Esperance

Next to an arterial road in a southern suburb of Beirut, a beautiful old villa stands in the middle of a park full of Roman-era column remains. Inside, oil paintings hang on wood-panelled walls, large carpets cover the floor, the rooms are filled with delicate antiques. This used to be a rich banker’s home. Now it is the seat of the Lebanese Constitutional Council. Tannous Mechleb, the president of the court, is sitting in his vast office and can hardly be understood. The president, a melancholic-looking elderly gentleman, does not talk much, and what he says, he says quietly. All the windows are wide open. Beirut is a noisy city. It is a hot day and there is no air conditioning. There is hardly any electricity either, the fans stand still. The computers too. There are hardly any staff left, they don’t come to work anymore, they can’t afford the petrol for the drive. The villa seems almost deserted, apart from the President and Judge Mireille Najm Chukrallah, who receive us, and an assistant. The soldier guarding the door barely looks up as we pass by.

Since 2019, Lebanon has been going through something for which a suitable word yet needs to be found. A crisis? Everyone has a crisis. In Lebanon, however, the state has completely imploded in large parts, along with the economy, the currency and most of its citizens’ life chances. A state that provides public goods no longer exists in many respects. In large parts of the capital it is pitch dark at night, the street lamps are out, only the car headlights cast some light. Diesel generators are rattling everywhere, the fumes can be overwhelming. People are rummaging through the rubbish bins at the side of the road in search of something to eat. The talk of the town during my stay in Beirut, in many parts sympathetic, is a bank robbery in Hamra. The perpetrator had taken six hostages to extort 200,000 dollars to pay his father’s hospital bill. Not the bank’s money, mind you. His own. From his own account, frozen because of the state bankruptcy.

Even before the state collapse, the Constitutional Council seems to have rarely been a place of hectic activity. There were six or seven proceedings per year on average in recent years, we learn. This year there were two, so far, plus 15 election review proceedings after the elections in May. The Constitutional Council, according to Article 19 of the Constitution, is responsible for controlling the constitutionality of laws. But it can only control what either the president, the speaker of parliament, the prime minister or a quorum of at least 10 MPs submit to it within fifteen days after promulgation. In post-war Lebanon it is not majorities that decide, but the consensus of the former civil war parties, which have been dividing all positions of power among themselves for 30 years. Which means that there is usually no opposition that could have any interest in such a procedure. Thus, what is not submitted to the council is valid from then on, no matter how unconstitutional it may be. And even if a law is submitted, eight of the ten members of the Council must agree within one month to declare it unconstitutional. Otherwise, the law enters into force, too. In 2013, when the parliament approved an extension of its own term and the Constitutional Council prepared to call out this outrageously obvious constitutional violation, three members were unceremoniously persuaded to simply not show up for work until the one-month deadline expired.

In Lebanon, power is not vested in constitutional institutions, but in bosses and patrons, the so-called Zuama, who call the shots in their respective confessional communities and often used to command the respective militias during the civil war, which, along with their weapons, still form the basis of their power. The highest state offices are mostly occupied by such men, who, however, exercise these less as offices of state than as opportunities to plunder the state by every trick in the book for their own profit and that of their clientele, and to make sure that nothing happens that does not benefit or might even harm them and their own.

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What is to be done? Take to the streets? Overthrow the government? In 2019, the whole country did exactly that in protest against the taxation of Whatsapp, for many the only affordable way to stay in touch with the millions of emigrated Lebanese around the world. In many streets and squares the asphalt is still scarred where the tyre barricades burned. Prime Minister Saad Hariri had to step down. So did, after the port explosion six months later, his successor Hassan Diab. What has changed as a result? Nothing. The power of the patrons, the Sunni Zaim Hariri’s included, remains unbroken. The head of the central bank, Riad Salameh, who has financed the Zuama regime for 30 years and most recently was instrumental in bringing about the state’s bankruptcy with a kind of interest-rate Ponzi scheme, is still in office. So is President Michel Aoun.¹⁾ Parliamentary Speaker Nabih Berri has just been re-elected. The country’s supreme constitutional principle seems to be that never ever anybody can be held responsible for anything. Whom do you hold responsible for that, and how?

