Right of Disabled to Working in Lebanon: Complicity and Non-compliance
On February 13, 2017, the Lebanese State Council’s first chamber issued a final decision on guaranteeing disabled people’s right to work in the private sector. The decision obligated the National Social Security Fund (NSSF) to verify the compliance of medium-sized and large businesses with the obligation to employ disabled persons. It also barred the NSSF from issuing quittances in cases of violation, and obligated the Ministry of Labor to collect fines from the large businesses in violation.
This decision related to two cases that the Lebanese Physical Handicapped Union (LPHU) filed as part of a strategic attempt to effectuate, via the judiciary, the rights guaranteed by the Disability Rights Act No. 220/2000. Article 74 of this law obligated private-sector employers who have at least 30 workers to employ disabled persons in accordance with specific ratios (one for a staff of 30 to 60 workers, or 3% for a staff of more than 60 workers). This article also barred the NSSF from granting quittances to businesses in violation. This legal orientation was justified on the basis of the state’s desire to shift the disability issue from the logic of charity to the logic of rights, and from the logic of care that sequesters to the logic of citizenship and integration. But the executive branch and the NSSF have yet to put these rights into effect. They make several excuses, the most important being the absence of applicatory decrees.
In the first case filed against the state, the LPHU contested the Ministry of Labor’s implicit rejection (i.e., its two-month-long silence) of the former’s request to impose fines on employers violating the obligation to employ disabled people. In the second case, filed against the NSSF, the LPHU contested the NSSF’s implicit rejection of the former’s request to repeal memorandum no. 300, which allowed quittances to be granted to employers in violation. In both cases, the administrative bodies’ arguments were frivolous, which is another sign of the public administrations’ systematic violation of the “honorable litigant” principle.
Deviating from the “Honorable Litigant” Principle: Adding Insult to Injury for Marginalized and Wronged Groups
The term “honorable litigant” refers to the duty of the various public sector administrations to follow specific rules in defending their viewpoint. The most important of these rules include that the administrations depict the facts relating to the case against them honestly, and interpret the legal provisions that apply to these facts faithfully. The administrations must therefore avoid any argumentation that is senseless, fraught with contradiction, or based on false facts or easily refutable. Such behavior is a deviation from the principle of public administration impartiality and a fraud against the judiciary and the citizens’ rights to litigate. It also often reveals disdain and disregard for citizens’ rights and the principle of legality.
The violation of this principle becomes especially abominable when it occurs in cases relating to the rights of groups that suffer perpetual scorn and injustice, and resort to the courts to claim justice. In these cases, any such stance adds insult to injury.
Unfortunately, the public administrations’ defense in these two cases pertaining to disabled people’s right to work in the private sector revealed many of these flimsy stances. Here are two examples illustrating this behaviour.
Firstly, the NSSF argued that Article 74 of the law issued in 2000, which explicitly and unambiguously prohibits it from issuing quittances to employers in violation, does not do so. Its reasoning was that a law issued about 18 years before the 2000 law, namely law 24/8219, enumerated the cases wherein it cannot issue a quittance and it did not mention violation of the obligation to employ disabled people. To give this obviously flimsy defense some weight in the eyes of those that lack legal expertise, the NSSF’s legal team had no qualms about infusing its defense with legal principles obviously unrelated to the matter at hand. According to the NSSF, a general law (the Disability Rights Act) cannot be applied when a specific law exists (as is the case regarding the regulation and granting of quittances), even if the “general” law is specific in nature because it relates to the rights of a certain group, and even if it came after the specific law and includes a clear and explicit clause prohibiting the NFFS from a certain action. Of course, we need not comment further.
Secondly, the NSSF argued that the case against it had no subject matter as the contested memorandum (no. 300), which allowed quittances to be granted to businesses in violation [of the Disability Rights Act] was for a set period (six months); when the memorandum expired, a previous memorandum wherein it declared compliance with the Disability Right Act would re-enter into effect. This stance is egregiousness for two reasons: firstly, by adopting the stance, the NSSF contradicted its abovementioned argument whereby it claimed to be free from any restriction in regard to disabled people’s rights; secondly, and more importantly, it contradicted the reality of its conduct, namely the granting of quittances without verifying compliance with the Disability Rights Act.
The Excuse that an Executive Decree is Needed Collapses
Since the Disability Rights Act was issued, the excuse that the government must issue a decree specifying the implementation mechanisms –for many of the rights that it recognized to be established– became commonplace. Consequently, these rights never entered into effect, and disabled people were left waiting almost indefinitely for one decree or another. To them, the 2000 law, which they had applauded, seemed to be in reality no more than a declaration of intent. The state –specifically the Ministry of Labor– repeated this argument, claiming that “the law contained no explanations of the qualifications required of the disabled person whom the employer has an obligation to employ”.
The State Council refuted this argument completely pursuant to the principle that a “new law and the provisions it includes are effective and directly applicable and hence binding for all bodies, parties, and persons”. Upon securitizing the case, the State Council found no justification for deviating from this principle. The provisions of Article 74 are “clear and explicit in their definition of private-sector employers’ obligations to allocate jobs to disabled persons; [said provisions] also defined the penalty that the Ministry of Labor imposes upon them should they neglect this obligation”. Furthermore, the article did not explicitly mention that its implementation is contingent on the issuance of executive texts. To further support its decision, the State Council explained that the qualifications [required] of the disabled person should be determined via coordination between the National Employment Office (to which requests to recruit handicapped persons are submitted) and the employers, in light of the nature of the job to which the recruitment request pertains; there is no need for an executive decree. This stance is consistent with the advice that the Legislation and Consultation Committee issued in 2005.
This decision is in the same vein of the stance that the Civil Service Council (CSB) adopted after a long period of confusion surrounding disabled person's’ right to work in the public sector. For years, the CSB did not allocate public-sector jobs to disabled people even though Article 73 of the law imposed a 3% quota. It argued that a decree must be issued defining the jobs that disabled people may perform based on disability type and the nature of each job. However, it eventually became clear that this argument, which had been portrayed as definitive and caused a broad group to be deprived of its rights for more than a decade, was banal and incorrect. This was very clearly expressed by the transformation in the CSB’s stance beginning in 2010, when it affirmed that it is holding [employment] contests wherein disabled people may participate “as long as the disability does not prevent the candidate from competently and properly performing the tasks of the job being applied for”. Similarly, in 2011, the CSB and the Ministry of Social Affairs announced the establishment of a mechanism for applying the 3% quota in the public sector because it is “the state’s sector and its responsibility; the state is supreme therein and must set an example for private businesses in the application of the law”. This mechanism involved reserving percentages of the jobs for disabled persons who pass the exams, without having to satisfy additional ranking requirements.
No General Budget Since 2005: An Excuse Worse than the Misdeed
The state’s most egregious argument was that, “to apply the provisions of Article 74, two clauses must be added to the general budget –one pertaining to the fines collected [from those who violate the act], and another pertaining to the unemployment allowance– and doing so is presently impossible because no general budget has been passed since 2005”. The Ministry of Labor thus exploited the constitutional violation that consecutive governments and parliament have committed by not passing general budgets, to absolve itself of its responsibility to guarantee disabled people’s right to work. The State Council’s response was definitive: “The stated reason cannot be a justification for the Minister of Labor’s failure to perform its duties and collect the legally stipulated fines from infringing employers...via collection orders issued for this purpose. It is up to the Ministry to attend to the accounting and administrative tasks associated with this matter, just as it has done for the other fines, fees, and amounts that it has collected throughout the years wherein no budget was passed.”