All constitutions are flawed, even (or especially) those that are treated as particularly sacrosanct—such as the US Constitution. The recent protest movement in Lebanon, which began on 17 October 2019, has generated renewed interest in the Lebanese constitution—with a lot of what might be called “constitution talk” by both protestors and the political class. In this article, I focus on two issues that have renewed and stimulated much interest in the constitution: calls for (1) the removal of sectarian representation in parliament; and (2) a unified personal status law. I also offer a short history and ideological reading of the Lebanese constitution, stressing its contradictions. I end with a series of questions that push our political imagination beyond the constitution in its current form and toward a new social contract, one that actively responds to many of the protestors’ demands.
The Lebanese constitution was promulgated in 1926 under the French mandate. The document was key to setting up the bureaucratic, legal, and ideological framework of the Republic of Lebanon within its current borders, separate, and ultimately independent, from what became the Republic of Syria. The constitution was controversial when it was promulgated, as many Syrian and Arab nationalists refused the colonially mandated separation from Greater Syria. At the time, it was a considered political statement to insist on “Lebanese” as a national and legal identity.
Liberalism, Constitutionalism, and Transition
The Lebanese constitution is a classically liberal document, in that it sacralizes individual civil and political liberties (e.g., religion, expression, residence, due process, suffrage) and a capitalist free-market economy and private property. It is “liberal” in the ideological, and not the political, sense. This means that the freedom of residence, for example, refers to the right to live anywhere in the country, but should not be confused with the right to a residence. The liberalism of the constitution is also evident in the ways that it constitutes citizenship: individual, structurally equal, ungendered (which de facto means gendered male), and as living and acting both within the free marketplace of ideas and filiations and in the actual free market itself. Of course, as Timothy Mitchell argues, national and international “free” market economies are by definition regulated, just as individual or group “right” to freedoms implies a power structure that can proclaim, guarantee, and define those rights.
The constitution grounds the sovereignty of the Lebanese state in its people, which is defined as synonymous with citizens. The preamble to the constitution, which was also amended according to the Taif Accord, commits Lebanon to various international human rights treaties and in the eyes of some legal experts thus produces a hierarchy between international human rights law and national law. Plaintiffs and lawyers have tried to test this hierarchy by arguing that parts of Lebanese law, including aspects of inheritance, criminal, and civil law, violate international human rights law and/or the Covenant on the Rights of the Child, and are thus unconstitutional. As of yet, these cases have lost in Lebanese courts.
The 1926 constitution set up a parliamentary system of governance with strong executive powers concentrated in the office of the president. Political elites revised the constitution after the Lebanese Civil War (1975–90) to incorporate the Taif Accord, the peace agreement that ended the civil war. In accordance with the accord, executive power was further disaggregated between the president, the prime minister, and the speaker of parliament—this came to be knowns as the “troika system.” The constitution does not stipulate that the Troika system be a sectarian power power-sharing agreement. In fact, no sects are mentioned by name in the entire constitution. Instead, the sectarian distribution of these offices dates back to at least the 1943 National Pact, a power-sharing agreement between Muslim and Christian members of the political elite, dominated by Sunnis and Maronites. The National Pact is unwritten and not a part of Lebanese law; it is instead customary law or ‘urf.
The post-Taif troika system has resulted in political paralysis and institutional gridlock due to the diffusion of executive power, facilitating corruption. Therefore, it is important to note that even if executive offices are no longer distributed along sectarian lines [meaning if the National Pact and political customs are changed or abrogated], there will still be structural hiccups due to the highly diffuse distribution of executive power. The Taif Accord also expanded the number of parliamentary seats and redistributed them to create an equal proportion of those designated for “Christians” and “Muslims,” as opposed to the 6:5 ratio that had prevailed since independence in 1943.
The 1943 National Pact was the final step in the political incorporation of Muslim (Sunni) elites into a state independent from Syria. Lebanon gained its independent from French colonialism the same year, and the separate and independent and sovereign Lebanese republic came into being in 1943. Thus, although the National Pact is technically not a law, it a historical condition of the Lebanese state in its current form.
