Caretaking: From Constitutional Obligation to Political Arbitrariness (Executive Summary)

2022-08-08    |   

Caretaking: From Constitutional Obligation to Political Arbitrariness (Executive Summary)

Since 2005, Lebanon has been witnessing continuous political crises directly caused by the zuama [elite political leaders] system’s domination over the various state organs and the lack of institutional logic to resolve these disputes in a manner that keeps the public administrations functioning properly. When Syrian Tutelage ended, the Lebanese political system lost the party that was securing the power-preserving interests of its key figures by ensuring balance among the zuama and perpetuating their network of clientelist relationships based on divvying-up public wealth and state capacities.


However, the instability of the political system after 2005 went beyond the repeated vacancy of the President’s Office. A more dangerous manifestation that struck the core of the executive authority was the phenomenon of resigned governments continuing to serve in a caretaker capacity for very long periods. Legally and in practice, caretaking constricts the powers of government, depriving it of its ability to set state policy in all areas. This restriction is based on the Constitution itself. Hence, unlike the presidential vacuum, which temporarily strengthens the powers of the Council of Ministers, caretaking limits the scope of the executive authority’s intervention and thereby impacts the work of all state administrations and agencies as they are subordinate to the Council of Ministers.


After the adoption of the 1926 Constitution, governments in Lebanon were formed quickly, so caretaking periods remained relatively short. The only exceptions were the major crises that the political system began suffering at the end of the 1960s. The most important of these crises may be the resignation of Prime Minister Rashid Karami’s government on 25 April 1969 due to disagreement over the armed Palestinian presence. In that instance, caretaking continued until 25 November 1969, when Karami managed to form a new government after the famous Cairo Agreement, which governs the armed activity of the Palestinian fedayeen.


Lebanon would not witness similar crises until after 2005. From then on, such crises – albeit longer-lasting and with more severe repercussions on state life – would steadily recur. Between 1990 and 2005, government formation took between two days (Selim Hoss’ government in 1998) and 14 days (Rafic Hariri’s last government under President Elias Hrawi in 1996). After 2005, the process began taking many months. The caretaker periods would last even longer because, under the current Constitution, caretaking extends until the new government gains Parliament’s confidence.


Paragraph 2 of Article 64 of the Constitution stipulates that, “The government shall not exercise its powers before it gains confidence, nor after it has resigned or is deemed resigned, except in the narrow sense of caretaking”. This text was introduced in 1990 by the Taif Agreement amendments.


Although the caretaking concept was previously absent from the Constitution, the Lebanese legal system was already familiar with it. Before 1990, the administrative judiciary enshrined the principle in multiple decisions. These decisions were influenced by the French during the Third Republic (1875-1940) and Fourth Republic (1946-1958), especially because the Lebanese Constitution, passed in 1926, adopts the norms of the parliamentary system prevailing in France at the time. Another crucial difference between the Constitution’s pre- and post-1990 text also lies in Paragraph 2 of Article 64, which requires the government to “present its ministerial program to Parliament to gain confidence within 30 days of the issuance of its formation decree”. Before 1990, governments were not obligated to seek Parliament’s confidence within a fixed timeframe following their formation, though they customarily did so within a short period.


Limiting the functions of a resigned government to caretaking is a solution in line with the constitutional logic of parliamentary systems wherein executive power is effectively embodied in the Council of Ministers. Lebanon follows the parliamentary system based on the cornerstone of executive branch accountability to Parliament. In other words, to exercise its powers, the government must gain the legislative authority’s confidence. As this confidence is not confined to the moment that it is granted but should extend throughout the life of the government, it is obvious that the government’s ability to exercise its power lasts only as long as its accountability to Parliament. Hence, the resignation of the government – or a situation wherein the government is deemed resigned – terminates this accountability and thereby places the government outside the political oversight of the legislative authority, which subsequently loses its ability to withdraw confidence. As power is only granted to a body subject to accountability and withdrawing confidence is the mechanism adopted in constitutional law to embody this accountability, limiting the powers of a resigned government is a logical consequence of the system’s parliamentary nature. Ultimately, caretaking is merely the limitation of the executive authority’s powers throughout the period in which it is not under parliament oversight.


From another angle, caretaking is an imperative because restricting the government’s power to a narrow scope should not harm the state’s interest by shutting down institutions and threatening the continuity of public service. Therefore, the government’s exercise of some albeit limited powers after its resignation is necessary as it is illogical to accept an absolute vacuum in power until a new government is formed.


