Lebanon’s Constitutional Reform: Transition or Clean Slate

There is a growing belief in Lebanon that something is seriously wrong with the nation’s dysfunctional system at whose core lies the Ta’ef Constitution. The reason for this bleak picture is fairly self-evident: The stricken country finds itself in a tailspin towards an abyss, with no institution or constitutional breaker of sorts capable of pulling it back. Some continue to argue that Lebanon needs to make sure the Ta’ef Constitution of 1989 is implemented posthaste to help the nation transition. Without such a transition, they contend, the country risks falling back into yet another civil war. Countering them are those who are convinced that Ta’ef has had enough of a transition period to prove itself and that it’s time for a clean slate social contract to overcome the design flaws of Ta'ef. The assertion is that it is the only way to do away with all the systemic faults, abuses, and instability of the current Constitution.

Assuming for a moment that Constitutional change has become inevitable, several key questions emerge. First, towards what kind of Constitutional reform should the Lebanese be driving? In previous articles, I have made the case for a Constitution based on a Bill of Rights (2021), which takes away some of the institutional powers and gives them back to the people—after all, according to the Lebanese Constitution, they are the “Ultimate source of all power vested in the state.” I have also argued that such a step could actually save Lebanon from utter Constitutional chaos and vacuum (2021), that sovereignty without such change will remain elusive (2021), and that many communities (2022) in Lebanon can benefit from such fundamental reform, and to a larger degree than what the current model offers them. But there is a key question yet unanswered, similar to the one I posed which in my book, A Decade of Turmoil and Hope (Morisken Verlag, 2013): “Should we pace change, or should we change pace?”. In other words, should Constitutional change be transitional, or should it be swift and starting from a clean slate?

First, let us define the main differences between the two: On the one hand, transitional Constitutions are ones that generally offer tweaks in the original Constitutions in the hope of some final settlement. They are implemented piecemeal and usually over a period of years. Transitional Constitutions typically occur in societies that are fairly stable and to a large degree uniform, such as Canada, the European Union, and Colombia. These transitional Constitutions are meant to offer meaningful change, but not a complete overhaul, because the nature and size of the problem does not merit it. Clean slate Constitutional reform, on the other hand, usually emerges within nations in flux: The United States after its revolution is one example, so are Japan’s Meiji restauration, Germany's post-Third Reich, Turkey under Ataturk, Post-Tzarist Soviet Union, Iraq after Saddam, and Tunisia beyond-Ben Ali. All these nations witnessed a break from their past and an emergence of an entirely new social contract.

What is interesting to note here is that some transitional Constitutions meant to be small steps in the right direction, end up falling short, most notably the US Confederate Constitution of 1777. It failed to unify the fledgling independent nation and actually needed a more robustly engineered replacement 12 years later at the hands of James Madison. It broke away from the past and introduced bold changes that empowered the nation forward for the next two and a half centuries. In contrast, other transitional Constitutions, like that of the European Union succeeded in taking small steps because the post-World War groundwork needed to be laid over decades with each European state building its respective stable democracy, which in turn Constitutionally transitioned into the federation that is Europe today. The transition however occurred under steady and democratic circumstances. Similarly, Canada’s Constitutional changes in the late 1960’s introduced citizen and equality rights across the board to temper the Federal Constitution. Like Europe, this Constitutional did not follow any instability or revolution; rather, it had been inspired by the UN Declaration of Human Rights. It’s meager steps were criticized for not being enough and would be bolstered a couple of decades later with other amendments.

