Constitutionality In The Eye Of The Beholder

Nabih Berri

Guess Whose Eyes Are These

The political system is established on the principle of separation of powers, their balance and cooperation.

Three weeks ago, Lebanon’s highest judicial court, the constitutional council, stood there silently, watching an illegitimate and unjustified extension of the parliament’s term. There’s nothing worse than having a paralyzed constitutional council in a country. What was supposed to be incorruptible, unreachable by politicians, the last hope to halt  tyrannical laws – a council dissolving illegitimate senates in Egypt and capable of impeaching presidents – turned out to be a political property as it even failed to convene; two judges were loyal to Berri and another was loyal to Jumblatt. To be fair, the council’s president that was against the extension, also turned out to be a relative of the Lebanese President. Meaning that any decision – with or against the extension – would’ve been a political one rather than a purely independent judicial one. In Lebanon you can call it sharing power,  expanding an influence or even rewarding a loyal supporter with a civil servant post. In other countries, it’s called corruption.

No True Separation

The quote at the beginning isn’t from the Universal Declaration of Human Rights, but from the Lebanese Constitution, its preamble, article E . So what defines a democracy? Separation of powers does play a role, at least according to Montesquieu. It prevents a single body from usurping all the powers, or even corrupting and paralyzing the two other bodies.

When half of the constitutional council members are named by the parliament and the other half is the government’s share, is it truly an independent judicial power? When the parliament – that already has immense powers of electing the President, the PM, giving the government the confidence, and indirectly ruling everywhere – fails to form a government and starts surpassing its legislative authority by voting laws with no government in power, by extending civil servant terms – a purely executive right – and by having the third of the previous cabinet as MPs, wouldn’t be considered usurpation of power rather than separation and cooperation? Would an MP give a no-confidence vote if he were the minister? Is it anything but merging the three branches of the state? If there was still one thing to be proud of in this country, it was the separation of powers between the government, the judiciary, and the parliament. Even that turned to be an illusion.

Berri’s Double Standards

Constitutionality is in the eye of the beholder. Back in 2007, when the speaker refused to call for a parliamentary session (thus paralyzing the parliament), he argued that the government was not legitimate because it did not have Shia ministers. For him, the government was not considered as a functioning executive power anymore, and the parliament – selon l’usage – cannot usually convene to vote laws with no executive authority in power, because forming a government has the priority over voting laws so that the country avoids power vacuum. I have always criticized politicians for their double standards (see here). Today is Berri’s turn: If there is one undeniable and irrefutable political  fact today, it is that the Mikati government is a caretaker one, with no authority, and even less legitimate than the Siniora government that was present in 2007, for even if Siniora’s legitimacy was questioned, he did not resign and stayed in his post till 2008.

Just one simple innocent Moulahaza: The speaker paralyzes the parliament for 18 months because 7 ministers resign, but when the government officially falls, he is so eager to call for a session in three consecutive days, with 74339240032 draft laws on the agenda – without forgetting that a postponement of the elections and an extension of the mandate was also made under no government in power –  while constitutionally, the speaker is not allowed to call for a session from the end of May till the 15th of October unless the president issues a decree (article 23) .

Berri’s Point Of View

Berri considers that he has the right to call for a session because constitutionally when a government falls the parliament automatically convenes in an extraordinary session. Even if it’s not written in the constitution, the extraordinary session isn’t for legislation but for forming a government as soon as possible. However for Berri, it was understood as a green light to call for a legislating session. If he says so, why wasn’t it also understood as a green light in 2007? Apparently constitutionality is not only in the eye of the beholder, it also changes with time.

What’s Greater Than A Democracy?

There’s a video on YouTube “في احلى من لبنان” (What’s greater than Lebanon?) made by the ministry of tourism encouraging tourists to visit Lebanon. To sum it up quickly, they forget to tell you a lot of things : That the sea is probably the most polluted one in the Middle East (0:06), that the mountains are being crushed (0:20), that the sun exists everywhere in the world (0:26), that we have a  poor food quality (0:36) and that you’ll probably have gastroenteritis in a week. They don’t tell you that Baalbak, by far the most important landmark in Lebanon wasn’t mentioned because it was being shelled by the FSA, that the biggest three coastal cities are now militia hubs, and that a couple of years ago there used to be a poster of Condoleeza Rice at the airport road with the following saying beneath it:  “لا تشتري العبد الا والعصا معه”  (Feel free to to go on Google Translate). But my primary concern with the video isn’t that the Lebanese feel that sharing a video is more useful than protecting the museum  treasures,  stopping the destruction of hippodromes and old houses, watching over our coasts or even asking for a better touristic police. The world is not fool. Sharing videos from the thirties’ era won’t bring tourists to Lebanon, but working to improve and stabilize the country will. Stopping the weekly skirmishes, bringing a government to life, not destroying Amin Maalouf’s house – among hundreds of other cultural buildings taken down every day – might bring more tourists than sharing a one minute YouTube video telling us that we have sun, water, women (0:45) and food (like all the places in the world apparently)

And what is my primary problem? And how is the video related to the subject of the post? At 0:50 comes the biggest lie you might ever hear. A lie so big that even the Lebanese chooses to believe it. “What’s Greater Than A Democracy?“.

Put aside the ruling generals. Put aside the warlords that became humble civil servants. How can a country with no freedom of press, with no separation of powers, with no elections and with no government can be considered a democracy? The biggest tyranny is the illusion of democracy. When a Lebanese politician – an MP and apparently a candidate to the presidency, which by the way is supposed to be the protective post of the constitution – goes on TV and says that “What strengthens you is your strength on the ground, here in Lebanon, not what is written down in [the Constitution]”, tell me, dear reader, do you feel you’re in a democratic republic where five sheet of paper protect you and give you your basic rights wherever you go, or in an animal farm where you’ll be the prey of both the lion and the wolf?

Guess What!

Egypt is a democracy – well not really, the army just made a coup, but you get the point – and you know why? Because one year after elections, 30 millions take the streets, overthrow a democratically elected president  belonging to a religious party because of his mistakes, put the president of the constitutional council as interim president and organize early elections, only 2 years after they had removed another dictator hailing from the army.

The difference? You live in a country where you have been ruled by generals hailing from the army and religious parties for the past five decades, where the parliament elected on the basis of a gerrymandered electoral law extends his term and then starts acting like a government, monopolizing the executive power and legislative power. A country where even a constitutional council can’t convene.

In a democracy, the rules of the game are clear. When they aren’t, and the referees can’t take a decision,  constitutionality becomes in the eye of beholder. And when the constitution – that includes the written democratic principles – becomes in the eye of the beholder, it is not the constitution anymore, but rather a constitution among others.

Several constitutions do not unite one people.

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