Outsiders looking in on Lebanon’s political crisis must find the endless, circular debates over constitutional issues rather perplexing. Isn’t there some kind of supreme or constitutional court, many must wonder, responsible for interpreting the constitution?

In Lebanon, the answer is yes – and no.

The 1989 Taif Agreement called for the establishment of a Constitutional Council to “interpret the constitution, to observe the constitutionality of the laws, and to settle disputes and contests emanating from presidential and parliamentary elections.”

However, when Council was formed in 1990 under Article 19 of the constitution, its mandate had been modified by a parliament jittery over the idea of granting an independent body such power, with the first clause – regarding the Council’s authority to interpret the constitution – removed. Instead, the Council’s duties were laid out as to “supervise the constitutionality of laws and to arbitrate conflicts that arise from parliamentary and presidential elections.”

Had its mandate been left in place, the Council might have been able to resolve some of the arguments at the center of the current crisis. However, the only institution that has the right to interpret the constitution today is the parliament.

Nonetheless, the Constitutional Council remains one of two pillars of the Lebanese judicial system, along with the Higher Judiciary Council, the body responsible for trying presidents and ministers. The Constitutional Council is often referred to as Lebanon’s “supreme court” – and yet, at present, it is effectively paralyzed. After years of serving as an instrument for Syrian influence, the court was controversially dissolved in 2005, and its reformation has been suspended by the current political deadlock.

The Syrian years

“During Elias Hrawi’s presidency, the Constitutional Council made important achievements,” Marwan Sakr, a Lebanese lawyer and professor of law at the Université Saint-Joseph, told NOW Lebanon. “That Council’s main achievement was to resume municipal elections after being frozen for many years,” he added.

However, when Emile Lahoud assumed the presidency, he turned the Constitutional Council into an instrument of Syrian power, supervising the appointment of the judges in coordination with Damascus – he even arranged for his own brother to be placed on the Council – and frequently guiding its rulings. One of the most infamous cases was that of the 2004 Metn parliamentary by-election, in which the Council overturned the victory of Gabriel al-Murr. The court ruled that Murr, who defeated Mirna al-Murr – his niece and the candidate put forth by President Lahoud and the minister of interior – violated Article 68 of the electoral code, which prohibits televised campaign advertising, and Article 66, which prohibits the distribution of campaign leaflets on Election Day. The Council ignored the fact, however, that majority of candidates in that election and others had also violated the same codes, singling out Gabriel al-Murr for punishment. The ruling was followed by the closure of Murr’s television station.

When the first half of Lahoud’s Council’s terms expired, the sitting government of Omar Karami intentionally failed to appoint its share of new judges in order to keep the current, expired members on the Council – simply because they served the interests of Karami, Lahoud and their allies. So in 2005, the Council was still composed of Lahoud’s original pro-Syrian line up.

Safeguarding independence?

“These practices continued until the 2005 parliamentary elections,” recalled Sakr. The new anti-Syrian parliamentary majority recognized that several components of the Constitutional Council’s bylaws, as well as its composition, needed to be changed. Therefore, a draft law was submitted to parliament immediately following the elections, proposing a new Council along with key changes in the way that judges would be appointed.

The parliament started the procedure to form the new Council, introducing a system designed to prevent many of the problems endemic to the Council in its first 15 years. Under the new law, candidates would nominate themselves, then enter into a rigorous interview process with a parliamentary committee, based on which 10 new Council members would be selected. When the parliament’s activities were halted a year ago, the interview process was already underway. However, since the parliament has not been called for a single ordinary session since opposition’s protests began last winter, the committee has been unable to meet, and the formation of the Constitutional Council was suspended, leaving Lebanon with a judicial vacuum.

In an interview with NOW Lebanon, MP Boutros Harb, who is also a lawyer and a major force behind the new law, said that to understand what happened to the Constitutional Council, one must remember how the existing body had been formed. With many of the Council’s judges selected by the Syrians, its members had little credibility as impartial arbitrators in the eyes of the anti-Syrian majority.

“[The Syrians] formed the Constitutional Council through forces that were under their control.  They were able to put pressure on these persons to render any decision they wanted. That's why, after the new elections, we felt that this Constitutional Council could not continue,” stated Harb.

“[President Lahoud] has his position against some Lebanese, and especially the majority who was elected during the elections,” he said. “That's why I, personally, submitted a draft law to change the law of the Constitutional Council in order to elect persons who are credible enough to be able to judge and to play that role.” 

