On 30 May 2023, the Constitutional Council issued Decision no. 6, dismissing the challenge to the law extending the term of the municipal council and mukhtar councils [councils that assist some local elected officials]. The decision incidentally enshrined some positive points. These include freeing the Constitution from arbitrary interpretation by the political forces dominating Parliament and refuting “pactism” [mithaqiyya, i.e. the notion that laws, electoral results, and decrees of a constitutional nature or involving questions of raison d’etat require consensus among major political representatives of the large sects], which I examine separately at the end of this article.

 

However, the council’s decision was disappointing because of its repercussions on citizens’ rights and its leniency regarding the performance of a political authority that has come to breach the Constitution all too readily. Most gravely, the decision enshrines an approach that normalizes constitutional violations and gives the political authority a free hand to continue disrupting state institutions and limiting public freedoms. The council accepted the extension of the municipal and mukhtar councils’ term – submitting to the fait accompli because of the anomalous situation imposed by the political authority – after it elaborated the constitutional violations that this extension entails in the body of the very same decision.

 

Before commenting further on the decision and its dimensions, I must note that it was supported by the majority of the Constitutional Council’s members. Three members (Mireille Najm, Michel Tarazi, and Riad Abou Ghaida) recorded dissenting opinions calling for the challenged law to be abrogated.

 

The Law Violates the Constitution, but Abrogation Is Worse Than Application

The decision made a significant effort to underscore the law’s unconstitutionality.

 

Firstly, the Constitutional Council once again established that, “Suffrage, and therefore a citizen’s right to elect or be elected, is a constitutional right and embodies the democratic principle that underpins the constitutional system in Lebanon. Whether it is exercised in parliamentary elections or in local elections, it has the same constitutional value”.

 

Secondly, the decision emphasizes that the government had the organizational and logistical capacity to conduct local elections within the legal deadlines, contrary to what was said in the parliamentary initiative and discussions. It also emphasizes that the administration cannot invoke its own negligence to free itself from its commitments to its citizens, especially the holding of periodic elections. This is stated verbatim in the following clause:

 

“Whereas negligence by the administration, which had ample time to prepare for and conduct elections before the term ends and within the deadlines it set, does not justify extending this term or leaving [the elections] up to the will of this administration for a year. The administration might again neglect [to hold elections] to the end of the grace period, once again confronting Parliament with a fait accompli, and Parliament – given the facts it had indicating that the elections could not be conducted on time – could have made the extension a technical extension lasting for a short and reasonable period, i.e. the appropriate period warranted by those facts”.

 

Thirdly, the council argued that Parliament cannot delegate to the administrative authority the power to set the election date, which it effectively did when it stipulated an extension lasting until 31 May 2024. One clause states:

 

“And whereas it is unconstitutional for the legislator to leave it up to the administrative authority to handle a matter that falls within his constitutionally established comprehensive powers concerning, among other things, the date during which it conducts elections, although this constitutional violation could have been avoided by omitting ‘at the latest’ from the text”.

 

After all this undisputed explanation, which logically should lead to the law’s abrogation, the council suddenly spun around and announced the following:

 

“And whereas the entry of the country into an anomalous and unusual situation, as is currently the case, dictates that the Constitutional Council [weigh] the harm done by the constitutional violation against the harm arising from abrogation – which would undermine the constitutionally valuable principle of ensuring uninterrupted public service [sic] – in order to preserve the country’s supreme interest, for which the Constitution was created”.

 

Then, in a dramatic finale, the council concluded that because of the expiry of the municipal and mukhtar councils’ term on May 31 (one day after its decision was to be issued), Parliament’s inability to convene and pass an alternative legislation before that date, and the need to preserve public order, prevent the vacuums from worsening, and ensure the continuity of public service, it must dismiss the challenge and allow the extension even though the latter violates the Constitution.

 

The damage done by this disappointing decision is not limited to denying citizens their democratic right. Rather, the decision also illustrates an approach that the Constitutional Council has followed in recent years, namely open and explicit acceptance of constitutional violations on the pretext of avoiding the anomalous situation of a vacuum.

 

The Concept of an “Anomalous Situation”: Overturning the Constitution

As mentioned, this decision is not an isolated one but a continuation of an egregious approach innovated by the council’s previous membership. The approach first appeared in Decision no. 7 of 28 November 2014 upholding the law extending Parliament’s term, which enjoyed a consensus among the leading figures of the political system. This decision followed the same course as the decision on extending the municipal councils. It began by stating that extending Parliament’s term by two years and seven months conflicts with the Constitution, that “the periodicity of elections is a constitutional principle that absolutely cannot be infringed”, that it is unconstitutional to make elections contingent on an agreement on a new electoral law, and that although exceptional circumstances may justify postponing the elections for a limited time, “they do not justify extending Parliament’s term by two years and seven months”. It then surrealistically concluded by dismissing the challenge “to prevent a continued vacuum in the constitutional institutions”.

