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Seminar organized in collaboration with the Konrad Adenauer Foundation: “Extending the Power of the Constitutional Council - Catching up with the Global and Arab Changes in Constitutional Justice”, Beirut Lebanon
At a time when Lebanon suffers total stagnation, the Constitutional Council strives to safeguard the Lebanese heritage of legality and constitutionalism. It seeks to strengthen the rule of law in order to keep up with international changes in law and constitutional justice as it is the case in most Arab States today.
The workshop, organized by the Council under the supervision of its President Issam Sleiman, in partnership with the Konrad Adenauer Foundation, for “The project of extending the power of the Constitutional Council”, gathered, besides the members of the council, representatives of the Konrad Adenauer Foundation, previous ministers, MPs, magistrates and scholars.
The statutes of the Constitutional council, “outcome of hard work” (Ibrahim Najjar and Samir El-Jisr), were debated in view of a reform on the basis of the experience gained. The reforms “drawn from previous experience are those meant to succeed” (Fayiz Haj-Chahine). The workshop reflects “a symbolic cultural resistance” (Lara Karam Boustany), “a thought designed to address the culture of rights” (Antonio Al-Hachem) and “an enlightened doctrinal perspective” (Khaled Kabbani).
The opening statements reveal the importance of restoring and consolidating the rule of law in Lebanon “that should spread through the whole region” (Tarek Ziadé) and build a constitutional structure to deal with excesses and obstacles often voluntarily created” (Peter Remmele), based certainly on the Lebanese Constitutional Council experience all over twenty years. Its power is confined to the minimum, not only concerning constitutional justice in general, but in comparison to Arab and African states as well (Issam Sleiman). The works focused on four main priorities.
1.Right to appeal to the Constitutional Council for Constitution interpretation: The interventions and debates in view of extending the power of the Constitutional Council in order to interpret the Constitution, as provided in the Taef National Agreement, stressed on the need to appeal on the basis of the experience and problematic of the effective implementation of the interpretation. At the constitutional amendment of 1990, the appeal for interpretation was not taken into account by the Parliament (Samir el-Jisr). Hence two perspectives could be studied:
a. The facts’ impacts: The facts, before and after the Taef accord, reveal the need to appeal in order to interpret the constitution and the crises linked to the interpretation (Jean Fahd).
Also, the specificity of the Lebanese Constitution (National Pact, coexistence, parity, participation, positive discrimination…) implies views that go beyond a rigid conventional legal perspective.
In practice, the Lebanese often face, not divergent interpretations, “but two constitutions, one national and another de facto and effectively implemented. It is where the number of constitutional experts exceeds the experts of the traffic regulations!” (Ghaleb Mahmasani), “leading to traffic congestion instead of facilitating it” (Fayiz Haj-Chahine).
There has been no encroachment on the powers of parliament, since the Parliament has the right to appeal before the constitutional council. Such an interpretation is also closer to the reality of the fundamental text than of comments that emanate from cyclical political considerations. The appeal for the interpretation of the constitution enhances the citizen’s constitutional culture on daily basis (Chebli Mallat)
b. Institutionalize an old practice? What to do to make sure that the constitutional interpretation is implemented, that it is not seen as interference in the relations between the powers, or the Council “does not add to the many experts of the traffic regulations?” (Ghassan Moukheiber). It must be mentioned that the Bureau of the Parliament or the speaker used to consult eminent experts of constitutional law (Ghassan Moukheiber). Warning against risks (Amine Saliba) to safeguard the credibility of the Constitutional Council and against risks rising from compromises among the elites and unbridled comments (Mireille Najm Chukrallah) should not lead to an absolute refusal of the appeal for interpretation. It is one of two things, institutionalizing the appeal to the constitutional council or recognizing the appeal process for interpretation, as it is the case in some countries, such as Jordan, Kuwait, Sudan…, avoiding “compromises at the expense of the Constitution, paralysis of institutions, and extra-institutional and controversial debates.” (Issam Sleiman).
