At least two days before the seventy-first celebration of Lebanese independence on November 22, patriotic responsibility dictates that, if parliamentary elections have not been held, then a law must be in place extending the term of the current parliament for the second time in succession, lest Lebanon—on its Independence Day—be transformed into a series of tribal states instead of the state of tribes it is today. After all, to have no parliament makes it impossible to elect a president—i.e. a presidential vacuum—and if no president is elected before November 20 then, in accordance with Article 96 of the constitution, Tammam Salam’s government will be dissolved and it will be impossible to form a new one.
Deciding the outcome of parliamentary elections allows the continuation of the state’s existence, from which position all possibilities remain on the table—which is why the issue of elections should be given top priority in the run up to Independence Day. The procedures for conducting parliamentary elections are well known and require no laws to be passed, only directives from the Interior Ministry, and so the only thing preventing them being carried out is security, i.e.: the current situation and likely future scenarios are not conducive to carrying out a large-scale democratic process such as the parliamentary elections, thus making space for the process of extending the parliamentary term to come into effect before a vacuum does.
Extending parliament’s term requires a law to be passed. This process may begin either with the cabinet presenting a draft law to the parliamentary chamber, or with one or more deputies proposing a law (Article 18 of the Constitution) provided that the number of signatories does not exceed ten MPs (No.101, Internal Rules and Procedures).
Once either of these two initiatives have been launched the procedure is the same. The chamber debates the draft/proposal and the initiative can be passed with an overall majority of sitting deputies (in the case of all 65 MPs being in attendance, a majority of 33 would be required). Former president of the Constitutional Council, Judge Wajdi Mallat did not oppose extending the parliamentary term in circumstances that might—to put it mildly—detract from its democratic nature, but rather posed a question that out of respect for the rulings of the Council that he headed he neglected to answer. In the introduction to a 1972 book on the elected chamber he wrote: “Is it permissible for this parliamentary chamber, its term defined as four years by ordinary law and subject from the moment of its election to the conditions laid out in Article 42 of the constitution, to extend its own term by virtue of ordinary law or does such an extension require a constitutional law that temporarily suspends the rulings of this constitutional article?” Article 42 of the constitution stipulates that parliamentary elections must be held during the sixty days preceding the end of the current parliamentary term.
Overlooking this point and returning to the progress of our hypothetical initiative, if the draft/proposal is passed by parliament, the speaker must forward it to be promulgated and published through the office of the prime minister. Here a number of possibilities come into play, especially since the ratification of the draft/proposal requires the signature of prime minister and relevant minister(s) before being forwarded to the president of the republic to be promulgated and published. No one in cabinet has the power to block the law, since the signing process is procedural: only after the law has been passed can the prime minister move to have it invalidated by the Constitutional Council. In the current situation this aspect is complicated by the fact that the president’s powers have been assumed by the prime minister. Normally speaking, when the president receives the law, he has the power to send it back to parliament and refuse to publish it, but if parliament then re-endorses the law with an absolute majority of 65 votes the president is obliged to publish it and, should he refuse, the law is to be regarded as “in force, and its publication obligatory.” In previous cases, laws have been published in the presence of the president without being promulgated by him, but even in these instances the president has the right to challenge the law before the Constitutional Court to have it rendered invalid either partially or wholly. These powers have now passed to the cabinet until such time as a new president is elected. This means the cabinet is currently in the possession of the power of determination and holds a dual role in overseeing the passage of the extension law: firstly to issue it and request its promulgation, and secondly to challenge and invalidate it. As a result, any initiative to extend the parliamentary term cannot be pursued to the end without the consent of the “presidential” cabinet, and by extension, without the consent of the prime minister, who shares the cabinet’s power to refuse to issue the law and who has his own powers to challenge it before the Constitutional Court. It is therefore impossible to claim that the cabinet does not possess the power to challenge the law before the Council, yet if cabinet has approved the law in the name of the president, how can it subsequently move to invalidate it?
Here we should examine the principle that cabinet’s presidential decisions be passed unanimously. In the case of the issue before us, this principle has no basis in law, for when the legislator granted the presidency’s powers to cabinet, he did not place any extra conditions to limit cabinet when it issued rulings in the president’s name. In other words, cabinet makes its rulings based on the same conditions that apply to the president himself. Theoretically, the constitution does address the issue of cabinet consent, stating that if a decision is not passed unanimously then a simple majority is required, with the exception of specific instances when a two-thirds majority is required, though these do not include presidential rulings. From where, then, did cabinet derive this constraint of unanimity? The most restrictive condition mentioned by the constitution is a two-thirds majority. It should be emphasized that the principle of unanimity is not only absent from the Lebanese constitution, but from every constitution in the world with the exception of federal entities where the federation’s constituent states hold separate votes. Only in one article (Article 77) does the Lebanese constitution mention a more restrictive condition—that of a three-quarters majority—though the circumstances required to bring this into effect are almost entirely unlikely to occur.
The process for extending the parliamentary term is fundamentally uncomplicated: it calls for no additional procedures to those governing the ratification of any regular draft law or proposal. While the current government shoulders the dual burden of presidential and procedural responsibilities, this should cause no more than a month’s delay in issuing the extension law—or any other law, for that matter—since should the “presidential” cabinet refuse to issue and promulgate the law and return it to parliament, parliament could return it with an absolute majority and it would thus come into effect in no more than four weeks from the time of its referral.
The state is faced with two options. Either it can hold parliamentary elections before November 20, or it can extend the parliamentary term. If the current security situation does not permit even the most superficial appearance of the democratic process to take place, then the extension is a patriotic responsibility.
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First published in Arabic on August 20, 2014 in Assafir Newspaper
Translated from the Arabic by Robin Moger