Caught between constitution and politics: the presidential vacuum in Lebanon

Caught between constitution and politics: the presidential vacuum in Lebanon

Beiteddine Palace, Chouf,Lebanon Mountain. Beiteddine Palace, Chouf,Lebanon Mountain. – Creator: Reji on Flick. Creative Commons License LogoThis image is licensed under Creative Commons License.

Introduction

On May 24, 2014 the term of Lebanon’s twelfth post-independence president ended as it had begun: President Michel Sleiman had entered the presidential palace alone, without inheriting his post from anyone, and he now departed Baabda with no one to hand it to. The highest office in the state has fallen vacant and Lebanon once again finds strolling through that political-constitutional minefield which we call the “presidential vacuum”, with no one able to predict how we might escape it, how long this phase might last or what the consequences might be. In a democratic parliamentary system like Lebanon’s, the constitution grants the legislature (i.e. parliament) the power to elect the president. In other words, alongside its legislative powers and its political powers (overseeing the executive), the process of electing the president of the republic is one of the main duties of the Lebanese Assembly, a process that safeguards the principle of a balance of powers.

Article 49 of the Lebanese constitution defines the president of the Lebanese republic as “the president of the state and the symbol of the nation’s unity, who guarantees respect for the constitution and safeguards Lebanon’s independence, unity and territorial security in accordance with the articles of the constitution.” Despite the somewhat idealized nature of this description, the president of the republic does enjoy a position of political primacy in the Lebanese political system. He is head of state, but he also represents the Maronite sect as part of the sectarian distribution system, and though his powers have been curtailed he still plays a central role in the procedural authority. Since 1926, when the constitution was ratified and the Lebanese state formally established there have been some twenty presidents, eight pre-independence [1] and twelve post-independence [2].

When Sleiman’s term in office ended on May 25, 2014, it seemed to many observers that on this occasion, the margin for maneuver was relatively spacious, meaning that this time round, the major political blocs had a genuine opportunity to select a president based on internal (Lebanese) balances of power and relatively free of the regional interventions that had characterized recent years. However, political divisions ensured that the quorum was not reached for those parliamentary sessions that would have ensured the elections took a properly democratic course, in addition to which the various sides could not reach consensus over a candidate. The political divide that Lebanon is currently experiencing dates back to the murder of former prime minister Rafic Hariri and only deepened with the ongoing chain of assassinations and the disturbances of May 2008, before becoming firmly entrenched with the outbreak of the crisis in Syria and its security and political repercussions that directly affected Lebanon. As the numerical weight of the March 8 and 14 blocs achieved parity and in the absence of any other viable political force the democratic process based on constitutional principles was derailed, particularly as convening sessions to elect a president require a bare minimum of consensus, symbolized by achieving a quorum.

For a deeper understanding of the political conditions and legal framework which has led Lebanon to this “vacuum”—i.e. the post of president remaining unfilled—it is necessary to begin by looking at the powers held by the president and their development over time, then to examine the constitutional mechanisms that determine the process of electing the president and the confusion that surrounds them, before turning attention to the consequences of this presidential vacuum and, finally, discussing proposed exit strategies for this crisis and the extent to which Lebanese civil society is free to contribute to an eventual solution.

1. The president of the republic’s powers

From the time Lebanon got its independence in 1943 up until 1990 when constitutional amendments were passed in the wake of the Taif Agreement, the president enjoyed broad powers that made him the most powerful and influential in the state. These powers were the biggest point of disagreement between Lebanon’s competing political parties both before and after the outbreak of the civil war in 1975. The vast majority of them were a continuation of the powers held by the high commissioner under the Mandate [3]. Even prior to the civil war, all initiatives to redress the imbalances in the political system sought to reduce the presidency’s powers in favour of those exercised by the cabinet and prime minister. Following the Taif Agreement and the signing of the National Accord, which constituted the political basis of the constitutional amendments that were passed in 1990, the Lebanese political system as a whole was altered and the president’s powers drastically reduced.

