How The Bill of Rights Can Save the Lebanese Constitution

Amid precipitously deteriorating socio-economic conditions, the Lebanese government formation appears to have stalled indefinitely. Notwithstanding the urgency, and all the local and international pleading  to those in power to resolve their differences, little has changed in almost two years, except of course the dramatic economic decline in what the World Bank describes as among the worst crisis of any nation it has studied for the past 150 years. Meanwhile, the Lebanese executive branch continues to be totally ineffective and unable to respond to the predicament, come up with salvation plans, let alone carry them through. The legislative branch’s failures over the past two decades have also become salient, with hardly any agenda or oversight worth mentioning. Laws that are finally passed are too late to make much of a difference and have no practical ways to be implemented or budgeted for. As for the Lebanese judiciary, it has become so politicized that judges curry favor with their political patrons for all eyes to see, with justice failing to be served in cases of corruption, assassination, bank theft, and of course the massive explosion of Beirut port.

The question many are asking is why the Constitution has not fended off such a failure in the Lebanese state (See recent blog covering this topic) and whether we have reached a point where the Constitution's fault lines run so deep that they can no longer be mended. Some will claim that the problem is not the Constitution but its lack of implementation. However, when asked “What effective social contract permits such incessant and repeated abuses?” they have no answer, except to point fingers to individuals or parties as being the culprits behind it's failures. While there is plenty of blame to spread around, this argument does not stand historical scrutiny, particularly if one considers that none of the current players in power existed half a century ago when similar divisiveness and instability was present. Unfortunately, Lebanon's Constitution has proven to be time after time nothing more than a paper barrier, easily breached by competing politicians on the back of their communities with the people always paying the price. Since the current situation has become socially unsustainable, what are Lebanon's choices?

Firstly, to keep insisting on the  implementation argument and not altering the Constitution. While this would have been the simplest remedy, clearly 100 years of evidence have shown that doing nothing or even minor tweaks do not stabilize the system or make it more implementable. Internal crisis after another point to an intrinsic instability in the design of the Lebanese social contract; so does external fiddling, which to this day continues to foster or amplify internal divisions between competing community leaders. In relinquishing its unifying role and rather relying on the communities (and the leaders) to intermediate the relationship between the state and the citizen, it seems, the Lebanese  Constitution accidentally causes the state, the citizen, and indeed the community itself to all weaken. If this Lebanese Constitution could have made the nation stand on its own two feet, it would have already. Unfortunately, proof points that it hasn't been able to and in it's current formulation, most likely can't. 

Another alternative is to set about creating a whole new Constitution that fixes the design flaws. This would require a Constitutional Assembly and a highly likely protracted legislative process, which many fear could lead to a civil war or the dismemberment of the Lebanese state. They reason that the current evenly split power-sharing formula between Christians and Muslims at 50-50, once brought in front of a new Constitutional Assembly, would be split in thirds (typically referred to as “muthelathe”), which basically reduces Christian representation to a third, on par with each of the Sunni and Shi’a communities. Here we already see community fears being incited. This is not a good sign, and makes this option a risky national bet, especially since many argue against such an Assembly on the grounds that at this time one party holds weapons while the others don’t. "How can you negotiate a fair agreement when someone is holding a gun to your head," they ask.

The question then becomes, is there a way to bridge this gap and amend the Constitution without actually replacing it? And what to focus on to make it work better than its ineffective predecessor amendments. The answer is yes. Constitutional amendments are allowed in the Lebanese Constitution. However, the Lebanese need to consider what type of amendments are needed. The Ta’ef Accord, which was the latest major Constitutional alteration, primarily shifted the allocation of executive power between the President and Council of Ministers while strengthening parliament's role. However, it did very little to protect people from state abuse or instill ways to assure their rights, which has become the most urgent requirement, demanded by protestors in all corners of the nation. At this point, the essential problem of the Lebanese Constitution is no longer limited to its design but rather its lack of protections for the individual citizen. In fact, the crisis over the past two years has shown that the common Lebanese citizen has little if any protection—be it political, socio-economic, judicial, or even personal or security. Private assets have been seized with no legal repercussions. Protests have been subdued violently with no one held responsible. More than 50,000 homes of citizens in the capital city Beirut were destroyed with hundreds of thousands displaced and no one has been compensated or held responsible. Therefore, what is imperative now is not to tinker with Constitutional design but rather for citizens to reassert or retain their rights and to provide for such missing protections in multiple amendments. A grouping of such amendments that deliver on this is basically what is referred to as a Bill of Rights.