The Lebanese constitution has always treated political sectarianism as a temporary solution and in fact calls and sets measures for a national and unified, non-sectarian liberal and parliamentary democracy based on a national electoral law. The Taif Accord, in some key ways, contains within itself self-abrogating articles. It sets a roadmap for the dissolution of political sectarianism, though it does not provide a timeline to do so. This goal is elaborated most strongly in Articles 95 and 24, two of the articles of the constitution that protestors have been debating in their public discussion sessions.
Every post-Taif government has violated the constitution in that they have not legislated and enacted a national and non-sectarian electoral law, nor has a transitional plan ever been elaborated. This is a critical point that protests are emphasizing. The government, not the people in the streets, are in violation of Lebanese constitution because Articles 24 and Article 95 have yet to be implemented fully.
However, it is precisely because the Taif Accord transition to a non-sectarian state has never been implemented that the structural contradiction between the constitution and the (unwritten) National Pact has yet to be fully tested. Thus far, protestors are calling for strict adherence to the constitution and have yet to publicly discuss the National Pact and/or the principle of reserving the top political posts in the country for particular sects or religions. There are many, including protesters, for whom the end of political sectarianism does not mean, for example, ending the practice that the President of the Republic must be a Maronite Christian.
Arguably, and perhaps ironically, the greatest test of the contradiction between the constitution and the National Pact came via Michel Aoun, currently the President of Lebanon. When Aoun was still a general in the civil war, he brought the country to a crisis point when he insisted he had a right to be appointed Prime Minister (by then-president Amin Gemeyel). This “right” was based narrowly on the constitution, but broke the National Pact in the guise of a “national emergency”.
This is not the first time that Cabinets are formed in such an unconstitutional manner, but in the midst of a popular uprising and an economic crisis – Michel Aoun’s assumption of executive powers constitutionally granted to the Parliament, the Prime Minister, and Cabinet, is brazen.
While calling for the implementation of the constitution is rhetorically powerful for the protestors, we must be clear-eyed about what kind of sociopolitical contract the constitution actively produces. The constitution, for example, will not solve the economic crisis nor will it do anything to suffocating wealth inequality and unemployment, nor will it ameliorate the extreme class polarization within the country. Moreover, politicians have for decades claimed that political sectarianism could not be ended until the people are no longer sectarian—all the while increasing sectarian channels of access to dwindling public services. But since 17 October 2019 many have insisted that they are no longer, or perhaps have never been, as sectarian as politicians have claimed and journalists and academics have insisted. This is the grounds upon which they demand the immediate implementation of the constitution as it relates to ending the system of parliamentary representation based on sect and region.
Removing Political Sectarianism? A Unified Personal Status Law?
Lebanon has fifteen different religious personal status laws, each pertaining to an officially recognized sect and primarily overseen by the recognize religious hierarchy of those sects. These personal status laws adjudicate matters of marriages, divorce, custody, and inheritance. Multiple attempts over decades to legislate an optional civil marriage law have all failed, facing strong opposition from Sunni and Shiite religious authorities and, to a lesser extent, Christian ones.
Recently, President Aoun and his son-in-law Foreign Minister Gebran Bassile, have also called for the end of political sectarianism, the President going so far as to characterize sectarianism as a “disease.” This is not as unprecedented as people think, both for Michel Aoun himself and other political leaders throughout Lebanese history. However, while appearing to agree with protestor demands about the need to implement articles 95 and 24 of the constitution, both Aoun and Bassile added a caveat that has thus far not been adopted by the protest movement: that the first step would be a unified and mandatory civil personal status law. Only afterward, these men said, could the country proceed to ending sectarian representation in Parliament. Of course, they are in some ways correct—personal status law and sectarian representation are two sides of the same coin. Political sectarianism is a political system built on two poles: 1) Personal status law and the system of census registration it is tied to literally produces the legal and bureaucratic architecture of separate “sects” and 2) a power-sharing agreement between these bureaucratically and legally differentiated sects and citizens.
