Back to Basics: When Stating the Obvious is Groundbreaking

Tamara El Khoury

IE University

Introduction  

Following years of political impasse and a presidential vacuum between 2014 and 2016, a government was formed in Lebanon as part of a deal to end the stalemate. The new Government set itself to begin addressing a number of backlogged policy matters, at the forefront of which was a long-awaited public sector salary hike. On 21st August 2017, Parliament passed two laws: Law Nº46, which increased public sector salaries, and Law Nº45, which sought to fund them by introducing new taxes and fees and increasing existing taxes by an equivalent value. Importantly, the latter was passed in the absence of a State budget.   

On 22nd September 2017, the Constitutional Council (hereinafter “the Council”) unanimously struck down Law Nº45. The law, which was challenged by ten deputies of the opposition, was annulled on both formal and substantive grounds. Formally, it was deemed to have violated Article 36 of the Constitution, which requires that laws be voted upon on a roll-call basis. Substantively, it was considered to have violated Article 83 relative to the principles informing the preparation and adoption of the budget, as well as Paragraph “C” of the Preamble and Article 7 of the Constitution relative to the principle of equality concerning obligations and duties. Additionally, the Council annulled article 11 of the law on the grounds that it was lacking in clarity.  

The decision was immediately hailed as a “landmark in Lebanese constitutional life” by local watchdog Legal Agenda, while renowned constitutionalists, lawyers and legal activists described it as “a condemnation of legislative practice over the past thirty years” and “an end to long-standing constitutional violations that were borne by the Lebanese democratic system for decades”. At the same time, commentators were quick to note that the decision did not introduce any new principles and as such, did not effect a “development in constitutional jurisprudence or doctrine”. Rather, it merely recalled basic principles, including the principle of transparency in legislation and the principles relative to the annual and universal nature of the budget and the consequent impossibility of levying taxes in the absence of one. In stating the obvious, the decision represented less of a revolution and more of a restoration of constitutional order.  

As such, the relevance of the decision only becomes apparent when considered against a backdrop of repeated violations of the Constitution − by both the legislative and executive branches of the State − and in light of the State’s failure to adopt a new budget for thirteen consecutive years. The arguments put forward by the Council are inherently linked to the principles of oversight and accountability − basic tenets of parliamentary democracy. At the same time, in rejecting an interpretation of the Constitution that, while patently contrary to it, enjoyed consensus among parliamentary forces, the Council further asserted itself as the sole authority with the power to provide an authentic and therefore binding interpretation of the Constitution. Amidst repeated claims of parliamentary supremacy over the years, the Council’s affirmation of constitutional supremacy − the very idea that the power of State institutions, including Parliament, is limited − amounted to a simple but crucial return to the rule of law.  

Unconstitutional Practices Amidst Claims of Parliamentary Supremacy 

Article 36 of the Constitution explicitly requires that voting on laws always take place by roll-call and audibly. Over the course of many years, however, the Lebanese Parliament approved a good number of laws by a show of hands. This meant that it was not possible for citizens to know whether their deputies voted in favour or against a given law, rendering it impossible for them to hold their representatives accountable. This blatant violation of the Constitution nevertheless went unchallenged for years. 

In turn, Article 83 of the Constitution mandates that a budget be annually submitted by the Council of Ministers for approval by Parliament. Contrary to this clear constitutional mandate, Lebanese State authorities had been operating in the absence of an annually approved budget since 2005, owing to continuous bickering between the country’s main political forces.  Instead, Parliament repeatedly resorted to Article 86 of the Constitution, which refers to the “provisional twelfth”, that is the possibility to operate on the basis of the budget of the previous year during the month of January of the new year, whilst Parliament approves the new budget. Failure to develop a new budget further meant that no final annual accounts were submitted to Parliament for approval as required under Article 87 of the Constitution. State spending thus went unchecked for more than a decade.    

Back to Basics  

In condemning the adoption of the law by a show of hands, the Council affirmed that its function is not limited to ensuring the conformity of the content of a law with the Constitution, but also encompasses the form through which that law is adopted. However, the Council went further. It drew a clear link between roll-call voting and parliamentary democracy. It argued that “given that people regularly elect their representatives to exercise power on their behalf, subject to their oversight and control to enable the people to hold them accountable and make their choices”, and that “control and accountability require transparency in legislative activity when laws are approved”, “the requirement contained in article 36 is an essential condition for control and accountability in parliamentary democracies” and not “a mere formality”. In ruling that the constitutional provision is fundamentally linked to the nature of a parliamentary democracy, the Council restored its true constitutional and political dimensions.  