2. Acting on its own initiative: the fact that the Council cannot act on its own initiative regarding some laws, considered fundamental, limited the Council’s power (Antoine Khair).
a. Result of an evolution: The legal and constitutional development in the world tends to constitutionalize the body of laws requiring that the moral and constitutional rule feed the whole system of law, particularly through appeals that serve the Constitution, and not only the law, especially that the Preamble of the Constitution reflects the national identity that must be safeguarded in the interest of the people and the country: There is no control of parliament here, but the constitutionality of the laws, without looking for the winner party, for the only winner is the constitution.” (Fayiz Haj-Chahine) Thus, the development of the law in the region aims at rationalizing the constitutional practice through preventive monitoring.
b. Organic laws: the Lebanese Constitution did not explicitly distinguish between laws (Paul Morcos). The article 65 of the Constitution that requires the approval of two thirds of the council of ministers for 14 basic issues (Antonio Abou Kasm) reveals the difference between its provisions and the Preamble of the Constitution. Besides, “several basic laws cannot pass without preventive monitoring.” (Samir El-Jisr) The laws that require self-referral “without extending the scope of application to texts related to freedoms in general must be determined, without copying other countries.” (Ghassan Moukhaiber)
3. The appeal by way of an exception: This perspective, which is a guarantee in most constitutional bodies, even in most Arab Constitutional Councils and Courts, does not exist in Lebanon. Thus, the Lebanese legislation, previous to the constitutional amendments of 1990, is not included in the control of constitutionality. Preliminary ruling on constitutionality, applied in France since March 10, 2010, encourages us to think about its procedures and effectiveness. Two perspectives result from these interventions and debates.
a. « Careful » issue of constitutionality: Challenging a law for unconstitutionality during a trial leads to an active approach of the law that joins several Arab states: the Constitutional Council will be called upon to decide on sensitive issues, such as personal status law, the status of women… and other important questions.” (Lara Karam Boustany) « Will the Lebanese constitutional judge be thrown then in the political arena? » (Chebli Mallat) The Court of Cassation has often intervened in reconciling between individual rights and rights of the religious communities (Tarek Ziadeh). “The logic of getting around the rules should be avoided in sensitive issues, helping provide a legitimacy cover.” (Lara Karam Boustany) What are the procedural guarantees in case of appeal by way of an exception? “Negative judgments of constitutional courts must be avoided in the tribunals’ screening” (Lara Karam Boustany). As the case in France, very limited deadlines must be set (Salah Moukheiber), in order to avoid congestion in the courts with dilatory procedural means (Tarek Ziadé). We should refer to the Amparo procedure or the direct appeal by the citizen implemented in Spain where among 7000 cases, only 80 were selected (Chebli Mallat). The preliminary constitutional ruling that is applied in France should be adapted to Lebanon for “a careful constitutional ruling” (Lara Karam Boustany)
b. Encouraging the deprived and marginalized citizen: The problem of appealing to the constitutional council by professional bodies, such as associations and syndicates, with eventually the support of some deputies is raised (Antonio al-Hachem). The aim is to look after the « deprived and marginalized citizen » (ChebliMallat) « who sees justice as the only way to protect him » (Khaled Kabbani), notably with globalization where the four powers of politics, capital, intelligentzia, and media are concentrated in one block.
4. Appointment of members, quorum and majority: the participants refer to the benefits of the actual system of selecting the ten members of the Constitutional Council (Ahmad Takieddine), with diversity in the composition, which is seen as a factor of trust. To deal with the dramatization of ethnic affiliation, often exaggerated by the media, that has no impact on the effective behavior during debates and decision-making, we should take two perspectives into consideration:
a. The Appointment by the Head of State: the new article 49 of the Constitution provides the Head of State with an important role of guardian who shall safeguard the Constitution. We suggest that all the members of the Constitutional Council should be appointed by the Head of State (Khaled Kabbani). We also suggest that the Council should not be composed of jurists only (Antonio al-Hachem). We notice as well that the principle of separation of powers involves new alternatives to guarantee the rights and the citizens’ participation (WassimMansouri).
b. Preventing hindrance and indecision: the root of the problem lay in the independence of the constitutional judge who could never abandon or block the proceedings (Khaled Kabbani) and who, according to the magistrates Charter of Ethics, must be courageous in the decisions (Tarek Ziadé). The qualified majority in any decision provides an excess of legitimacy and confidence (Antonio al-Hachem). We also suggest, on the one hand, the designation of alternates in case of justified absence due to force majeure, and the publication of a full record of proceedings showing several points of view in case of tie vote (Zaghloul Attié). It is the regular parliament work and the extension of the power of the Constitutional council that increase the responsibilities of the Council (Salah Moukheiber).
A comparative table of fifteen Constitutional Courts and Councils in the Arab World (Mukles Hussein, Iraqi Ph.d. student, USJ) reveals the limits of the power of the Lebanese Constitutional Council. There is a fundamental need to renew the discussion with the Arab revolutions (Chebli Mallat), with a real application of the principle of the supremacy of the Constitution (Issam Sleiman).
What to do? We should consider a follow-up mechanism (Ghassan Moukheiber), as well as civil and scientific pressure frameworks (Paul Morcos). This project was prepared by the President of the Constitutional Council. The proceedings of the seminar that provide essential working material will be published at the end of 2016.