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Lebanon’s Unwritten Constitution - ASHARQ AL-AWSAT English Archive
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Lebanese MPs attend a parliament session in Beirut, Lebanon, on May 31, 2013. (Reuters/Mohamed Azakir)

Lebanese MPs attend a parliament session in Beirut, Lebanon, on May 31, 2013. (Reuters/Mohamed Azakir)

Beirut, Asharq Al-Awsat—Lebanon’s unwritten constitution has, as anywhere, arisen from tradition. In other words, any practice in Lebanese society that has affected government and which has been repeatedly practiced has become part of the constitution, so long as nobody objected to it too vocally. One of the eldest of these traditions is, perhaps, the division of power along sectarian lines that has arisen since 1943, known as the confessional system. In that year, when Lebanon was liberated from the French mandate, the country’s leaders met and agreed to the unwritten “National Pact,” which divided power—in particular, seats in the new parliament—between Christians and Muslims in a 6:5 ratio. The president and the heads of the army and public security would all be Maronite Christians. A Shi’a Muslim would be appointed Speaker of Parliament, and a Sunni Muslim would be Prime Minister. Though this arrangement was not written down, changing it was one of the causes of the devastating civil war that ended in 1990, with the signing of the Taif Agreement.

That document provided for equality between Muslims and Christians in the political sphere in a written document, but it added another unwritten tradition to the fold in response to demands from the Shi’ite community. Lebanon’s Shi’ites had originally called for a post of vice-president to be created—an idea originally suggested by the current Speaker of Parliament, Nabih Berri, during peace talks at Geneva and Lausanne in the mid-1980s. It was suggested once again at Taif, this time by Prime Minister Hussein Al-Husseini, but was rejected once again on the grounds that the parliamentary system did not have a position of “vice president.” Instead, the Ministry of Finance was handed over to the Shi’ite sect at Taif, by virtue of the fact that the Minister of Finance has to sign off on most money bills and the sect’s original goal had been to secure a post involved in signing bills into law.

Lebanon’s political leaders are reportedly growing closer to a settlement to a crisis that has stalled governance since the Cabinet since March last year, when the last Cabinet resigned. In this latest political stalemate, it is clear that Lebanon’s confessional system is continuing to interfere with the smooth running of government. As Prime Minister-designate Tammam Salam, a Sunni, tries to form a national consensus government with each party in the coalition taking at least one ministerial portfolio, Michel Aoun, a Christian, has been in opposition, saying Salam’s proposed arrangement would run foul of tradition and marginalize Christian presence in the government. Doubtlessly, part of the dispute has arisen because the traditions governing the assignment of ministerial posts are unclear.

Musical ministerial chairs

That custom, of selecting a Shi’ite finance minister, continued over a number of years and a number of different governments. Ali Khalil served as Minister of Finance in the government of Salim Al-Hoss and during the first premiership of President Elias Al-Hrawi, who was elected immediately after the Taif Agreement and served until 1998. In his first government, the Ministry of Defense was given to the Greek Orthodox sect, the Interior Ministry to the Maronites, and the Ministry of Foreign Affairs to the Sunnis. Thus these ministries, known as the “sovereign ministries,” were assigned to the four largest sects, while the remaining ministerial portfolios were distributed among the remaining sects. In the subsequent government, Prime Minister Omar Karami maintained that system, although he appointed a Sunni as Minister of the Interior, a Maronite Christian, to the Foreign Ministry, and a Greek Orthodox Christian to the Defense Ministry. Prime Minister Rashid Al-Solh then followed suit, and his government—the third under Hrawi and the second after the Taif Agreement—allocated the Ministry of Finance to Asaad Diab, a Shi’ite, in 1992. Solh assigned a Sunni to the Interior Ministry and a Greek Orthodox Christian to the Ministry of Defense.