The above historical demonstrations are meant to make the point that transitional Constitutional changes do not necessarily guarantee failure or success. Rather, underlying conditions are generally the determining factor. Stable conditions seem to be more aligned with transitional Constitutions that take small steps, whereas more acute conditions tend favor full remakes. The problem occurs when the two mismatch—meaning acute conditions being matched with small changes that don’t change the underlying causes of instability. The case of Lebanon’s Ta’ef Constitution tends to provide evidence for this argument. Transitional in nature, and not a clean break, Ta’ef is credited with ending the sixteen-year Lebanese civil war. And yet, it could not circumvent two other wars (1993, 2006), several insurrections and revolutionary bouts (2005, 2015, and 2019), dozens of assassinations (2005-2021), a financial meltdowns (2020), and what many are beginning to call a failed state (2022-2023). One could argue that the transitional nature of the Ta’ef Constitution may have been its weak link and a mismatch with the size of the conflict that preceded it. Hard decisions that needed to be taken were diluted with uncertain transitional steps that while well-intentioned were never implemented, leading to the current impasse.

In contrast, starting from a clean slate with some clear breaks with previous Constitutions have been relatively successful at accomplishing true reform, most notably the Japan Meiji Constitution post war defeat in 1868 that broke away from the nation’s Samurai entrenchment and moved it into the industrial age; the Atta Turk Constitution in 1921 that secularized and modernized Turkey away from its Sultanate post World War I; the individual European state Constitutions post World War II (Including Germany, Italy, and Hungary), which moved these away from nationalist dictatorship; the South African Constitution of 1996, which ended Apartheid and unified the races of the nation ; and most recently the Tunisian Constitution post Arab Spring Constitution, which did away with all the privileges given to the Ben Ali regime. All of these examples took the hard decisions, which often accompany Constitutional clean slates, and yet none of them led to further bloodshed or catastrophe, as some in Lebanon warn might happen.

Historically, it can therefore be shown that transitional Constitutions seem to work optimally under stable conditions, as in the cases of Canada and the EU, but they don’t do as well following tumultuous times. Whereas clean slate Constitutions usually do better after turbulent times (e.g., war), but don’t seem to be called for during peaceful times. Lebanon is certainly not stable at the moment. In fact, one could easily argue that it has been tumultuous since Ta’ef was passed; and there is little reason to believe that all of a sudden, it is likely to stabilize itself. And while it is understandable that some may garner fears that a clean slate approach to Lebanese Constitutional reform during such unstable times would be risky, there is no historical proof that it might lead to more instability or bloodshed. To the contrary, there is ample proof to refute this point as societies all over the world including the American post revolution, the Japanese and German pre-Industrial age defeats, the French and Turkish post World Wars, the South African post-Apartheid, and the Tunisian post-Arab spring— all had clean slate starts for their Constitutions without any notable regression into mass violence*.

In conclusion, those who believe in reforming the Lebanese Constitution—but who question whether the optimal approach should be through transition or clean slate—would be well served to study comparative Constitutional history. By doing so, they will conclude that slow transition need not mean stability (It could actually cause the contrary, as the case of Lebanon under Ta’ef clearly shows); while a clean slate Constitution need not imply instability. Indeed, it has proven to have the exact opposite effect in nations around the world who have been brave enough to put their past behind them and entrust their people with build their own better future.

Making the Case for International Intervention in Lebanon

I have to preface by saying that ever since the first bout of revolution in Lebanon in 2015, I have personally argued on multiple occasions, private and public, against international intervention in Lebanon. My basic premise was that internationalization would lead to an internal dynamic akin to the early 2000’s, which saw a harsh split in the nation, resulting in instability and assassination. ‘The Lebanese have to learn to resolve their differences through their own democratic elections and state institutions,’ I would argue repeatedly; and together with a group of well-meaning Lebanese and expats drew up the Lebanese Bill of Rights as an instrument that shifted the focus of the Constitution from the rights of the sects to the rights of the individual precisely to circumvent more such conflict. 

It was an effort to bring about serious change and reform to some key elements of the Constitution that had been destabilizing the nation for nearly half a century. We published the Bill of Rights and its deployment plan and took the time to present it to the Lebanese government, parliamentary representatives, traditional parties, and organizations within civil society. More importantly, we toured many cities and towns to share it with the people, most of whom expressed support for what it meant to them as citizens. Other reform initiatives were launched as well around the same time with equally good intentions. Unfortunately, none of these were seriously pursued by the country’s powers that be, with the de facto ruling junta preferring to prolong the status quo and milk the system to the last drop.