However, in arguing that there must first be a unified personal status law before moving to the removal of political sectarianism, President Aoun and the FPM reproduced a historical sticking point between mainstream Muslim and Christian positions on the nature of the state and its powers. In short, Muslim and Christian political and religious leaders have used these two principles, ending political sectarianism and a unified personal status law, against each other to effectively neutralize calls for either. The weaponization of these principles by both these (corrupt) parties draws on historical, social, and economic factors.
The French mandate’s Decree 60LR is a good place to start thinking about the personal status system. Decree 60LR calls on all religious communities to bring their personal status laws to Parliament for ratification and implementation, and it also refers to a personal status law that is for those that do not follow any religious or sectarian affiliation. 60LR was controversial and caused massive protest and unrest, leading to the French mandate expressly stating that it does not apply to Muslims. Parts of 60LR were included into post-colonial civil law and the decree is still in effect when it comes to Christian and Jewish Lebanese. The exclusion of Muslims from the jurisdiction of 60LR is why, for example, a Muslim couple that marries under civil law in a different country still fall under the jurisdiction of the Shari‘a courts, while Christian or interreligious couples do not. It is also why passing an additional (as opposed to a unified compulsory law) personal status law under the guidelines set out by 60LR is problematic precisely because people born and recorded as Muslims in the census system would not be able to opt into it. This is why people started removing their sect in an activist campaign that began more than ten years ago—so that they would be considered as without a sect and thus able to be under the directives of 60LR.
Socio-politically, mainstream Christian and Muslim political powers have leveraged ending political sectarianism and a unified personal status law against each other. While both Shia and Sunni political leaders have come out against political sectarianism (they do so knowing that they stand to gain more power in the short term due to the demographics of the country), they have never accepted to even debate the idea of a unified personal status law. As of now, Muslim religious leaders won’t even accept an optional civil marriage law, continuing to argue that Muslim marriages are civil marriages in that they are amendable legal contracts and not holy unions. Christian politicians, meanwhile, have historically been opposed to ending political sectarianism (particularly at the level of executive power) and have at times supported an optional civil marriage law. Even the Maronite Patriarchate has stated that they would accept an optional civil marriage law if their Muslim religious counterparts would—perhaps knowing full well that they would not.
The different positions taken by Muslim and Christian religious leaders on an optional civil marriage law and/or a unified personal status law are not (solely) due to differing religious interpretations and texts regarding the personal lives of Muslims and Christians. There are also economic and social factors at play. Since 1958, Christians and Jews, for example, have fallen under a civil law for inheritance called, not so vaguely, “the inheritance law for non-Mohammadans.” Effectively, this means that Shari‘a courts have more control over the estates of “their” people. It also means that Christian religious institutions have less to lose with a secular personal status law because they did not have as much jurisdiction in the first place.
The differences between a civil marriage law and a personal status law are key to understanding this debate. While a marriage law covers marriage and its effects (divorce, separation, assets, in some cases custody guidelines), personal status laws are much broader and include issues such as inheritance (for Muslims), adoption, and guardianship over minor children. To put it simply, you do not have to be married at all in order to fall under some of the stipulations of a personal status law, while you obviously have to be married to be under the jurisdiction of a civil marriage law. In other words, even if an inter-religious couple married under an “optional” civil marriage law, religious personal status courts would still have jurisdiction over issues that are not covered under that marriage law. This is why the proposition of a unified personal status law struck many as shocking; it would effectively remove all legal jurisdictions currently enjoyed by the religious establishments of all sects. On the other hand, one of the reasons why the Maronite Patriarchate in particular has been less opposed to an optional civil marriage law is because of a problem they have been discussing for years; the phenomenon of Maronites converting to other Christian sects or Islam in order to divorce and/or remarry.
Constitutional Roadblocks to Reform
In addition to the above socio-political reasons why coupling or conditioning the end of political sectarianism with a unified personal status law has resulted in paralysis on both fronts, there are structural conditions to be wary of Aoun and Bassile’s rhetoric. Namely, while ending political representation in Parliament is in the Constitution, a plan for a unified personal status law would most certainly lead to a constitutional crisis. Indeed, article 9 of the Lebanese constitution says this:
حرية العتقاد مطلقة والدولة بتأديتها فروض الجلل ل تعالى تحترم جميع الديان والمذاهب وتكفل حرية إقامة الشعائر الدينية تحت حمايتها على أن ل يكون في ذلك إخلل في النظام العام وهي تضمن أيضاً للهلين على اختلف مللهم احترام نظام الحوال الشخصية والمصالح الدينية.