While it seemed in those early years after the civil war that Lebabnon was acquiring a new customary constitutional law, the system did not hold out. In 1992, the late Rafik Al-Hariri began his tenure as Prime Minister. As his economic plans required a certain kind of presence in the Ministry of Finance, Hariri asked that the portfolio be given to one of his close associates, Fouad Siniora, a Sunni. But that request was rejected, as it would mean breaking with the tradition then being established for Hariri and not for others. Instead, Hariri himself was appointed finance minister and Siniora was made the Minister of State for Financial Affairs, to assist with any tasks Hariri himself could not undertake due to other obligations. In the meantime, the Ministry of Defense was given to a Shi’ite, the Ministry of the Interior to a Greek Orthodox Christian and the foreign ministry to President Hrawi’s son-in-law, Maronite Christian Faris Bouiez, who had held the post under the two previous governments.

Salim Al-Hoss, who formed the government from December 1998 until October 2000 after Hariri refused to preside over the first government under President Émile Lahoud, appointed a Greek Orthodox Christian as finance minister while also leaving the interior ministry to the sect. He left the defense ministry in the hands of the Shi’ites, and the foreign ministry was given to the Sunni Muslim sect.

Following his return to power with a landslide election victory in 2000, Hariri made the same request with regards to Siniora and the finance ministry, and that time Siniora did take the finance portfolio. In his second government the foreign ministry was given to the Shi’a sect for the first time, which gave rise to a tradition that has continued until today.

In the next government, led by Omar Karami from 2004, the foreign ministry was again given to the Shi’ites, the finance ministry to the Orthodox Christians, the defense ministry to the Sunnis and the interior ministry to the Maronites.

Najib Mikati, who came to power after the assassination of Hariri in 2005 and the consequent collapse of Karami’s government, gave the finance ministry back to the Maronites. He assigned the Defense Ministry to the Greek Orthodox sect and the interior ministry to the Sunnis, leaving the foreign ministry with the Shi’ites.

The same arrangement was used in Siniora’s first government, which was formed after the 2005 elections. But in his second government, formed after the infamous Doha Agreement of 2008 that paved the way for Michel Suleiman to come to power, the interior ministry was headed by a Maronite and the defense ministry by an Orthodox Christian. The finance ministry was given to a Sunni, Mohamad Chatah (who was assassinated in December). The foreign ministry again remained with the Shi’a sect.

The government of Saad Al-Hariri, which lasted from 2009 to 2011, repeated Siniora’s pattern. The Shi’ites had the foreign ministry, the Sunnis the finance ministry, the Orthodox Christians the defense ministry and the Maronites had the interior ministry. This arrangement was repeated again in 2011, when Mikati became prime minister after the collapse of Hariri’s government.

A sect’s ministries are its castle

If the so-called sovereign ministries are the most important in government and allocated equally among Lebanon’s sects, then other ministries are allocated according to the political needs of each group. For example, Prime Minister Berri refused to take part in the first government under President Hrawi until he was entrusted with a special ministry for the south, which gave him the ability to implement projects in a region where his political and electoral interests were concentrated. Berri used his time at the head of that ministry to consolidate his presence in south Lebanon through building and improving infrastructure, including schools, roads and irrigation. For this reason, he also sought to keep the Ministry of Energy and Water Resources in the hands of his own Shi’ite sect.

Walid Jumblatt also has control of a similar ministry, the Ministry of Displaced People, through which he has used service provision to strengthen his influence in the Mount Lebanon region. In addition, the Ministry of Public Works has remained under the control of his Druze sect.

The late Prime Minister Hariri focused mainly on the economy, finance and construction, and so he sought to secure ministries related to these competencies for his followers. Similarly, President Hrawi’s main interest was foreign affairs, and he sought to secure corresponding ministerial posts. Two generals who went on to become presidents, Émile Lahoud and Suleiman, were keen to secure the security and defense ministries, and those two portfolios were always allocated to members of their Maronite Christian sect.

Syria’s allies always took possession of the Ministry of Labor, which was concerned with employment—and mainly employment in Syrian Lebanon. Thus it was exclusively headed by Ba’athist ministers or those from the Syrian Social Nationalist Party. When those two parties left government in 2005, Hezbollah took over.