As a result of this intransigence, sadly the fortunes of the nation would continue in a nose dive, going from bad to worse to unfathomable: Financial meltdown was soon followed by an economic depression only to be surpassed by a massive explosion that destroyed half the capital city of Beirut. Meanwhile, Lebanon’s corruption would reach unprecedented levels, with the nation not only defaulting on its obligations for the first time in its history, but it would also become energy-less, poverty-stricken, politically in a vacuum, environmentally a disaster, and militarily ruled over by an iron fist junta ready to smash any form of serious political dissent with impunity.

Today, Lebanon's case is no longer about any individual case of abuse or specific incident. It is about the collective dominance over and terrorization of an entire populace, the trampling of their human rights and personal well-being, the disturbance of their peace, and the systemic destruction of their state. Lebanon and its people have essentially been forced into an abysmal pariah nation where constitutional abuse reigns supreme and common citizens have no legal recourse to demand their rights. Property has been usurped, lives lost, and bodies maimed with not a single trial held, let alone conviction issued. The ugly truth starring us all in the face is that Lebanon has ceased to be what was once a liberal democracy in the middle east, showcasing the will of its multi-denominational people. Instead, it has become a failed state, as evidenced by its catastrophic political, socio-economic, judicial, and security meltdown.

Recognizing this has become an imperative. So has accepting the fact that the Lebanese people are unable to bring about change democratically. Lebanon's recent elections must not be seen as a democratic exercise, rather as a mere reflection of a broken sectarian system, which is gerrymandered to keep in power at all costs the same corrupt and incompetent junta and to rubber stamp its fake legitimacy time and again. With millions of protestors on the streets in Lebanon and across the world these past few years, the latest parliamentary elections still yielding a shocking 90% of parliament in the hands of the same junta that got Lebanon to its calamitous state is but an indication of the current population's inability to bring about systemic reform democratically.

And yet encouragingly, we know what the majority of Lebanese want (as expressed through multiple scientific polls) and that is fundamental reform. They are expressing that they are done with the old system, even though they may not know what system it should be replaced with. We also know that the ruling junta is refusing (and indeed has little incentive) to give in, since it means ceding many of the privileges built over the past few decades. Evidently, the junta is fine seeing more than 85% of the Lebanese population fall under the poverty line; fine with the murderous and corrupt roaming free, while the innocent victims are being interrogated and placed in horrid jails; and fine with state institutions breaking down with literally no ink or paper to print on; but the buck stops at citizens protesting for justice against corruption and mass murder. 

It is all these factors and so many more that have led me to turn 180 degrees from my previous non-interventionist stance. I now believe that the dangerous path that the ruling junta has put Lebanon on is a massive risk to the future of the nation and its people as well as to international peace. Only international intervention can turn the tide. The key question at this point is what form of international intervention are we talking about? I see three options:

The first option is the one being peddled in Lebanon by the ruling junta and traditional political parties in parliament. This option would see a national summit held somewhere to agree on the next steps needed to reactivate the country politically (and implicitly to beg the international community for economic support). This would be more or less a similar approach to the Doha Agreement of 2008. The positive element of this approach is that it is expedient and doesn’t alienate those in power. The problem with this approach, however, is that it fundamentally changes nothing and keeps in power the same folks who got Lebanon to its current catastrophic state. With so few locally or internationally willing to trust the junta anymore to do any reform, let alone curb corruption, many believe that this option won’t change much except extend a lifeline to the junta itself. Therefore, to many in Lebanon and abroad, this has become a non-starter.