While this first violation detected by the Council represented a rebuttal of legislative practice, the violation relative to the levying of taxes in the absence of a budget expressed in turn a condemnation of Parliament’s practice of not legislating.  

In invalidating the law, the Council’s decision amounted to declaring all tax levying and State spending over the past twelve years unconstitutional. Importantly, the Council did not consider that introducing new taxes aimed at financing the wage hike ran necessarily contrary to the universal nature of the budget and the prohibition of ear-marking. Exceptions to the prohibition of ear-marking can be admitted if properly justified, but they cannot be introduced outside the framework of and in the absence of a budget. Whereas it was accused of interfering in parliamentary prerogative over taxation, the fact of the matter is that the Council did not delve into an analysis of the appropriateness of the law under review. Given the interrelationship between Laws Nº45 and Nº46, the annulment of the former meant that the funds necessary to pay for the increase in wages introduced by the latter were rendered unavailable, which had clear negative social repercussions. However, in striking down the law, the Council did not question the motives of Parliament; it limited itself to determining its conformity with the Constitution. The decision was misinterpreted by some as amounting to a prohibition on Parliament to introduce new taxes. It must instead be read as a reminder that, to the degree that taxes represent an imposition on citizens, their introduction must be justified as necessary, and that necessity is tied to expenditure, which is expressed in a budget. In essence, the Council equated the failure to project expenditure with an abdication of governmental duties consisting in establishing a clear policy programme for the state. The lack of possibility for Parliament to exercise periodic supervision over a relatively short period of time of governmental spending and thereby hold the government accountable is further condemned.  

While the constitutionality of Article 11 of the law, which introduced fines relative to violations of maritime property, had not been challenged, the Council nevertheless annulled it for lack of clarity. The six-page long article was impossible to make sense of, which seems to suggest that the Deputies did not quite look at it, let alone debate it. The Council justified its decision by arguing that the lack of clarity of a legal text allows for its discretionary application, leading to the violation of the principle of equality among citizens, and that it can further lead to a misinterpretation of legislative will, resulting in an application of the law that is contrary to the intention of the legislator. Beyond this sound analysis, however, one cannot help but perceive a rebuke to the Deputies and the manner in which they carry out their legislative functions. Here too, Parliament is being held accountable.  

Who Interprets the Constitution? 

By holding Parliament accountable following years of unconstitutional practice, the Council asserted the principle of the supremacy of the Constitution against claims of parliamentary supremacy. Such claims partly originated from the fact that, while the 1989 Taif Agreement that ended the war and mandated a series of amendments to the 1926 Constitution stipulated the establishment of a Constitutional Council tasked with interpreting the Constitution and controlling the constitutionality of laws, the amended Constitution merely refers to constitutional control. This has served as basis for the Speaker of Parliament to claim repeatedly that it is Parliament that holds the power to interpret the Constitution. The implication is that Parliament − a constituted power − can replace the constituent power by amending the Constitution by way of its interpretation, that is, by adopting a resolution on the basis of a simple majority, which all but amounts to doing away with constitutionalism.  

In the Aftermath of a ‘Landmark’ Decision  

The 2017 decision was a firm if rare denunciation of unconstitutional governmental and legislative practices. It was an unprecedented attempt at restoring constitutional rule against years of recurrent violations that had gone unchallenged. Annual budgets made their comeback, restoring a certain sense of constitutional normalcy. It remains that the power to appeal to the Council is still concentrated in the hands of the President of the Republic, the President of Parliament, the Prime Minister, ten Deputies, and the Heads of the legally recognized religious confessions with respect to personal status, freedom of belief and religious exercise, and freedom of religious education. In a consociational democracy intended to manage pluralism but that has turned into a “tyranny of sectarian pluralism”, it is difficult to expect steady challenges to abuses of power. Unless the Constitution is amended to give individuals the power to appeal to the Council, whether directly or indirectly, political consensus is bound to continue to block constitutional oversight.  

Tamara El Khoury is a Professor of Constitutional Law at IE University, Spain. 

Suggested Citation: Tamara El Khoury, IE University, Spain, ‘Back to Basics: When Stating the Obvious is Groundbreaking’, IACL-AIDC Blog (22 June 2021) https://blog-iacl-aidc.org/menaregion/22-6-21-back-to-basics-when-stating-the-obvious-is-groundbreaking.