The Ministry of Energy and Water Resources has transformed very rapidly into a “super ministry” due to the discovery of promising oil resources, and so Michel Aoun has sought to maintain control of it through his son-in-law, current Minister of Energy and Water Gibran Bassil, a Maronite. But Aoun is being challenged by Berri, a Shi’ite. Bassil has gone so far as to tie the energy ministry to “the rights of Christians” in Lebanon, saying that “oil gives a new guarantee for the Christians. There is a balanced growth in it that the Christians have been missing for 25 years.”

Illustrating the emphasis placed by the sects on securing ministerial portfolios, he added: “Is it permissible to deny the largest Christian bloc a sovereign portfolio? The Christians must come together regarding this issue as today we form the largest Christian bloc and tomorrow someone else will, so is it permissible to deny the largest Christian bloc a sovereign portfolio and for the Christians to be left with the two lesser sovereign ones? . . . Has the Christian role become one of folklore? Christians cannot be deprived of anything because they are the guarantors of everything in Lebanon, and they are not beggars of seats and portfolios.”

Does anybody know how it works?

Article 95 of the Lebanese constitution provides that “the sectarian groups shall be represented in a just and equitable manner in the formation of the Cabinet” until such time as the confessional system can be abolished. But Lebanese constitutional scholars have identified a layer of unwritten constitutional law solidifying that provision, in which the three major sects—Maronites, Sunnis and Shi’ites—must be given an equal share of ministerial portfolios with the remaining sects taking the remainder.

As Lebanese legal expert Ahmed Al-Zain acknowledges, under this arrangement representation of Muslims is limited to members of the Sunni, Shi’ite and Druze sects, which each get two ministers if the government has 30 ministries to staff. That figure was adopted by Prime Minister Rafik Hariri, to secure as diverse a representation as possible. Other than Maronite and Orthodox Christians, no minority Christian sect would receive a ministerial portfolio under this power-sharing tradition unless there were 30 ministries. Thus the 24 ministries being proposed now would exclude minority Christian sects from holding ministerial posts. Furthermore, under this arrangement the Armenians do not get a minister unless there are more than 19 ministries, and the Alawites, who have never held a ministry despite the extensive Syrian influence during the 1990s, do not get a portfolio unless there are 35 or more ministries.

Citing the Taif Agreement and the discussions leading to its agreement, former justice minister Edmond Rizk rejected the idea that a certain ministry should always be allocated to a specific sect. “When we were meeting in Taif,” he said, “we set off based on the idea that Lebanon is a diverse country and there is no discrimination.” He added that when he was entrusted with formulating constitutional amendments he purposely mentioned a paragraph from Article 95 that stipulated the abolition of confessional representation and called for resorting to expertise and competence in public offices, the judiciary, military and security institutions, and public and mixed bodies in accordance with the requirements of national reconciliation.

Rizk believes that any discussions about the “rotation” [of cabinet portfolios] is “heretical,” because ministers should be selected based on their specific expertise and competencies. He emphasized that the ministries “are not inherited but are rather a responsibility on the shoulders of those in charge of them,” stressing that any talk of rotation of cabinet portfolios inherently implies confessionalism.

Rizk believes that people are now looking for solutions in the wrong places, saying: “Lebanon today needs to develop its spirit of citizenship and to bypass sectarianism and to confront excessive family gains.” Looking to Lebanon’s past, he noted that the system in place before the civil war&€8212;where ministers were selected by the president in consultation with his prime minister alone, without reference to Lebanon’s various political parties and trends—may be a guide for its future.

But unless that system can be reestablished, it seems that Lebanon’s sects and their corresponding political parties will continue to hold great influence over the selection of ministers, contrary to the normal course of government formation in a parliamentary democracy—Lebanon’s own constitution states that the president and prime minister alone are entitled to form the government and select the ministers. The unwritten constitution that has emerged since the Taif Agreement clearly prevents that, and so today the confessional system reigns supreme over the selection of ministers.