Whilst protecting the citizen, could Lebanon’s community fears be also allayed through the introduction of constitutional amendments through a Lebanese Bill of Rights? Evidence seems to point in that direction. In fact, nations with a Bill of Rights have proven to be more protective of minorities, diversity, and the individual citizen, than nations whose Constitutions split their societies along purely community lines. Indeed, fears of weakening community power sharing formulas become somewhat irrelevant, because if all the citizens enjoy the same rights and privileges, one does not need to split the nation in any specific proportions, avoiding the dilemma altogether. Therefore, not only does a Bill of Rights become more politically viable but its long-term effects and protections can be vastly more effective. 

If the Lebanese decide to go down this road, it would place it in an almost identical situation as the United States found itself almost 250 years ago when people complained that the Constitution did not afford them enough protections within their individual states. At the same time, there was trepidation over the creation of an alternative Constitution out of fear that the entire national project would fail and the states could be split into individual countries. Interestingly, a Bill of Rights was drafted by the very person who had written the Constitution in the first place and who had initially rejected a Bill of Rights as being superfluous. James Madison rethought his position a mere two years after and deduced that a Bill of Rights would actually be the optimal middle-of-the-way solution to the predicament, as the current Constitution would remain in place, but it would be amended by the Bill of Rights, giving the citizens the rights they most sought. This also helped circumvent a full blown Constitutional Assembly and reduced the fears that such an assembly could bring. Similarly, in Lebanon, a newly elected Parliament could propose and pass the amendments as per the existing Constitution within a Bill of Rights without the elimination of the current Constitution. 

Lebanon’s current Constitution finds itself in dire straits with no fail-safe mechanisms to halt the nation's free fall or protect its people. The social contract desperately needs to be amended to provide people the protections that they seek. A Bill of Rights is the instrument that could satisfy everyone: those who fear a new Constitution as well as those who believe their rights are not protected under the current faulty Constitution. Counterintuitive as it may be, the Bill of Rights might very well end up being the tool that saves Lebanon's Constitution and the nation from auto destruction.

Lebanese Sovereignty is Elusive without Citizen Rights

In 1952, then head of the army, General Fouad Chehab was tasked by recently elected President Chamoun to assert sovereignty in the Bekaa region after security incidents that took the life of some Lebanese soldiers. Chehab took his army there and soon met with the clans (ashayer) to resolve the crisis. They informed him that crime was high in the region because the people there had no schools, hospitals, public services, or jobs. The General came back to Chamoun and reported that he could not establish sovereignty by force when these people had no rights to speak of. “Give them their rights; and I will assure you sovereignty,” he said.

Photo courtesy of gettyimages.

When Lebanon supposedly should have had absolute sovereignty in the 40's, 50's, and 60's, large portions of the Lebanese population did not have equal rights. As a result, our country entered conflict in repeated bouts and eventually imploded, demolishing its sovereignty, with armies from different parts of the world trespassing its land, sea, and air. Based on Lebanese history, one finds that the lack of Lebanese sovereignty has paralleled the lack of equal rights and protection of the state to its citizens. Meaning, when the Lebanese people could not get their due rights from their state, they searched and found it elsewhere, seizing it at times and asking for others’ help at others, either of which undermined the nation’s sovereignty.