A political storm was set off by opposition figures. The dismantling of the old Council constituted a blow to Lahoud and the opposition MPs, who had already filed complaints challenging the results of the 2005 parliamentary elections. They were counting on the Council to overturn March 14’s victory, and change the opposition’s minority status into a majority within the parliament. “Aoun’s block refused to vote on the draft law, and although the president refused to sign it, the new law was official,” Sakr noted.

Although President Lahoud had asked them to keep working despite the law’s passage, the sitting Council members chose to resign rather than face off against the new majority and risk jeopardizing their careers. Opposition members accused March 14 of dissolving the Council for political gains.

Harb denied that March 14 was responsible for the Council’s current paralysis.

“They are not meeting because they are afraid. They stopped practicing their prerogative, and they even stopped receiving their salaries,” stated Harb. As for replacing the old Council, he noted that, “We tried to select new members, but the process stopped when the war started and the parliament did not meet. That is why we don't have a Council.  It is not our fault.  It is [the opposition’s] fault. If the parliament were supposed to meet, if the government were supposed to continue, I am sure that the Council would be formed with new members, and they would have been able to look into all the MPs' demands,” he said.

For better or for worse?

Ziad Baroud, a prominent human rights activist and lawyer, told NOW Lebanon that changing the Council’s law when challenges to the elections results had already been filed was not very good timing. “Technically, making amendments to a constitutional institution during a time of crisis might not be beneficiary,” he said. “Significant amendments like the ones made to the Constitutional Council need a tranquil period, otherwise it would appear that amendments were made for the advantages of one party,” he noted. Baroud believes that the opposition’s objections to the amendments would have been irrational were it not for the fact that they had already filed complaints with the old Council.

It is certainly troubling that, more than two years after the 2005 elections, no recourse has been provided for those who wished to exercise their constitutional right to challenge the election results.

However, at the same time, it would be unreasonable to suggest that the parliamentary majority, having just recovered Lebanon’s sovereignty after years of Syrian occupation, should have permitted the legitimacy of their victory to be evaluated by a tainted, pro-Syrian Constitutional Council that was allied to the complainants. Such a move would have constituted not only political but also national suicide, essentially handing power back over to Syria. While the timing may have been inopportune, it was inconceivable for the new parliament to keep the Constitutional Council – one of the highest judiciary institutions in Lebanon – under Syrian authority.

Building a state, one institution at a time

Today, the Constitutional Council is effectively nonexistent, and regardless of who is to blame, a new Council urgently needs to be formed to carry out its duties. Unfortunately, the political deadlock that paralyzed the institutions responsible for forming a new Council is still obstructing the process. And in any case, as Sakr observed, even if the parliament were to start meeting again tomorrow, it would still have many issues higher on the agenda than the Constitutional Council.

The absence of strong, impartial judicial institutions in Lebanon is a major issue that receives far too little attention from policymakers and citizens alike. The fact that a body as crucial as the Constitutional Council could be suspended for over two years without widespread public outrage is perhaps symptomatic of both how little stock most Lebanese put in the judiciary, and how desensitized people have become to anything less than existential problems.

But at the end of the day, having an independent judiciary capable of enforcing its rulings is an existential issue, as it is an essential component of the state. Strong institutions do not spontaneously appear: They have to be built.

An important step in the right direction, made all the more urgent by the current political crisis, would be the restoration of the Constitutional Council’s original mandate as articulated under the Taif. The right to interpret the constitution belongs with an independent panel of experts, not with the legislature. After all, even if parliament had been meeting regularly throughout the past year, rather than frozen by Speaker Nabih Berri, arbitrating on the problematic constitutional issues that have dogged Lebanon – such as whether the cabinet is legitimate after the withdrawal of six opposition ministers last November, or whether a two-thirds or simple majority quorum is necessary for presidential election sessions – would have posed a fairly obvious conflict of interest for the MPs.

Forming a genuinely “neutral” body for constitutional interpretation is both controversial and challenging in any country; in Lebanon, it may today be nearly impossible. However, laying the foundation for such institutions is necessary if Lebanon is ever to become a strong, sovereign and independent state, capable of protecting the rights of its citizens.

In establishing the guidelines for the Constitutional Council, the Taif Agreement articulated the following mission:

To guarantee that all officials and citizens are subject to the supremacy of the law and to ensure harmony between the action of the legislative and the executive authorities on the one hand, and the givens of common coexistence and the basic rights of the Lebanese as stipulated in the constitution on the other hand.

Ambitious goals in Lebanon today. But as the country attempts to navigate out of the present crisis towards a viable national future, they may be more critical than ever.