The second option is diametrically opposite to the first one and aims to invoke the UN’s Chapter 7, calling for the complete dismemberment of the Lebanese state (together with the ruling junta) and to replace it with transitional UN guardianship. This would be followed by a Constitutional Assembly that creates a new Lebanese social contract meant to get the nation back on track with a new system and a new set of leaders. This option is increasingly being discussed within Lebanese expat circles and has been promoted by prominent expats like Ralph Nader and James Zoghby. The positive element is in its clear cut and dried approach that does away with the old and ushers in the new. The downside is that it may face stiff opposition from within Lebanon as well as from outside. Inside of Lebanon, many fear it could recreate the violent dynamics of the early 2000's. Others fear that a Constitutional Assembly would take away sectarian community privileges. Others still would likely oppose its legitimacy, citing recent election results as the true will of the Lebanese people. Internationally, opposition may come from the UN proper and particularly members of the Security Council who may not want to go as far as Chapter 7 just yet on grounds that no UN members will be willing to foot the bill of any form of military or administrative presence or guardianship at a time when COVID and the war in Ukraine have emptied most coffers.

There may be a third option-one that takes elements from both previous options. This option would have the UN offer to mediate to reform the Lebanese state through an instrument that circumvents a Constitutional Assembly (eg. a Bill of Rights) with Constitutional amendments that deliver the needed reforms. This would necessarily have to be presented and passed by the current Lebanese parliament with the acquiescence of all current parties, lending it unquestionable legitimacy. But what would be the incentive for the locals to do this? Primarily, it would be a “nuclear” economic threat of a full financial embargo on Lebanon that puts a stop to any expat remittances, international aid or loans. Invoking this threat would immediately checkmate an already teetering ruling junta into accepting because without expat remittances, Lebanon would not be able to survive. Significant pressure would quickly pile up for any hangers on within the ruling junta, with most realizing the unsustainability of the regime to stay in power. Even the thorny issue of Hezbollah arms would be put on the table as part of the once-and-for-all resolution that the UN could table, providing protection to Lebanon whilst giving equal rights to the citizens whom Hezbollah claims to protect. Essentially, by providing protection and rights, the Lebanese state would render intermediation by these internal actors unnecessary. Why would the international community accept to undertake this "nuclear" economic option? Because it may be  the simplest option and one that has been tested successfully in other nations like South Africa. Without firing a single bullet, the international community brought about the downfall of apartheid. This option would therefore not cost much to implement, and limits the ruling junta's option to a UN-sponsored reform plan; or else for it to face an international blockade coupled with the wrath of the local population. This option could also more likely garner general assembly support, circumventing the Security Council and any potential vetoes on the case of Chapter 7.

Over the past few years, crisis after another have provided clear evidence that the Lebanese people are powerless to face up to the unscrupulous sectarian ruling junta that has taken over their nation. Lebanon now needs the international community, in as much as the international community will need a Lebanon that is peaceful, liberal, and multi-denominational—emitting a message of peace and co-existence to the world. Lebanon being situated a mere 90 miles away from European shores, the international community needs to ask itself the following question: Does it want the Lebanon that has influenced the world through its co-founding of the UN, the drafting of the UN Declaration of Human Rights, through Nobel laureates, authors, teachers, engineers, doctors, designers, dancers, and musicians? Or does it want a Lebanon that is a pariah failed state, which exports misery, drugs, violence, and terrorism? Regardless of the world’s preoccupation with other conflict regions, leaving things to chance or to the goodwill of the ruling Lebanese junta would be callous and irresponsible.

In conclusion, it is now time for the international community to step up and step into Lebanon, demanding a hard reset in the stricken nation. It is time to impose the will of the Lebanese people and the international community to help shift the disastrous trajectory to one that brings Lebanon back to its former ideals. It is time to reform its Constitutional system, giving equal rights to all its citizens, eliminating divisive sectarian intermediation, which fuels the junta. It is time to rejoin Lebanon to the international community and for citizen rights to align squarely with the UNDHR. That is what the majority of Lebanese citizens have expressed that they want. Will the international community help them realize it and in the process regain the Lebanon the world wants?