In the Lebanon of today, the people are missing many rights and unsurprisingly sovereignty is also missing across the board and at all levels. Sovereignty in this regard is not limited to a militia but to the entire makeup of the Lebanese state and it's Constitution, which has become disconnected from the needs of the people. Citizens have established their own sovereignty even in micro issues such as electric power generation, water provisioning, and banking, let alone armed militias for the defense at the community level. Within this context, one has to ask, how can there be any sovereignty if rights continue to be unequal or missing due to an inattentive and callous state whose very design mistreats citizens and where the buck stops nowhere? Can someone genuinely demand sovereignty while holding on to expired privileges over a carcass of a state?

It is not hard to conclude, therefore, that in Lebanon the issue of sovereignty is inextricably linked to that of citizen rights. Their concurrent necessity implies one without the other is untenable. When sovereignty is lost, one's rights are lost; but the opposite is also true: One cannot demand sustainable sovereignty while political, economic, social, and judicial rights are unequal or being abused by the privileged few. Sovereignty and rights are together necessary and sufficient conditions for a viable democratic Lebanon. Each by itself is not enough; and when schisms appear, they need to be resolved holistically and not piecemeal.

In the seminal speech delivered by the Patriarch Boutros Ra’i this last February, he called on the Lebanese people, “Do not be silent about the plurality of loyalties; do not be silent about corruption; do not remain silent about the embezzlement of your money; do not remain silent about uncontrolled borders; do not remain silent about the violation of our airspace; do not be silent about the failures of the political class; do not remain silent about the wrong choices and alignment; do not be silent about the chaotic investigations of the crimes of the seaport explosion; do not be silent about the politicization of the judiciary; do not remain silent about illegal weapons ... do not be silent about the Palestinian naturalization and the integration of the displaced Syrians; do not remain silent about the confiscation of the national decision; do not remain silent about the coup against the State and the regime; do not be silent about not forming a government; do not remain silent about the failure to implement reforms …”

The Patriarch is clearly urging the Lebanese people not to cherry pick their demand for sovereignty but rather for it to accompany demands for a host of grievances due to usurped economic, social, and judicial rights. This is not only a matter of rhetoric for the pontific but rather a notable strategic shift that could pave the way for Lebanon to go in the direction of equal citizenry based on a set of equal rights, which apply to the entire population and not only the Christian communities. The Patriarch’s speech was soon after backed up by Pope Francis’ own visit to Iraq, in particular the holy city of Najaf, where he met with Grand Ayatollah Sistani, declaring that all communities in the Middle East move away from the notion of communal rights to that of equal and inclusive citizenry. In yet another signal, some Lebanese politicians who are known for their divisive sectarian rhetoric and who had requested the Pope’s audience, were shunned.

Could this seismic shift carry implications for Lebanon? Could the basis of the Lebanese future society be heading towards equal citizenry based on principals that transcend religious communities? If so, this will have a direct impact of how rights are demanded and how sovereignty is asserted. In other words, no longer would sovereignty depend on divisive communities, but rather the rights and duties of united citizens, each individually assured of their inclusivity and diversity, while committing their state to standards of honesty, consistency, transparency, and accountability in serving all its citizens equally. 

In conclusion, those contemplating that the topic of sovereignty should overarch or precede citizen rights and be targeted against a single community only need to look at Lebanon's own history to see it’s inevitable failure. If the Lebanese wish to have a pluralistic and democratic society, the two issues of sovereignty and citizen rights will need to go hand in hand. The day Lebanon affords all its citizens the same rights will be the same day that full sovereignty can be sustainably attained with much less opposition. Indeed, the epitome of sovereignty will be when the Lebanese citizen is raised on the shoulders of a rightful state through a constitutional instrument such as a Citizen Bill of Rights. Until that day comes, sovereignty in Lebanon may very well remain elusive.

Wissam Yafi is an author, technologist and economic development practitioner. He has written books on democracy in Lebanon and the Middle East, with "Inevitable Democracy in the Arab World" published by Palgrave MacMillan. His latest research centers on how a Bill of Rights can serve as a counterweight instrument to correct dysfunctional constitutions in Lebanon and the Middle East. Yafi has delivered lectures at Harvard, Stanford, George Mason, and Georgetown. Yafi is a Lebanese expat and graduate of Harvard’s Kennedy School of Government.