One of the most significant powers that the president lost in the 1990 amendments was his stewardship of the procedural authority. Prior to the amendments, Article 17 of the constitution placed this authority, “in the charge of the president of the republic, who is responsible for it with the assistance of the ministers, in accordance with the rulings of the constitution.” This text was subsequently altered to state that the procedural authority was “in the charge of the cabinet, which is responsible for it in accordance with the rulings of the constitution.” Article 18, which stated that “the president of the republic and parliament have the right to propose laws,” was amended to read, “parliament and the cabinet have the right to propose laws and no law may be promulgated without being first ratified by parliament.” Similarly, Article 33 stated that the president “may call on parliament to convene extraordinary sessions,” which was amended to: “the president of the republic, with the consent of the prime minister, may call for the convening of extraordinary sessions.”

Furthermore, while the president of the republic once had the power to appoint and fire ministers, choose the prime minister and fill government posts (other than those positions that were legally obliged to receive appointees via some other route), an amended Article 53 stripped him of this power, allowing him to, “nominate a prime minister in consultation with the leader of parliament and, based on the results of binding parliamentary consultations, to officially name him.” The president was also obliged, “to issue, with the agreement of the prime minister, decrees for the formation of government and for firing—or accepting the resignation of—ministers,” (with the agreement of two thirds of the government, in accordance with Article 69), while it was also in his power, “to convene exceptional cabinet meetings whenever he deemed this necessary, with the consent of the prime minister.” [4]

Article 55 of the constitution gave the president the power, “to take the decision (with the consent of cabinet) to dissolve parliament before the end of the parliamentary term,” but this authority was curtailed in the 1990 amendments with the text of Article 65 establishing that it can only be exercised if parliament fails to meet during one normal term or two successive extraordinary terms (each longer than one month), or if the parliament fails to ratify a budget with the aim of paralyzing the government. Furthermore, parliament cannot be dissolved twice for the same reasons.

In sum, it is clear that most of the powers which the Lebanese president once exercised on a unilateral basis are now placed in the charge of the cabinet as a whole. Though he has lost much, the president still retains a central role in the forming governments. Articles 49 and 63 give the president the right to order the review of any law ratified by parliament and to challenge the constitutionality of any law before the Constitutional Council. He may request the cabinet to review previously made decisions and when called for, he may send messages to parliament. The presidency is at its most powerful prior to the formation of a government, since it becomes the sole and final arbiter of, for instance, the composition of government, and the only office with the power to sign the decrees ratifying its formation. The prime minister may propose dozens of different combinations but it is the president who chooses the government he agrees with and who has the power to appoint ministers.

2. Electing the president

The second paragraph of Article 49 sets out the mechanisms for electing the president of the republic: “The president of the republic shall be elected by secret ballot, with a two-thirds majority of deputies in the first round and an absolute majority in subsequent rounds. The president’s term lasts six years and he may only be reelected to office six years after the end of his previous term and no one may be elected to the office of the presidency who does not conform to the requirements for parliamentary membership and is otherwise unfit for candidacy.”

a) Requirements for candidacy:

Unlike parliamentary and municipal elections, the constitution does not define the administrative or legal mechanisms for registering candidacy. Article 49 suggests that the requirements for candidacy are identical to those for parliamentary elections, which means that any citizen who is eligible to stand for parliament may also be elected president (so long as he obtains the necessary majority), without even registering his candidacy. Tradition, and the National Accord, have limited the right to be elected president to members of the Maronite sect even though constitutionally speaking there is nothing to prevent a citizen from another sect being elected.

According to current electoral law, therefore, the requirements for candidacy for president of the republic are as follows:

i) Must be a Lebanese citizen of either sex, over twenty-five years of age.

ii) Must be a Lebanese citizen registered to vote who enjoys all his or her civil and political rights and who is educated.

iii) Must have been a Lebanese citizen for at least ten years.

iv) No serviceman or servicewoman of any rank is eligible, including members of the armed forces, the internal security forces, general security, state security and customs officials.