*

What is to be done? Enforce the law? Bring the scoundrels to justice? Among the many proud historical pasts Beirut is looking back on is a legal one. Berytus Nutrix Legum: Beirut, Mother of Law, boasts the city’s coat of arms. In antiquity, Beirut was one of the most important schools of law in the Roman Empire; large parts of the Codex Iustinianus were written here. Today, quite different things feed on the Nutrix. It does happen that the judiciary initiates investigations against corrupt politicians and state officials, for example against the head of the central bank, Riad Salameh, and his brother, who are also being investigated by Swiss prosecutors. But because positions in the judiciary, like all important public offices, are awarded according to the rules of the Zuama system, it is easy for the suspected politicians to brand the investigations as politically motivated. Ghada Aoun,²⁾ the chief prosecutor of the Mount Lebanon district³⁾, who last year launched investigations into Prime Minister Najib Mikati and a bank involved in the Salameh affair, is a Maronite Christian. The country’s Attorney General Ghassem Oueidat, who went out of his way to obstruct and terminate this investigation, is Sunni (as are Mikati and Salameh). That makes it possible to frame the whole process as part of the incessant political conflict between the confessional groups that the Zuama system has been reproducing for so long, to the effect that no-one is talking about the crimes any more that are actually being investigated in the first place.

Even the port explosion in 2020, a catastrophe of immeasurable proportions, still remains uninvestigated after two years, and it looks as if it will be for a long time to come. Judge Tarek Bitar, who is leading the investigation, is being bombarded with motions to remove him by the very politicians whose actions and omissions he is supposed to investigate. As long as no decision on these motions has been made, he cannot continue his work. However, the Court of Cassation, which would be in charge of making that decision, is unable to because several vacant judgeships have not been filled and the necessary quorum is no longer met. In order to be able to fill these vacancies, a number of ministers have to sign, including the Minister of Finance. Who is from the Amal movement, Hizbullah’s closed ally. And refuses his signature. The port, as well as in the airport and a large part of the border, is controlled by Hizbullah.

The head of the Central Bank, Salameh, is now also benefiting from this blockade tactic. The Beirut prosecutor Ziad Abu Haidar, now in charge of the investigation, is actually regarded as someone close to his camp from whom he does not have much to fear. Nevertheless, he has now requested that Abu Haidar’s jurisdiction be reviewed. That would again be the task of the Court of Cassation, which for lack of quorum cannot decide. Thus, for the time being, the investigations are blocked, which should be very convenient for both Salameh and Abu Haidar.

We have an appointment with a judge close to the Supreme Judicial Council. That body had sided with Attorney General Oueidat last year and ordered Judge Aoun to obey his order, illegal or not, to stop the investigation. The Supreme Judicial Council is based in the Palace of Justice, a rather un-palatial building in the south-east of Beirut full of dark corridors where countless people wait more or less patiently for justice. We don’t take the elevator, it often gets stuck, and it can take a long time for the electricity to return. The judge, a bald man with dark rings under his eyes, looks nervous. He has brought a colleague, who sits next to him and speaks little. He had asked to see our questions in advance. Now he works through them one by one: what the Council does, what powers it has, how the independence of the judiciary is safeguarded. An office servant comes in and brings coffee. When I ask the judge how much trust the independent judiciary still enjoys among the population, he suddenly becomes emotional. “What more can we do?” he exclaims. He has not yet received a salary this month, and yet he has turned up for work! Lebanon’s judges, he says, are resilient and ready to resist. La resilience, he says, c’est la resistance! “We are in resistance!”

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What is to be done? Reform the institutions? Strengthen the independence of the judiciary? Ex-Minister of Justice Marie-Claude Najm, who took office after the revolution in 2019 and resigned in protest after the port explosion in 2020, had introduced a bill in parliament to make the civil and criminal justice system stronger and more independent. The focus is on the Supreme Judicial Council. Currently, half of its ten members are directly nominated by the government, three are ex-officio members (including Attorney General Oueidat)⁴⁾, and only two are elected by the judiciary itself. Eight of its ten members thus depend on the government. Whoever controls them controls who becomes what in the judiciary.

The draft law wants to change that: In future, all but the ex-officio members are to be elected directly from the judiciary. In addition, there are to be rules in future for the Attorney General’s interventions so that they can be legally reviewed. Assuming this reform ever passes parliament: that would certainly be better than the status quo. But will it be enough? According to the Venice Commission of the Council of Europe, which published an opinion on the draft law in June, even after the reform, the influence of the Minister of Justice on the appointment of the three ex officio members of the Supreme Judicial Council and on the initiation of disciplinary proceedings against judges would remain inexplicably high.

