Recently, Article 95 of the Constitution has emerged in Lebanon’s public discourse, particularly with regard to its prohibition of the allocation of any position to any sect. While this article calls for the abolishment of political and administrative sectarian quotas following preparatory steps that could span a long time, its second paragraph (§ B) immediately and categorically prohibits allocating any specific position to any sect. While this article has recently come up in the bickering over the judicial personnel charts and financial and banking appointments, successfully enforcing its faithful application is a necessary steppingstone for freeing ourselves from quota-sharing and the clientelism and corruption it entails, and would pave the way for building a just and capable democratic state.
How Did Article 95 of the Constitution Recently Come to the Fore?
As previously explained, this article recently emerged in the context of the recent appointments, which are the first to occur since the October 17 revolution. These appointments pertained to the judiciary, finance, and banking.
Regarding the judicial personnel charts, The Legal Agenda was the first to draw attention to the need for them to comply with the Constitution, particularly Article 95 § B. This we did before the Supreme Judicial Council (SJC) publicized the draft for these appointments. We later condemned the publicized draft’s violation of this article – a violation explicitly acknowledged in its mandating reasons section and the media statements ascribed to SJC president Suhail Abboud. The Legal Agenda’s sensitivity to this issue stems from the conclusions it reached in its study of sectarian considerations in previous personnel chart drafts, which proved that the sectarianization of judicial positions is the primary means for turning them from positions from which to do justice into positions from which to exercise influence. The best evidence of this is that most of the important positions allocated to a given sect fall within the area of influence of that sect’s leader.
While Minister of Justice Marie-Claude Najm then emphasized – in the first official stance of its kind in the judicial context – the need to comply with this article in her comments to the SJC, the SJC returned the draft to the Ministry of Justice unamended. Although we were not able to view the SJC’s justification for rejecting the comments, some newspapers quoted certain SJC members as saying that the demand for compliance with Article 95 is unrealistic, unimplementable idealism. So far, we do not know what the minister of justice’s stance will be: will she sign the draft even though it is marred by flagrant constitutional violations on the basis that her power is now restricted by Article 5 of the Judicial Judiciary Organization Law? Or will she reject it on the basis that the Constitution remains supreme and, according to her statement, she may not sign a draft containing flagrant constitutional violations, even if her power to contest the suitability of the nominations in it is restricted? While the limited power does prevent her from debating the names at this stage, the ability to refuse to sign based on the draft’s flagrant unconstitutionality remains a debatable legal and constitutional issue. Whatever the case, and whatever her final position in this regard may be, the personnel charts draft is in fact unconstitutional, and if it is issued, anyone with standing can appeal it for conflicting with the paramount rule that must be applied, namely Article 95 § B of the Constitution.
As for the financial and banking appointments intended to fill 13 positions (most importantly the positions in the central bank’s central office and the Banking Control Commission of Lebanon and the position of general director of the Ministry of Economy), the sectarianization of these positions seems to have become normalized. The newspapers compared the candidates of each sect without any mention of the unconstitutionality of this approach. The ubiquity of this discourse was only broken by the statement issued by three organizations – namely Kulluna Irada, The Legal Agenda, and the Lebanese Association for Taxpayers' Rights – mentioning the criteria and controls required by Article 95 of the Constitution, especially the impermissibility of allocating any position to a specific sect.
Why is Article 95’s Application an Essential Steppingstone for Administrative and Financial Reform?
In this regard, we will review the main dangers emerging from the sectarianization of judicial and administrative positions in violation of Article 95 in order to raise awareness of the importance of confronting this violation. The issue at hand is not a matter of intellectual indulgence or puritanical adherence to constitutional principles and rules. Rather, it is a fundamental condition for stopping the disintegration of the state and its conversion into a collection of fiefdoms. The main dangers include:
Giving Sectarian Affiliation Precedence of Competence
The first danger emerging from the sectarianization of positions is the prioritization of sectarian affiliation over competence, which is especially alarming in the positions that require in-depth and rare experience and specialization. The best example may be the presidency of the Commercial Chamber in the Court of Cassation, whose president must have a broad knowledge of commercial law that allows the chamber to standardize jurisprudence and adapt it to rapid social and technical developments. However, because of the sectarianization of the court’s chamber presidencies, the presidency of this chamber happened to become part of a quota for the Druze sect to the extent that it has been dubbed “the Druze chamber”. Hence, in recent years, every time this presidency became vacant a Druze judge had to be appointed, and judges from other sects were denied the ability to assume it regardless of how much they deepened their experience and knowledge in that area. Moreover, the personnel charts have often ultimately appointed a Druze judge with no experience in commercial law (just as occurred in the personnel charts currently under dispute). In this sense, the violation of the non-sectarianization rule seems to have directly deprived the entire judicial system of the possibility of standardizing and developing the principles of commercial law, in addition to placing a ceiling on the aspirations of judges from other sects. If you are Catholic, your aspirations must be limited to presiding over a criminal chamber in the Court of Cassation, even if your specialization is civil law. If you are Orthodox, the limit is the presidency of a civil chamber in the Court of Cassation, even if your specialization is criminal law. And there are many more examples that continue to apply to all levels of the judiciary.