In 1990, a new paragraph was appended to Article 49, which stipulated the ineligibility of judges, category-1 employees from all public administrations and institutions, and all those covered by the public sector law, for the duration of their employment and for two years following their resignation, the date they actually ceased working, or the date they were retired. [5]

b) The mechanism for electing the president:

Article 49 stipulates that the president shall be elected by secret ballot of parliamentary deputies with a two-thirds majority in the first round of voting and an absolute majority in any subsequent rounds. His term lasts six years and he can only be reelected six years after the end of his previous term. No one can be elected who does not meet the requirements for parliamentary candidacy. It is worth adding here that majorities and proportions are calculated counting active, voting deputies, and not the total number of members as is the case in parliamentary elections.

c) Article 49 does not define what constitutes a quorum, and given the constitution’s silence on this issue some believe that a quorum in a parliamentary session convened to elect a president should be the same as the general rule set out in Article 34: an absolute majority of those members. The text itself states that, “a parliamentary session is not legally binding if not attended by a majority of its constituent members.”

Despite this, it is customary for first-round voting to be delayed until a quorum of two-thirds is reached: when two-thirds of parliamentarians are present, the session is declared open and voting by secret ballot may begin. This custom has always been observed, even during the civil war in 1976 and 1982. On May 5, 1976, the office of parliament and the administration and justice committee declared that Article 49’s requirement that a candidate receive a two-thirds majority in the first round of voting meant that two-thirds of deputies had to be present before voting could begin.

When it comes to subsequent rounds, the lack of any clear constitutional text on the matter brings us back to the same criterion used in the first round. However, while the requirement of a two-thirds majority in the first round means that 86 members must attend for a quorum, the simple majority requirement of subsequent rounds only entails the attendance of 65 deputies. The issue of quorums in later voting rounds has not been sufficiently discussed as part of the political and legal debate, and there are two reasons for this: firstly, the debate has centered on the issue of the first-round quorum, and secondly because when a candidate receives a two-thirds majority in the first round voting usually moves immediately into the next rounds, without delaying the process to a later date.

The history of presidential elections in Lebanon shows that they take place in a single session, either when the president is elected by a majority of two-thirds in the first round, with a two-thirds quorum, or when voting moves immediately into the later rounds without deferring the process to another day. In this respect, the 2014 elections set a precedent, since never before has the speaker of parliament disbanded the electoral session following the first round of voting.

3. The consequences of the presidential vacuum

Prior to 2014 there have been three instances of a presidential vacuum in Lebanon. On September 22, 1952, following the resignation of President Bechara al-Khoury, a military government took control for a few days, headed by Fouad Chehab, who assumed the powers of presidential office until Camille Chamoun was officially elected president. The second vacuum lasted from September 23, 1982 to September 23, 1988. Following the end of Amine Gemayel’s term in office and the failure to elect a replacement, Lebanon suffered a political divide that saw two governments formed simultaneously, the first headed by Michel Aoun and the second by Selim Hoss, which competed for the powers of the presidency. The third period ran from November 23, 2007, to May 25, 2008: when Emile Lahoud’s term came to an end with no successor elected, Prime Minister Fouad Siniora’s government assumed the powers of the presidency until Michel Sleiman was elected.

The current vacuum has raised a number of legitimate concerns about the stability of Lebanon and the continued viability of its political institutions. Historically, such vacuums have been accompanied by severe political polarization and competition over political legitimacy, either between two parallel governments, as happened in 1988, or via the refusal of a significant proportion of political players to acknowledge the legitimacy of the standing government, as happened with Fouad Siniora’s first government. In both instances, it is clear that the failure to fill the highest office of state created a political vacuum that led to the paralysis of the institutions of state and did much to entrench political divisions. It is also clear that such political vacuums are accompanied by serious security-related incidents that have claimed the lives of dozens of citizens in the past and divided the Lebanese population. As political divisions on the local and regional levels deepen , there is concern that this presidential vacuum will lead to a political and security collapse within Lebanon and further delay the coming parliamentary elections, thus rendering the Lebanese political system even more ineffective and undermining the legitimacy of the democratically elected institutions of state.

