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.