 

The same goes for the challenge to the 2018 Public Budget Law. This budget was issued in clear violation of Article 87 of the Constitution, which prohibits the promulgation of a new budget before a closure-of-accounts law [i.e. an audit of the previous year’s budget] is issued. In Decision no. 2 of 14 May 2018, the Constitution Council held that issuing the budget before the closure of accounts constitutes a violation of the Constitution and the separation of powers, as well as an encroachment on the powers of Parliament and the judiciary and their role in monitoring the budget’s implementation. Yet the decision concluded by upholding the law because of the state’s need for a budget and to avoid public finance anarchy. The council even stated that the “anomalous situation” represented by successive governments’ failure to conduct an annual closure of accounts since 2006 should not preclude the adoption of a budget because the closure of accounts “was established for the sake of the public budget, rather than the public budget being established for the sake of the closure of accounts”. The council did add that “an end to this anomalous situation and the enactment of a closure of accounts in accordance with the constitutional norms” should “occur promptly and without delay”.

 

The Constitutional Council repeated this jurisprudence when the public budgets for 2020[1] and 2022 were challenged. Once again, the council declared that “adopting the budget without a closure of accounts disrupts the role and responsibilities of the legislative branch and Court of Accounts and, therefore, the financial oversight that the Constitution vests in the legislative and judicial authorities. It prevents the legislative authority from exercising serious oversight over that budget”. Yet it then added that although Parliament’s failure to perform its role in monitoring the government and the government’s failure to perform its duty to produce a closure of accounts had led to an “anomalous situation and caused gross harm to supreme national interest”, that anomalous situation “should not prevent the enactment of a public budget given its indispensable importance to the state”.[2] This time, the council not only yielded to the anomalous situation but also refrained from urging the political authorities to end it.

 

The most remarkable aspect of all these decisions is the emergence of the concept of an “anomalous situation” [hala shadhdha]. The Constitutional Council now uses this concept to tolerate constitutional violations, arguing that because of this situation, nullifying the violation could cause more harm than ignoring it. Tarek Ziadeh, the council’s late vice-president, actually opposed the concept when the council first invoked it. In his dissenting opinion on Decision no. 2 of 2018, he argued that the concept is vague, does not appear in constitutional theory or jurisprudence, and is a synonym for exceptional circumstances [zuruf istithnaiyya] that is inadmissible when a constitutional text requiring a closure of accounts exists, and that such circumstances did not exist in the first place. The council’s decisions imply that an anomalous situation falls totally outside the doctrine of exceptional circumstances[3] enshrined in the constitutional and administrative judiciary’s jurisprudence, which sometimes justifies disregarding constitutional norms. Exceptional circumstances are situations that cannot be foreseen and that – because they cannot be rectified via the usual legal means – compel the authorities to violate the law, albeit for the sake of public interest and only within the limits and timeframe they necessitate. On the other hand, the “anomalous situation” was – by the Constitutional Council’s own admission – born of the political authority’s negligence. It arose from the will of the political authority, which caused a major disruption in the operation of the state institutions. Hence, it is an anticipated, known, and ongoing situation or – in other words – a fait accompli that is engineered by the political authority in blatant violation of the Constitution, makes compliance with the Constitution difficult, and therefore requires tolerating further constitutional violation. Without exaggeration, the expansion of this concept to encompass the most important constitutional norms (the periodicity of elections and the public budget) leads to the complete demise of legal order in the state and produces an alternative legal normativity.

 

Just as an encroachment on public property requires the immediate removal of the encroachment, an anomalous situation (i.e. violation) must be ended not normalized. Otherwise, it is no longer actually anomalous – the law itself becomes the anomaly. Thus, the Constitutional Council’s decisions relating to [electoral] extensions and [public] budgets lead to a dangerous reversal in norms, with the anomalous situation becoming the basis for government and the Constitution losing its peremptory normativity.

 

The vacuum in the state institutions does not constitute an exceptional circumstance from a constitutional perspective because it was foreseeable and a result of practices adopted by the political authority that brought the country to a complete collapse. The political authority benefits from the circumstances it produced because it suspends citizens’ rights and allows itself to remain in power on the pretext of averting a vacuum. Here lies the clear difference between the doctrine of exceptional circumstances and an “anomalous situation”: the vacuum was created by the political authority, whereas the emergence of exceptional circumstances is beyond human control. Now, the people who create the vacuum and disrupt the constitutional institutions know in advance that they can breach the Constitution with impunity because the anomalous situation they created allows them to do so.