Undoubtedly, the government’s transformation into a caretaker government following its resignation impacts the work of the executive authority, embodied in the Council of Ministers, as its powers become very restricted. In Lebanon, this restriction is interpreted as the Council of Ministers losing the ability to convene and exercise its powers defined in the Constitution and ordinary laws.


After 2005, Lebanon entered a phase of open-ended political crises that began recurring upon every constitutionally stipulated milestone. These crises include the very long period taken to form a new government, which would inevitably influence the concept of caretaking.


Caretaking for a long period creates a legal situation that differs, in its effects, from caretaking limited to a trivial period. The decisions the resigned government must take increase over time and become more pressing as the problems the state must confront escalate, especially when society is experiencing stifling socioeconomic crises.


The disagreement over the interpretation of caretaking was particularly acute between President Michel Aoun and Caretaker Prime Minister Hassan Diab. The latter insisted that the Council of Ministers cannot convene during the caretaker period even though the former repeatedly demanded that it do so to make the appropriate decisions.


Note that the criterion adopted to distinguish between actions that fall within caretaking and those that fall outside it is merely procedural. Decisions that require approval by the Council of Ministers are considered outside the scope of caretaking, while those promulgated by the president via ordinary decrees without passing through the Council of Ministers are considered to fall within it.


This absolute procedural criterion is undoubtedly unsound as caretaking concerns the subject matter and necessity of the decision to be made, not the means of adopting it and whether they involve the Council of Ministers. Regular decrees that do not require approval by the Council of Ministers could fall within the scope of “dispositive actions” [‘amal tasarrufiyya, i.e. actions that further its political vision] that should not be taken during caretaking, while decrees that must be adopted in the Council of Ministers could fall within the scope of regular actions that may be taken.


The most significant development in the concept of caretaking was introduced by Circular no. 10 of 2013, issued by Prime Minister Najib Mikati on 19 April 2013 after he resigned. This circular created a mechanism with no constitutional basis. It asked all ministers, “in the case that an administrative decision that falls within the scope of dispositive actions needs to be taken during the caretaker period, to submit a draft to the Prime Minister’s Office in order to obtain the exceptional approval of His Excellency the President of the Republic and His Magnificence the Prime Minister”. Thereafter, every prime minister issued a similar circular after his government resigned or was deemed resigned.


This circular raises several constitutional and political issues concerning the prime minister’s power to adopt this kind of peremptory circular and the constitutionality of exceptional approvals, which effectively transfers the powers of the Council of Ministers to the president and prime minister. This novel mechanism opens the door wide for all forms of discretion. Consequently, caretaking transforms from a constitutional concept subject to the administrative judiciary’s oversight into a political concept defined by the ruling authority, which uses it as the ideal pretext for furthering its own interests in accordance with the fluctuating balance between its key figures.


After Hassan Diab’s government resigned, dozens of decrees and decisions beyond the scope of caretaking were issued via the exceptional approval mechanism. The most prominent are:


  • Decree no. 6881 of 18 August 2020, which extended the state of emergency in Beirut without the approval of two thirds of the ministers. This approval is required because states of emergency are among the “fundamental matters” mentioned in the last paragraph of Article 65 of the Constitution.
  • Decree no. 6929 of 3 September 2020 and Decree no. 7315 of 31 December 2020, which extended the general mobilization and again lacked the constitutionally stipulated approval of the Council of Ministers, and the numerous subsequent lockdown and reopening decisions issued via administrative memorandums by the general secretary of the Council of Ministers based on the same exceptional approval mechanism.
  • The communique that the general secretary of the Council of Ministers issued on 10 September 2020, based on an exceptional approval, to postpone by-elections. This constitutes a blatant breach of Article 41 of the Constitution, which requires that elections be held within two months to fill any vacant parliamentary seat.


These exceptional approvals are liberally used to restrict citizens’ freedoms via the state of emergency and prevent them from exercising their political rights by postponing by-elections that the authority wants to avoid holding because of growing opposition to it. Yet this mechanism is also obstructed on various constitutional grounds – particularly caretaking – whenever it serves the political interests of the president, the prime minister, and the zuama system that stands behind them. The most prominent examples include:


  • The president’s refusal on 5 October 2020 to grant exceptional approval and sign the decree dismissing General Director of Customs Badri Daher on the pretext that this requires the Council of Ministers’ approval.
  • The prime minister’s refusal on 26 May 2021 to sign the decree appointing the members of the Supreme Judicial Council (SJC) even though the minister of justice was insisting on it and had prepared the draft. The SJC’s non-ex officio members are appointed via an ordinary decree that does not need to be adopted in the Council of Ministers in the first place.


