contravenes
Article 33 of the Constitution that explicitly states that exceptional contracts
are called through a decree that “determines their opening, closing and
program”. For, it is the decree of convocation that determines the agenda of
the Council, which apparently does not have the right to discuss any item not
included in the decree opening of the special session. Parliament Speaker
Nabih Berri announced in January 2022 his objection to limiting Parliament’s
work schedule to the convocation decree, alleging as usual, with the doctrine
of “the Council is its own master,” he said in the following press statement:
“The Council is the master of itself. It is not restricted by any description of
the projects or proposals that the Council’s office decides to put forward, and
the President of the Republic has the right to respond after it is issued by the
General Assembly to the Council. This is the rule of the Constitution and
what it has settled upon. Diligence requires correction. This is another
example of how the arbitrary interpretation of the saying “the council is the
master of itself” leads to a disruption of the balance imposed by the
constitution between the legislative and executive powers, so that the
parliament, with its president behind it, becomes the body that interprets the
constitution according to the fluctuating political interests. The party that has
the right to resolve this problem despite the clarity of the text of Article 33 is
the Constitutional Council, not the Council of Representatives, but the
Constitutional Council has not had the opportunity to date to address this
point.
Conclusion

This narrative showed us that the constitutional impotence and paralysis of state
institutions has become the most prominent phenomenon that characterizes the
Lebanese political system. We found that the reason for this inability is the
weakening of the executive authority pursuant to the amendments of the Taif
Agreement on the one hand, and the emergence of political practices on the other
hand. This led to the transformation of the government from a homogeneous
authority pursuant to the rules of the parliamentary system to a body in which a
balance is secured between the leaders who shared state administrations through a
huge network Quota List and clientelism.

This imbalance has been exacerbated by the phenomenon of “the Council is its
own master,” which practically leads to the liberation of the House of
Representatives from every constitutional restriction in the service of political
interests sponsored by the Speaker of the Council or agreed upon with the leaders
or with a section of the leaders against the other section. Even the few
constitutional means that are still in the hands of the executive authority, such as
the power to put the draft budget into effect stipulated in Article 86 of the
Constitution in the event that the House of Representatives does not decide on
them before the end of January, cannot be resorted to because the government
either does not transmit the draft budget within the necessary deadlines or not
originally transmitted.

Thus, it becomes clear that the constitution has become the pretext used by leaders
to practice mutual disruption and achieve authoritarian gains, instead of playing the
role of a guarantor of the state’s effectiveness and its ability to implement
comprehensive economic and social plans in order to keep pace with the needs of
society. The absence of constitutional mechanisms that allow defending the
interests of the state and resolving political disputes in democratic ways was
specifically associated after 2005 with a political class that took full advantage of
this constitutional deficit that has no way out except the consensus of leaders,
which is always done at the expense of the state’s logic and the sound and regular
work of institutions.