Article 73 of the constitutions stipulates that between one and two months before the end of a president’s term in office, parliament must convene at the request of the president in order to elect his successor. The article adds that if for any reason parliament is not summonsed by the president it must meet on the tenth day before the end of the president’s term. This means that the constitutionally stipulated timeframe for electing a new president ran from March 25, 2014 to May 25, which was the final day of President Michel Sleiman’s term. Parliament held its first voting session on April 23, 2014, with none of the candidates securing the two-thirds majority needed to declare victory. Summonses for five further electoral sessions were issued, the last of them in June, without the two-thirds quorum being reached. The failure to constitute a quorum—a failure which has plunged Lebanon into this presidential vacuum—is the clearest expression of Lebanon’s deep-rooted political crisis and its impact on the democratic nature of the political process.

When a president’s term ends without a new president having been elected, the presidency’s powers are transferred to the cabinet, in accordance with Article 62. Article 74 gives a list (though not comprehensive) of situations in which this might occur, envisioning the post becoming empty due to the “death of the president, his resignation, or for any other reason.” In other words, following the end of the president’s term in office and in accordance with Article 74, parliament must, “immediately convene a lawful session to elect a successor.”

Faced with the current presidential vacuum, a problem has arisen over parliament’s ability to exercise its legislative powers while the presidential office remains vacant. This constitutional and political quandary has split legal opinion and divided political positions. One perspective is that parliament is unable to exercise its legislative function while the presidency remains vacant, a position based on the second sentence of Article 75, which states that parliament, “must elect the head of state immediately without first engaging in any debate or other activity,” and that the parliament that has been convened since the tenth day prior to the end of Sleiman’s presidential term is in fact an electoral body. Furthermore, Article 74 states that, “in the case of the presidency being vacant for any reason, parliament shall convene immediately to elect a president without requiring an invitation from the speaker, and shall remain convened until such time as a president is elected.” Parliament thus becomes an electoral body, not a legislative one, and is stripped of its legislative function until such time as a president is elected.

So, arguing from Article 74, parliament may not engage in any legislative or other activity so long as it has not been able to elect a president. In other words, if a new president has not been elected, parliament cannot convene a legislative session and must “immediately” convene a session to elect a president. From the time the first parliamentary session is held in a presidential vacuum through to election of a new president, parliament may not engage in any legislative activity and its role is restricted to that of an electoral body. Consequently, any legislative activity that parliament engages in after the presidency falls vacant is vulnerable to being challenged before the Constitutional Council, in accordance with articles 62, 73, 74 and 75 of the constitution.

The other perspective contends that the priority accorded to parliament’s legislative function—while certainly valid in the ten-day period preceding the end of the standing president’s term, if only to encourage deputies to act quickly—cannot be allowed to abrogate the chamber’s legislative powers. Since the presidency’s powers are transferred to cabinet in the event of the top post remaining vacant it makes no sense to talk of a presidential vacuum: it is a vacancy in a position, not more. For those that take this position, the moment the president’s main powers have devolved to the cabinet, parliament can continue its legislative work in tandem with its electoral role.

Moving away from the question of constitutionality, it is obvious that the political debate over this issue has been settled, with legislative sessions being convened even as the office of president remains vacant. On May 24, 2014, his final day as president, Michel Sleiman signed Decree 11996, requesting parliament to convene an extraordinary session between June 2 and October 20, 2014, opening the way for legislative sessions to ratify the budget, draft laws and other laws that had been forwarded for consideration by the assembly. In this way, the president ensured that parliament could continue to perform its legislative function and thus gave political and legal sanctions to parliament to ratify the new parliamentary election law.

In conclusion, it can be said that the political divide has done away with the constitutionally enshrined principle that in the last ten days prior to the end of the president’s term it is parliament’s responsibility to elect a president. What has happened recently is the opposite: everyone in Lebanon is aware that the vacuum is a reality, and the president’s last summons to parliament is treated as open ended because the necessary quorum cannot be secured. With no kind of locally arranged agreement possible, it seems probable that the current situation will pertain until regional solutions can be found.

4. The role of civil society in the period ahead

Lebanon’s current impasse is the product of deepening internal political divisions and rising regional tensions, yet the gradual accumulation of obstacles to progress demonstrates that the crisis is now more profound than a transitory problem centered around one clearly defined set of circumstances. Parliament’s failure to ratify a new parliamentary election law followed by its renewing itself and then its failure to elect a president, suggest that the political polarization that has afflicted Lebanon since 2005 has negatively impacted the country’s political system. Furthermore, the ambiguity of some of the constitution’s articles only complicate the process of finding way out of the deadlock currently being experienced by the procedural and legislative authorities.

