REVISITING THE PATH OF LEBANON OVER THE PAST 100 YEARS Analysis of Different Constitutional Aspects of the State REVISITING THE PATH OF LEBANON OVER THE PAST 100 YEARS This book is licensed under Creative Commons Attribution - Non Commercia - Share Alike 4.0 International (CC BY-NC-SA 4.0). Please be notified that the book has been released under a Creative Commons license to allow optimal accessibility while preserving attribution to the contributors and the editor’s work, as long as it is not used for commercial purposes. We would like to provide equal opportunities for anyone who wants to disseminate, write and search on the topic. You can share and adapt the content by remixing, transforming, building and redistributing the material in any medium or format as long as you attribute it and properly credit the authors under the same license as the original. For more information, a copy of this license is available at URL: https://creativecommons.org/licenses/by- nc-sa/4.0/ REVISITING THE PATH OF For more information, a copy of this license is available at URL: https:// creativecommons.org/licenses/by-sa/4.0/ LEBANON OVER THE PAST 100 YEARS Analysis of Different Constitutional Aspects of the State REVISITING THE PATH OF LEBANON OVER THE PAST 100 YEARS Notre Dame University-Louaize NDU Press© First published: 2020, Lebanon ISBN 978-614-475-009-4 Zouk, Kesrwan, P.O.Box 72 Cover design: Department of Creative Design www.ndu.edu.lb | [email protected] P.O. Box: 72, Zouk, Keserwan Phone: +961 9 208 994/6 REVISITING THE PATH OF LEBANON OVER THE PAST 100 YEARS – ANALYSIS OF DIFFERENT CONSTITUTIONAL ASPECTS OF THE STATE ©2020Notre Dame University - Louaize (NDU) and Rule of Law Programme Middle East and North Africa, Konrad-Adenauer-Stiftung e.V. All Rights Reserved NOTRE DAME UNIVERSITY Notre Dame University - Louaize (NDU) is a private, Lebanese non-profit Catholic institution of higher education which adopts the American system of education. As part of its mission NDU promotes diversity, respect for human dignity and rights, and concern for the common good. Its profound aspiration is to prepare its students to be future leaders who can exercise reason upon knowledge and shape a world of truth, justice, love, and freedom. THE KONRAD-ADENAUER-STIFTUNG The Konrad-Adenauer-Stiftung (KAS) is a German state-funded foundation, carrying the name of Konrad Adenauer, Germany’s first Chancellor after World War II. It was formed in 1955 as an integral part of Germany’s efforts after the war to educate its citizens in democratic principles and procedures, as well as civic and political participation with the aim of promoting peace, freedom and justice. Today the Konrad-Adenauer-Stiftung with more than 107 offices abroad and projects in over 120 countries, fosters these same values worldwide. Promoting the rule of law is one of the top priorities within the work of the Konrad-Adenauer-Stiftung. The Rule of Law Programme Middle East / North Africa forms one of five regional Rule of Law programmes that support the continual exchange of experience and information between representatives of governmental institutions, 5 Revisiting the Path of Lebanon over the Past 100 Years legal scholars and practitioners, and civil society, on a peer-to peer TABLE OF CONTENTS basis. The objective of the Rule of Law Programme Middle East / North Africa is to consolidate rule of law structures and the relevant institutional elements, such as effective constitutional courts and review procedures, to foster the separation of powers, in particular Preliminary Note 9 a professional, independent and efficient judiciary and to protect the fundamental rights and liberties. Forewords 11 I. The End of an Era; Beginning of a New One 11 Cedar Mansour, Dean Faculty of Law and Political Science (FLPS), NDU II. The Centennial: Reflections on State-Building and Constitutional Developments in Lebanon 12 Rule of Law Programme Middle East and North Africa Abstracts 15 Confessionalism: A Legacy of History 22 Dany Ghsoub, Chairperson | Assistant Professor, Government and International Relations - FLPS, NDU Lebanon’s Consociational Democracy: A Blessing or a Curse 106 Elie El Hindi, Associate Professor, Government and International Relations - FLPS, NDU The Judicial Authority in Lebanon 176 Chady Al Hajal - FLPS, NDU The Lebanese Democracy 194 Georges Sharaf - FLPS, NDU 7 PRELIMINARY NOTE Throughout the 100 years Lebanon suffered from perennial instability and recurrent conflict. The vagueness of the constitution enacted in 1926, based on the French 3rd republic constitution, did not clearly address a lot of the Lebanese issues and is not considered the reflection of a genuine Lebanese social contract. The National Pact that came later in 1943 was perceived as the aspired