*

What is to be done? Constitutional reform? Secure the key institution of the Supreme Judicial Council directly in the constitution and thus remove it from the grasp of the parliamentary majority? That would be the recommendation of the Venice Commission. There are also well-wrought proposals for the reform of the Constitutional Council. Issam Sleiman, Tannous Mechleb’s predecessor as president of this institution from 2009 to 2019⁵⁾, has made a proposal. He has invited us to his flat southwest of Beirut. Coffee, biscuits and pineapple juice are served. President Sleiman hands me a booklet,⁶⁾ in which he elaborates on his proposed amendments. The Constitutional Council’s control over the constitutionality of laws, it says, has been “amputated” (p. 8). Political gridlock, caused by divergent readings of the constitution, cannot be dissolved by the Constitutional Council. Therefore, the function of the Constitutional Council to interpret the Constitution must be explicitly stated in Article 19 of the Constitution. In addition, the Constitutional Council must be involved ex officio in certain legislative matters, such as electoral law. Finally, parties in legal disputes would have to be given the right to challenge the constitutionality of laws, and the courts would have to be given the competence to refer that question to the Constitutional Council.

Institutional design matters. Whether political disagreements are decided by power, money and force or through a democratic process based on the rule of law depends also on whether these procedures are available in the first place, and how robustly they are made. But the chances of realising these and other proposed improvements depend in their turn on institutional design. Which, in the case of Lebanon, makes any sort of constitutional reform against the will of the government radically unlikely. Parliament can initiate a constitutional amendment, but the bill must be presented by the government. If it refuses, it ultimately takes a three-fourths majority, a dissolution of parliament, a new election and a new parliamentary resolution for it to be obliged to comply (Article 77 of the Constitution).

I meet with Wissam Lahham, a political scientist and constitutional expert who works for Legal Agenda, a well-respected independent human rights think tank, in a café in Badaro, a predominantly Christian neighbourhood near the city park. As we enter, a man stands up and greets him. An MP, I learn. One of the 13 new independents elected to parliament in May. Wissam Lahham’s constitutional expertise is in high demand at the moment.

Wissam Lahham, however, does not think much of the constant invocation of the constitution. The Zuama often are rather fond of constitutional talk, he says. Nabih Berri, the 84-year-old arch-Zaim, head of the Shiite Amal Movement and speaker of parliament for the last 30 years, talks incessantly about the constitution. He claims the task of interpreting it for the parliament he presides over.

Wissam Lahham thinks even less of the constant lament about the sectarian division of the population as the alleged root of all problems. The fact that people belong to strong communities that define themselves by their religious affiliations is a social fact that a liberal constitutional order must come to terms with. Those who blame confessionalism for Lebanon’s problems understand nothing, he says. It is not the people with their social ties who are to blame for the misery, but the mobsters and war criminals who control and occupy the highest offices of state without exercising the responsibility that goes with it. They belong in prison. As simple as that.

*

What is to be done? Is there hope? Espoir? Non, replies the judge of the Supreme Judiciary Council. Esperance? Oui. In English, that distinction is inexistent. Not in Arabic, though: Al-amal (oh, the irony…) is the hope that something will change. Ar-rajá is the hope in, well, what? In God? The judge makes a gesture as if he were clinging to a rope coming from above. Esperance.

In addition to the people mentioned in the article, I would like to thank Dany Ghsoub, Assaad Thebian, Sophia Schroeder, Rima Husseini, Matthias Voigt, Paul Touma, Antoine Kanaan, the editors of the Lebanon Law Review and especially my hosts Philipp Bremer and Paul Saadeh from the MENA Rule of Law Program of the Konrad Adenauer Foundation, who provided invaluable help in organising meetings and understanding what I was told there. 

The past two weeks on Verfassungsblog

… summarized by PAULINE SPATZ:

Can EU member states put a blanket stop to Schengen visas for Russian nationals? The debate is being conducted with great passion. We document it in the blog symposium “European Visas for Russian Tourists?”. DIMITRY VLADIMIROVICH KOCHENOV & SURYAPRATIM ROY recognise in the demand the outdated World War I construction of the “enemy alien” and see it as a stress test for the rule of law in the EU. SARAH GANTY considers it not only ethically wrong but also illegal under the current Schengen rules. FRANCESCO NICOLI thinks the opposite is true: there is no absolute right to travel through the EU. For STEFFEN MAU, the purely legalistic argumentation obscures the fact that the law has always been also an instrument for enforcing political interests. MERIJN CHAMON finds it hardly tenable to argue that the EU (secondary) legislator is in any way bound by the ratio legis of the current Schengen visa system. And JONAS BORNEMANN advises caution and suggests that EU visa law does not lend itself to an unequivocal answer as to whether such a travel ban may be compatible with Union law or not.

