Editor’s Note: On September 22, 2017, the Lebanese Constitutional Council unanimously issued a remarkable ruling annulling Law no. 45. The law had introduced and amended articles on taxation for the sake of funding the rank and salary scale. In annulling one law, the decision was a condemnation of decades of legislation and lack thereof. On one hand, it questioned the means by which laws are voted on. For decades, votes have occurred via a show of hands, in contravention of Article 36 of the Constitution which prevents citizens from knowing who voted for laws and who voted against them. The decision stated that voting via roll-call is not a formality but a cardinal rule in a democracy. On the other hand, it explained that the Constitution only allows the “provisional twelfth” rule [whereby the government may continue spending in accordance with an outdated budget] to apply during the first month of a new year whose budget law has not yet been issued. Given that no budget law had been passed since 2005, all expenditures and levies that have occurred since February 1, 2006, are – in light of the recent council’s ruling – illegal. Furthermore, all laws issued to prolong the validity of the “provisional twelfth” rule,  increase the reserve provisions on their budget or establish other provisions are unconstitutional. Despite the clear and profound constitutional violations, many political officials were unable to suppress their rage toward this decision. It reminded them that in any state professing democracy, there are binding rules and judicial institutions.

 

Constitutional Council Decision no. 5 of September 22, 2017, which annulled Law no. 45 that introduced and amended articles on taxation for the sake of funding the rank and salary scale, is a landmark in Lebanese constitutional life. It is the most important decision that the Constitutional Council has issued in its current composition since 2009. This article will explore the ramifications of the decision on our political system and its impact on the functioning of constitutional institutions.

Parliament is Master of Only Itself

The Constitutional Council’s decision rehabilitates constitutional precepts in the face of a political class that has made its own interpretation of the Constitution the sole standard governing the work of political institutions. The approach to governance has been accompanied by the excessive, arbitrary use of the saying “Parliament is its own master”, which renders parliament an authority that rules completely unchecked over the Constitution itself. Portraying parliament as its own master is a pretext for justifying consensus between the constituents of the ruling class by bestowing legality over every political agreement. Making such nearly-absurd claims about the total discretionary powers of parliament has gotten to the point where Parliament Speaker Nabih Berri declared that parliament legislates constitutional restrictions while not being subject to such restrictions. This claim contravenes the most basic principles underpinning constitutional law and turns Lebanon into a “parliamentary sovereignty” system like that in Britain. Britain has no constitution per the formal definition of the term, so the actions of its parliament – which occupies the top of the legislative hierarchy – are subject to no oversight. By contrast, in Lebanon the Constitution is what established parliament and granted it legislative authority to be exercised in strict accordance with constitutional principles. Hence, the correct interpretation of the saying “Parliament is its own master” is that the legislative authority should have the freedom to produce its rules of procedure itself without interference from the executive authority. Indeed, Article 43 of the Constitution states, “Parliament may produce its rules of procedure”. These rules of procedure cannot under any circumstances include anything contravening the Constitution. It must be noted however that in Lebanon, unlike France, there is no text subjecting these rules to automatic oversight by the Constitutional Council.

In light of these developments, the Constitutional Council’s decision is an important opportunity to restore proper constitutional order. As is known, the Constitutional Council’s function is not restricted to ensuring the conformity of the content of a law to the Constitution and the principles that bear constitutional value. It also encompasses the form through which that law was adopted and promulgated. A text adopted in a manner that does not respect the constitutional procedures, even if its content concords with the Constitution, is considered unconstitutional and in need of annulment.

Given the above, parliament’s adoption of Law no. 45 via a raise-of-hands vote contravenes Article 36 of the Constitution which reads as follows: “As for the laws in general, and when the issue of confidence is polled, the opinions are always expressed by roll-call, and audible.” Parliament’s rules of procedure could not be invoked to overrule Article 36 because they do not carry constitutional value and are not part of the constitutional block, as established by the jurisprudence of France’s Constitutional Council and repeated by Lebanon’s Constitutional Council. Furthermore, customary practices in parliament cannot justify voting via a raise of hands because [although] custom can supplement and explain legal text, when the latter is silent (praeter legem) it cannot in any way contravene the legal text (contra legem).

Lebanon inherited the various means of voting (a show of hands, a roll-call, and a rising vote) from the French Third Republic. France’s constitutional laws of 1875 did not specify the means of voting that must be adopted, thereby leaving it up to the rules of procedure of the Chamber of Deputies and Senate to do so. By contrast, the Lebanese Constitution of 1926 did define voting procedures, making it subject to the Constitutional Council’s oversight.

The council’s analysis went even further. It explained that roll-call votes are mainly required to strengthen transparency and the principle of accountability. Roll-call voting enables citizens to monitor the work of MPs and know their stances on the laws proposed to the legislative authority during their terms. Subsequently, the citizens can hold these MPs accountable in the following parliamentary elections.

The Budget and Legislation Procedure

The budget is considered one of the most important laws that parliaments enact. In most constitutions around the world, conditions for adopting the budget are more detailed than those pertaining to regular laws. A number of articles and books have been published addressing the “constitutionalization” of public finance in light of the evolution of the jurisprudence of constitutional courts and councils, and their adoption of a series of constitutional principles pertaining exclusively to budgets.

The Constitutional Council’s decision did not deduce new principles. In this regard, it does not constitute a development in constitutional jurisprudence or doctrine. The council merely stressed the most basic constitutional principles pertaining to the adoption of the budget, such as annuality and universality. Its statements are axioms of constitutional law. They are valuable in light of the persistent violations that the political authority – in both its executive and legislative branches – commits in this area, especially in the absence of a Lebanese state budget since 2005.