social contract and was used as the main framework of Lebanese politics, with a value higher than the constitution attributed to. After the several failures of the National Pact leading to consecutive conflicts and a long civil war, a new constitution was enacted in 1989 moving Lebanon into the 2nd republic. This new constitution re-instated some form of national pact but failed to bring stability notably upon the termination of the Syrian control of Lebanon in 2005. Lebanon today is at a cross-road with several constitutional amendments suggested. The current publication comprising of two English and two Arabic papers, is a reflection on traditional constitutional and political practices while rethinking new challenges to the rule of law and the increasing importance at different levels. The objective of the series of research papers presented in this publication is to analyses structures and processes in state-building, equal rights and political participation, scrutinizing ideas versus reality over the past decades by bringing together academics to present their topic-related papers brought for discussion in four roundtables by a quality participation and feedback from the intellectual academic community. 9 FOREWORDS The End of an Era; Beginning of a New One 2020 marks the centennial of Greater Lebanon and paradoxically Lebanon is living one of its worst eras. Decades of mismanagement, corruption, nepotism, sectarianism, clientelism, spoils … have resulted in a fatal combination that led the country into the Abyss. Abyssus Abyssum Invocat, deep calls unto deep. It is sad to recognize that the first century of greater Lebanon ended in a failed state, a total collapse on so many different levels. “You have the government you deserve,” they say. It is unfortunately true. Despite the National Pact of 1943 where Lebanon was supposed to take equal distance from the East and from the West, we were gradually enmeshed in regional and international conflicts. We have actively prioritized other interests over the National interest, and even in priorities, we were divided. Failing to recognize our active or passive responsibility in this collapse will leave us unable to properly address the situation. We have also failed in building solid institutions able to process pressing demands at all levels: social, economic, political, justice, security, etc. this failure led to a growing personalization of the power rather than its institutionalization. Diversity (mainly confessional) in this context became a challenge instead of quality. Rather than building trust between the different sectarian groups, regional political confessional leaders have focused on suspicion to serve their own interests by presenting themselves as the saviors. They have perverted the role of Public administration, replaced meritocracy by spoils, so much so that institutions became counterproductive. The ratio per capita of civil servants is one of the highest in the world with the worst public service. This Patron/Client relationship has been perpetuated for decades emptying gradually the national treasury and reserve, which resulted in the collapse of the whole system. 11 Revisiting the Path of Lebanon over the Past 100 Years Awareness started to emerge and grow however and a hope for The Lebanese State, with its multi-confessional and pluralistic a better Lebanon for the second centennial will come from below. society looks back at a rich and diverse history that has been shaped Pressing demands of accountability, transparency, justice etc. are by alternating periods of political stability and turmoil, all too often spreading more and more. building a fertile arena for internal strife and external interventions. Lebanon’s Constitution of 1926, although amended on several There is finally a dominant understanding that for a new Lebanon occasions, is still in force today. Subsequent constitutional to emerge the only rule that should apply is the rule of Law. amendments and agreements, such as the National Pact, the Taef and Doha agreements only reinforced and expanded the the most Cedar Mansour, distinctive feature of the Lebanese state: an overall framework of Dean of the Faculty of Law and Political Science, NDU power-sharing between the different religious communities. While Lebanon is often considered a model of plural democracy The Centennial: Reflections on State-Building and in the Middle East assuring equal political representation in a Constitutional Developments in Lebanon multi-ethnic and pluri-religious society through its confessional framework, others argue that the consociational arrangements have The rule of law and constitution building are two concepts at led to institutional instability, clientelism, and state frailty. the core