 

This approach adopted by the Constitutional Council undoubtedly leads to other very grave effects, the most important being the phenomenon of “supra-constitutional principles” (supra-constitutionnalité). By declaring multiple times that the periodicity of elections is a constitutional principle and then deeming averting a vacuum to be a legal duty that trumps it, the council has created a hierarchy among constitutional principles that can be sacrificed if they conflict with the need to avert a vacuum, which becomes the ultimate duty that trumps all other considerations. Thus, the Constitutional Council is transforming from a council that ensures compliance with the constitutional norm into one that legitimizes disregarding this norm by yielding repeatedly to political extortion and clearly declining to innovate any jurisprudence to free itself from it.

 

Potential Solutions to Confront the Anomalous Situation

Does the Constitutional Council have no means of confronting the engineers of the anomalous situation? In other words, did it really have only two options: either submit to the extension of the municipal councils’ term to avoid a vacuum or abrogate the extension and hence be responsible, if only partiality, for the vacuum?

 

Comparative law reveals other options that the council deliberately ignored. They include abrogating the unconstitutional law but postponing the decision’s entry into force for a reasonable period during which the political authority can hold municipal elections, the goal being to avoid the harm that could arise from its immediate application. The French Constitutional Council, for example, has traditionally done this, especially since obtaining the power to examine pleas of unconstitutionality in 2008.[4] It tempers the temporal force of its decision (modulation dans le temps) in order to avoid the harmful consequences that could arise from the immediate abrogation of a legal text, including jeopardizing legal stability.

 

The absence of an explicit text authorizing the Lebanese Constitutional Council to postpone the force of a law’s abrogation is no counterargument as Article 22 of the Constitutional Council Law of 14 July 1993 stipulates the following: “The nullified text shall be considered, within the bounds of the council’s decision, as though it was never issued, and nobody may invoke it”. In other words, in the case concerning the extension of the municipal councils’ term, the council could have exercised legal interpretation to expand its powers such that it has the latitude to set the “bounds” of the nullification and, therefore, the date on which it takes effect however it deems fit, instead of more broadly enshrining the “anomalous situation” concept. That way, the council would have ensured that the Constitution is respected and avoided yielding to extortion by the engineers of the vacuum.

 

 

Politically Controversies Resolved by the Decision   Parliament is Not Its Own Master: On the Power to Interpret the Constitution   ●        Contrary to what Parliament’s speaker and leading political figures constantly declare, Parliament does not have the right to interpret the Constitution, and the positions and statements of MPs and parliamentary blocs are not binding.   ●        Constitutional interpretation in Parliament is only binding when the same procedures for amending the Constitution – i.e. a vote on a constitutional law that requires a two-thirds majority of all MPs to pass – are followed.   ●        The Constitutional Council is the body responsible for delivering binding interpretations of the Constitution, which it does in the process of reviewing the constitutionality of laws.   The Permissibility of Legislation Amidst the Presidential Vacuum   ●        The Constitutional Council’s decision declares that Parliament’s transformation into an electoral body under Article 75 of the Constitution is limited to the session for electing the president and does not apply to every session it could convene. Consequently, legislation is permissible while the President’s Office is vacant.   The End of Pactism   ●        Contrary to what some political actors promote, the Constitutional Council implicitly rejected the notion that laws and decrees promulgated by the Council of Ministers while the President’s Office is vacant require the signature of all ministers in order to ensure “pactism” and sectarian balance.

 

This article is an edited translation from Arabic.

 

[1] Decision no. 2 of 9 April 2020.

[2] Decision no. 1 of 5 January 2023.

[3] In their dissenting opinions on the decision, members Mireille Najm and Michel Tarazi explicitly declared that there are no exceptional circumstances and that the law’s rationale is not earnest or convincing.

[4] « L’abrogation peut certes être immédiate, à compter de la publication de la décision du Conseil constitutionnel, mais elle peut aussi être différée, si celui-ci décide de fixer dans sa décision une date ultérieure (…) Il apparaît que le Conseil constitutionnel fait un usage assez fréquent de la possibilité de prononcer l’abrogation des dispositions législatives avec effet différé, qu’il s’agisse de prévenir les conséquences manifestement excessive pour l’ordre public ou la sécurité publique qu’aurait une abrogation immédiate ou qu’il s’agisse de permettre au législateur de tirer les conséquences de la déclaration d’inconstitutionnalité en modifiant les dispositions en cause » Louis Favoreu, Droit constitutionnel, Dalloz, 2017, p. 386.