It is thus up to civil society and rights groups to work together to renew the popular legitimacy of the political authorities, efforts which should be equally divided between three main issues:

First – The outright rejection of any proposal that seeks to renew parliament, regarding such efforts as illegitimate and unconstitutional. If the parliamentary term comes to end having failed to elect a president, Article 74 stipulates that, “the electoral bodies must be summonsed without delay and the moment its electoral duties have been concluded the assembly may convene in accordance with the law.” This means that parliament cannot renew itself once again, and that the Minister of the Interior must issue an official summons to the electoral bodies three months before the conclusion of this parliament’s already extended term. If the minister does not do so, a complaint can be lodged with the State Consultative Council, forcing the minister to summons the electoral bodies in accordance with Article 74 of the constitution and to respect the current electoral law, especially those articles concerned with the electoral bodies. Second – To exert pressure to hasten the election of a new president and thus extricate Lebanon from the political stalemate that is paralyzing political activity and the provision of services.

Third – To exert pressure to finalize the work of the committees charged with drawing up a new election law and transferring it to the general assembly to be ratified, before the legally prescribed deadline of the end of the current parliamentary term on November 20, 2014.

Finally, despite the fact that the presidencies powers have been drastically curtailed, the failure to elect a new president is a dangerous indicator of the depths of the political crisis in Lebanon. Faced with this political impasse and presidential vacancy, there are real fears that political divisions will deepen further, leading to a situation in which the lack of a head of state will be accommodated and the main political institutions of state further neutered. It must be borne in mind that every delay to the election process creates a context amenable to a regional political solution, which will impact on all outstanding issues foremost among them the parliamentary elections. The challenge facing civil society is to take into account two possible ways forward, both of which are attractive to the majority of the country’s political forces. The first is that some regional solution will be reached that will increase the probability of the already-renewed parliament renewing itself again, and the second is that solutions will be found that lead to the holding of elections based on current electoral law, settling for limited amendments that go no further than redrawing electoral districts. This second solution will not facilitate attempts to introduce reforms into electoral law, but will rather contribute to the paralysis of the Lebanese political system.

 

Footnotes:

1. Lebanon’s pre-independence heads of state (1926-1943): Charles Debbas, Antoine Privat-Aubouard, Habib Pacha Es Saad, Emile Edde, Pierre-Georges Arlabosse, Alfred Georges Naccache, Ayoub Tabet, Petro Trad, Bechara Al Khoury.

2. Lebanese post-independence heads of state (1943-2014): Bechara al-Khoury, Camille Chamoun, Fouad Chehab, Charles Helou, Suleiman Frangieh, Elias Sarkis, Bachir Gemayel, Amine Gemayel, Rene Moawad, Elias Hrawi, Emile Lahoud, Michel Sleiman.

3. Paula Astih’s interview with minister and former MP Edmond Rizk, The president’s powers before and after Taif make him the kingpin of forming a government, in al-Sharq al-Awsat, March 10, 2011

4. Article 69 leaves open the possibility that the president may issue a decree on his own account naming the prime minister, accepting ministerial resignations or firing them, transferring draft laws brought before him from the cabinet to parliament, appointing ambassadors and swearing them in, hosting official functions, handing out medals and decorations, issuing pardons, sending messages to parliament, and raising unscheduled emergency issues with cabinet.

5. The requirements for candidacy have been amended five times in total. The first time was with the renewal of Bechara al-Khoury’s term in office in 1949, which proved so unpopular a move that he was forced to step down in 1952 before his second term was completed. The second occasion was the election of Elias Sarkis prior to the two-month deadline in 1976. The third was with the extension of Elias Hrawi’s term in office in 1995. The fourth was with the election of Emile Lahoud in 1998 and the fifth with the extension of Emile Lahoud’s presidency in 2004. If we add the presidential vacuums of 2008 and 2014 it is clear that there has been little respect shown the constitutional mechanisms for electing the president over the last twenty years.

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