To fully understand the dimensions of this decision, we must recall the words of Parliamentary Speaker Nabih Berri in the last session convened by parliament to hold the government to account. While responding to the problem of issuing the budget before a closure of accounts law was adopted, he stated that “The Lebanese, who invented the alphabet [in reference to the Phoenician past], can find a solution to this issue”. This statement is an embodiment of the logic of political settlements that flout constitutional provisions. The Constitutional Court’s decision came to put an end to this arbitrariness by reminding the legislative authority of those principles frequently repeated in books on public finance and constitutional doctrine and taught to law students in universities.

Notably, the Constitutional Council had enshrined these principles in a previous decision, namely Decision no. 3 of July 15, 2002. It stated, “The aforementioned Article 83 [of the Constitution] clearly stipulates principles that govern the preparation and content of the budget, namely annuality, unity, universality, and non-earmarking. These are traditional principles in the science of public finance”. More importantly, the same decision stated that “it is also accepted in legislative practice that deviation from the two aforementioned principles (universality and non-earmarking) occurs in many instances”; moreover, “departure from them is common practice and often justified by the situation”. The point is that while the principles of universality (entering all the state’s gross expenditures into the field for expenditures and entering all its gross revenues into the field for revenues without conducting any adjustments against each other) and non-earmarking (not earmarking a specific revenue to cover a specific expenditure) permit many exceptions, they can only occur within the framework of a single, existing budget adopted annually.

Here, an important observation must be made so that we understand the decision’s internal logic: Law no. 45 was annulled not only because it breached the principle of the unity of the budget and the other related principles, which are subject to many exceptions. Indeed, Parliament may pass new taxes during the financial year outside of the budget. In 2002, it passed new, separate tax laws such as Law no. 379, which established the value-added tax and specified that its revenue would later be calculated and incorporated into the closing of accounts. The key problem [with Law no. 45] is that the legislator resorted to passing a large group of taxes outside, as stated in the decision, the “framework” of the budget, which does not exist to begin with. Note that the Constitutional Council did not find that the contested law violates the principle of non-earmarking, for the salaries and wages are included in the state’s general expenditures and the law’s purpose is to cover those general expenditures without earmarking a certain revenue for a certain expenditure.

The Constitutional Council tightened the noose on the contested law by stressing that levying requires the annual renewal of authorization via the budget and that spending in accordance with the “provisional twelfth” rule is only acceptable in a single month, namely January, contrary to Parliament’s usual practice of voting on a law allowing the government to extend the period of such spending until the new budget is adopted.

The value of this reasoning is that it not only calls attention to the axioms of public finance but also transcends the procedural violation related to the method of voting on the law. Had the Constitutional Council annulled the law only on account of the defect of form related to voting via a raise of hands, parliament would be able to re-vote on it verbatim but via a roll-call, thereby legitimizing all the violations related to budget principles.

Monitoring the Appropriateness of the Text?

Some people have faulted the Constitutional Council for usurping parliament’s place, especially when it addressed Article 11 and annulled it on account of ambiguous phrasing. According to doctrine and jurisprudence, every law contains a goal and means of achieving it. Some people have said that the Constitutional Council’s oversight is restricted to the law’s purpose and cannot encompass the means because they are up to the legislator’s discretion, for the Constitutional Council cannot monitor the appropriateness of the text. In other words, the Constitutional Council cannot impose its own discretionary assessment onto the legislative authority’s will.

There is no doubt that unfettered monitoring of the appropriateness of the text is impermissible. However, the French Constitutional Council has held, in multiple decisions, that monitoring the appropriateness of the means whereby the law seeks to achieve a certain aim is allowed if those means are obviously unsuitable for doing so. By annulling this law, the Constitutional Council is telling the legislators that the goal they envisaged (imposing new taxes) is legitimate, but the means of achieving it is abidance by the procedural rules related to voting and the budget, not the enactment of a special law that erodes all the foundations of Lebanon’s constitutional system. The legislative authority’s error in assessing the appropriate means for reaching its stated goal is clear. This obvious error extends to Article 11, for its vagueness prevents the Constitution Council from exercising its oversight effectively. This vagueness contravenes the principle of the intelligibility and accessibility of the law (intelligibilité et accessibilité), which the French Constitutional Council has declared an objective bearing constitutional value (objectif de valeur constitutionnelle). Complicated phrasing makes the text difficult to understand legally for the citizens as well as the courts that must apply it.

The Constitutional Council’s decision does not enshrine any new constitutional principles. Essentially, it reiterates constitutional concepts considered to be axioms. The Lebanese political system has simply gone so far off the constitutional course that calling attention to elementary principles has become an accomplishment and a pressing need.

Every interpretation that parliament produces via regular means is an unbinding political interpretation; otherwise, there would be no need for constitutional oversight. The only way that parliament may interpret the Constitution in a binding manner is the mechanism for amending the Constitution, for every interpretation entails a veiled amendment. When parliament amends the Constitution, it does so in its capacity not as the legislative authority, but as the derived constituent authority. Parliament is the master of only itself, nothing else, for in a state ruled by law, sovereignty is confined to the Constitution. This is the essence of the Constitutional Council’s decision, which is more akin to a lesson in constitutional law than a traditional judicial decision.

This article is an edited translation from Arabic.