On its face, the article preserves religious institutions’ right to adjudicate matters of personal status. However, some experts argue that the first part of Article 9, that “there shall be absolute freedom of conscience” implies a right to an optional non-religious law that organizes personal status affairs. But there is no doubt that the constitution grants religious institutions legislative and judicial rights. Therefore, at most, a unified personal status law that would abolish the jurisdiction of religious communities might be unconstitutional and require a constitutional amendment. At least, it would require constitutional consultations and a ruling from the constitutional court. However, citizens do not have access to the constitutional court. If they did, perhaps they would have raised to the court the law that most defies the constitutional principle of equal rights to all citizens: a discriminatory nationality law that does not give female citizens the right to pass citizenship to their children or spouses.
As Article 19 indicates, only elected and appointed politicians have recourse to the Constitutional Court (al-majlis al-dusturi). An exception is made for religious leaders when it comes to personal status and other issues, meaning that religious leaders would certainly appeal to the Constitutional Court in case a unified (or even, perhaps, an optional) personal status law is passed. The Constitutional Court itself has been politicized and its judges are appointed with a view towards sectarian and political parity. The Constitution, meanwhile, sets aside a “senate” for religious leaders, with limited consultatory powers, to be created if and when political sectarianism is abolished. This senate would arguably have the right to consult on any issue that may harm the interests of organized religion—including amendments to the current personal status system.
Given all of these structural and political roadblocks to a unified personal status law, President Aoun’s call for a unified personal status law effectively means that the FPM is basically calling for a constitutional amendment/change before implementing Articles 95 and 24 of the constitution that is already in place. There is simply no way to have a unified personal status law without falling into a potentially paralyzing constitutional crisis (to say nothing of the political crisis this campaign will create). It is a cynical attempt to drown the talk about Article 95 and a new non-sectarian electoral law, while reserving the right to blame “the other side” (in this case Muslim religious establishments) for being unable to create a secular state. This is a false attempt to delay acquiescing to demands of protestors’ demands using the language of constitutionality, law, and a civil state, while hoping that people will not notice the landmines therein.
Beyond the Constitution
While calling for the implementation of the constitution grants rhetorical, ideological, and national power to protestors, we must be clear about what kind of socio-political contract the constitution actively produces. The constitution, for example, does nothing to solve the economic crisis nor will it ameliorate the suffocating wealth inequality and unemployment that drove people onto the streets on 17 October 2019. Nor does the constitution offer a roadmap for dealing with social and economic class polarization across the country. Moreover, too much focus on constitutional reform or implementation in effect risks overpowering more radical, creative and emancipatory demands tied to Lebanon’s uprising with a series of structural reforms and processes with a years-long horizon. If this is a revolution against the dominant regime in Lebanon, then shouldn’t the constitution—a pillar of that regime—also be in play?
In addition to claiming the power of the constitution and clearly stating that the government is daily violating it, we need to think creatively and expansively about what kind of socio-economic-political system people want. The constitution must not be the horizon of political imagination. What kind of country should Lebanon be, and what form of social contract should hold it together? Should economic rights and protections against runaway capitalism be included? What constellation of political, economic, and social rights should refugees and migrant laborers be granted? Should gender equality be expressly written out in this social contract? Should the rights of the environment and/or of animals be protected? Should citizens and lawyers and civil society groups have the right to advance cases to the Constitutional Court?
The answers to these selected questions do not all require a constitutional amendment or re-writing. But they are all ways of reimagining a social contract outside a literal reading of the Lebanese constitution. Above all, knowing more about Lebanon’s laws and founding documents, as well as their history, is critical to understanding when the political class speaks performs the language of constitutionalism only in order to further defy the will of the citizenry, who are, constitutionally, the only source of Lebanese sovereignty and the legitimacy of that sovereignty.