Behind-the-Scenes Appointments with No Transparency
The second danger stemming from the sectarianization of positions is that it obstructs the adoption of transparent mechanisms, such as inviting people who meet certain requirements to submit their candidacies and partake in open competitions, as specifying one sect in such invitations would be at odds with the concept of a state. Hence, the hypocrisy in this area (i.e. committing to appoint persons from a particular sect without openly professing to do so, at least in official discourse) precludes good practices and subsequently ensures that the appointments occur behind the scenes. Instead of opening the door for candidatures for the judicial positions and calling the candidates to competition, the SJC merely interviewed a list of people drawn up for each position at its members’ discretion. Accordingly, it interviewed whomever it liked and declined to interview whomever it disliked.
The same occurred in the financial and banking appointments. The political forces participating in government drew up their lists without opening the door for people wanting to submit their candidatures to do so.
Nominations via Quota-Sharing
The third and most obvious danger consists of entitling the influential political forces in each sect to decide between the candidatures for the positions allocated to it. Naturally, if there are multiple influential forces within a particular sect, they must agree on a quota for each of them within the sect’s total quota. This explains the fervent debate between the Free Patriotic Movement and the Marada Movement over the banking and financial positions traditionally allocated to Christians. What’s worse, as Najm mentioned in her televised statement on LBC on 2 April 2020, these forces act as though only they may discuss and decide among the candidates belonging to their sect and nobody else has the right to make any comment or comparison in this regard.
Hence, rather than the partnership in government leading to the imposition of objective criteria over appointments that occur via transparent mechanisms, people affiliated with one group or another are ultimately appointed based on quota-sharing. This negatively affects the neutrality and unity of the entire state.
Neutralizing the Rotation Principle
The fourth danger stemming from the sectarianization of positions consists of their transformation into permanent emirates controlled by the political forces entitled to fill them. Whenever there is a vacancy or change in a given position, the force that fills it is the same. Even if the people occupying the positions change, the principle of rotation in these positions is effectively sidelined as they remain tied to the same political force. Of course, this bestows upon the people occupying these positions and the forces supporting them a kind of illegitimate assurance of an absence of accountability and paves the way for more grave violations in the form of influence peddling.
Turning Public Offices into Privileges
Given the above, the sectarianization of positions often leads to the disintegration of the state into positions of influence or power. Consequently, the people occupying these positions prioritize the interests of the political forces entitled to fill them over public interest and represent these forces’ orientations and plans in all their various work, which causes grave issues for the administration of public affairs and the work of the judicial bodies. In this regard, the judicial personnel charts passed in 2017, which The Legal Agenda dubbed the “tripartite charts” [because they were based on lists submitted by three political parties], seemed to be a tool for providing the political forces that divvied up their key positions with “electoral kingmakers” [figures who can use their influence to draw votes to a given party] in the May 2018 legislative elections.
This turns any link or overlap between the functions of these positions into a matter of bargaining, obstruction, and reciprocal vetoes while turning any dispute over powers into a political quarrel governed more by balances of power than by proper administration of public affairs and the public interests it entails. This is what we are currently witnessing with the clash between the various security agencies and the Public Prosecution offices.
Hence, the violation of this constitutional rule clearly constitutes the primary ingress for quota-sharing and the primary guarantee of its force and effectiveness and, subsequently, of the state’s continued conversion into a collection of fiefdoms. Conversely, it is obvious that complying with this rule is a necessary steppingstone in any judicial or administrative reform and a precondition for building a just and capable democratic state.
Keywords: Lebanon, Judicial Personnel, Sectarianization, Quota-sharing
 One of the main precedents in this regard is former prime minister Selim Hoss’ refusal in 1999 to sign off on a capital punishment on the basis that it violated his fundamental freedom of belief, which is a constitutional freedom.