Thus, the exceptional approval mechanism has become the ideal pretext to justify any arbitrary decision that dons the guise of caretaking to achieve political ends. From the President Michel Aoun’s refusal to dismiss an official close to his political faction to the prime minister’s refusal to sign the decree appointing the SJC for fear of angering Future Movement leader Saad Hariri (who sees the suspension of public organs as a means of pressuring the president), a double standard dominates all matters related to caretaking. Legal logic transforms from a means of protecting public interest and defending society into a pretext for protecting the ruling authority’s interests at the expense of the state institutions.


These circulars, which lie at the bottom of the hierarchy of legal texts, create an unusual mechanism for decision-making not stipulated in the Constitution. In practice, the need for the ministers to obtain exceptional approval from the president and prime minister for dispositive actions transfers the powers of not only the ministers but also the Council of Ministers to the president and prime minister in the absence of any constitutional text to this effect. Administrative Court jurisprudence in Lebanon has held that an exceptional circumstance that warrants dispositive actions allows the competent party to recover the portion of its powers necessary to address the emergency. In other words, in this case, the relevant minister or the resigned Council of Ministers may make the appropriate decision.


The unconstitutionality of the exceptional approval mechanism has been confirmed in three judicial documents:


  • The report of State Council rapporteur Michel Mansour on 26 May 2021 in the case that the Legal Agenda filed against Decree no. 6881 of 18 August 2020, which extended the state of emergency, and Council of Ministers General Secretary Memorandum no. 1955 of 2020, which charged the army with certain additional functions.
  • The two decisions that the Court of Accounts issued on 15 July 2021 and 15 November 2021 in the case concerning the extension of the contract for operating Beirut Airport’s aircraft refueling facilities via the exceptional approval mechanism. The Court of Accounts held that “exceptional approval granted by the president and prime minister – even though it was mentioned in Prime Ministerial Circular no. 27 of 11 August 2021 – is irrelevant as it has no legal value in the absence of any legal text governing the conditions for granting it and explaining its legal effects”.


In conclusion, it is evident to us that when the government’s accountability to Parliament ends, the government loses its political legitimacy to make decisions based on its authority to govern but continues to perform its duties in all matters related to its administrative function, which includes ongoing business that concerns the public. This raises the issue of determining the scope of caretaking as the same party continues to make decisions, albeit having lost its ruling function while retaining its administrative function. In reality, caretaking is not an exceptional phase but the normal situation, whereas political decisions are exceptional by nature as they do not concern people’s daily lives and ordinary interests, and they require political legitimacy to determine the nation’s major choices.


In Lebanon today, caretaking no longer means the termination of the government’s accountability to Parliament via its resignation or the withdrawal of confidence from it. In reality, caretaking has become tantamount to the government’s loss of the confidence in the zuama, who decide to restrict it to its administrative function and withdraw political decision-making from it whenever their power-preserving interests are in danger. The long caretaking periods that Lebanon began witnessing after 2005 reflect the system’s true nature. It is a system based on a balance among zuama that claim to represent their sects, such that they monopolize political decision-making, while the constitutional institutions – such as Parliament and Council of Ministers – become hollow structures whose only function is to consecrate the zuama’s de facto power by granting their consensus the legal form appropriate for a modern state.


Moreover, the administrative function that the public authorities must constantly perform is now also in danger because of the socioeconomic collapse that Lebanon is experiencing, including the threat to citizens’ health and food security, their job losses, their lost purchasing power due to the lira’s devaluation, and escalating immobility due to the obscene rise in fuel prices. The collapse of the state’s administrative function means that caretaking of ongoing business is now under serious threat while the function of governing continues in the hands of the zuama system. In other words, the state – with its institutions and agencies – is the direct victim of the zuama and their seizure of the governing function. Hence, the state can only be saved by returning this function to the constitutional institutions. Only then will caretaking return to its sound constitutional interpretation as an institutional means of performing the administrative function until political legitimacy is reconstituted in order to grant the governing function to a democratic authority that follows the rule of law rather than interest-driven quota-sharing among de facto zuama.


This article is an edited translation from Arabic.

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