Heat and drought characterise the summer of 2022. Despite all the disillusionment, says ANDREAS BUSER, climate protection law has more teeth than many believe. The pivotal Carême climate case before the European Court of Human Rights will now be decided by the Grand Chamber. MARTA TORRE-SCHAUB on what sets this case apart from other climate cases and the how human rights can be protected in a world on the brink of exhaustion.

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The dispute over Gerhard Schröder’s former chancellor’s office exposes the unresolved questions in the demarcation of private and state spheres in constitutional law. SOPHIE SCHÖNBERGER explains why the former Chancellor’s lawsuit against the Bundestag has no chance of success. SVEN JÜRGENSEN takes the case of Gerhard Schröder as an opportunity to shed light on the principle of responsibility: A theory of constitutional law that does not know how to deal with the responsibility dimension of political offices reveals that it has no concept of the normative.

The German government has presented a draft for a law for the protection of whistleblowers. ROBERT BROCKHAUS, SIMON GERDEMANN & CHRISTIAN THÖNNES consider it better than what we had before, but still incomplete.

The European Commission wants to oblige internet services to combat sexualised violence against children. The most controversial feature is “chat control“, which allows surveillance of all digitally sent content. MATTHIAS BÄCKER & ULF BUERMEYER comment on the proposal. ERIK TUCHTFELD sees a blatant violation of the Charter of Fundamental Rights.

The Court of Justice of the European Union has found that refusing family reunification must be open to judicial review with a legal remedy. ANNE PERTSCH & ROBERT NESTLER explain what the ruling entails for the EU Commission’s plans to significantly reduce the number of legal remedies in the revised EU legislation

After an unsuccessful attempt at reform in 2015, the European Parliament has launched a second initiative for a far-reaching reform of electoral law – also with little prospect of success. THOMAS GIEGERICH describes the entanglement trap of European electoral law.

In Bulgaria, a regional court of first instance has approved the extradition of Russian citizen Alexey Alchin to Russia at the request of the Russian prosecution. Alchin had burnt his Russian passport during an anti-war demonstration. Russia is now seeking extradition on trumped-up charges – and could succeed. Another “red flag” of the Bulgarian rule of law, says RADOSVETA VASSILEVA.

In Poland, the opposition could win next year’s election – raising the question of whether and how the Constitutional Court, hijacked by the current PiS government, can then be repaired. WOJCIECH SADURSKI believes that it is imperative to reconstitute the entire court. The three so-called anti-judges and their involvement in the administration of justice contaminated the whole court like a spoonful of tar in a barrel of honey. As far as the judiciary in general is concerned, the rule of law crisis, despite the alleged abolition of the disciplinary chamber, is far from being solved. The main reason is that the status of judges appointed at the request of the National Judicial Council is unclear. MARCIN SZWED reports on the latest developments in the Supreme Court’s review of judicial independence.

The fallout from the US Supreme Court’s Dobbs v Jackson Women’s Health Organisation ruling will be felt for a long time to come. JOLYNN DELLINGER & STEPHANIE PELL take a look at a future where women are forced to give birth. In the EU, the European Parliament is calling for the right to abortion to be included in the Charter of Fundamental Rights of the European Union. IVANA ISAILOVIĆ argues that the EU needs a structural response to anti-abortion laws.

In Brazil, the National Congress recently passed the Constitutional Amendment no. 123, nicknamed the “Kamikaze Bill” due to it budgetary impact. It qualifies the current situation – inflation, rise of gasoline price, shortage of goods, pandemic to name just a few – as an emergency, creating financial and tax benefits for biofuel producers and providing welfare payments for part of the population. The “Kamikaze” bill is fiscal suicide, says GUSTAVO DELVAUX PARMA. A populist measure for sure, but is it unconstitutional, too?

The past two weeks we have hosted a blog symposium on Longtermism and the Law, an outcome of the presentations at the 2022 Multidisciplinary Forum on Longtermism and the Law, co-organized by the University of Hamburg and the Legal Priorities Project. ERIC MARTÍNEZ & CHRISTOPH WINTER, MATTHIJS MAAS, GARETH DAVIES, AMMAR BUSTAMI, ONDREJ BAJGAR & JAN HORENOVSKY, OREN PEREZ, RENAN ARAÚJO & LEONIE KOESSLER, SIVAN SHLOMO-AGON & MICHAL SALITERNIK, DANIEL BERTRAM, ABBIE-ROSE HAMPTON, ERNST-ULRICH PETERSMANN, SHIN-SHIN HUA & HAYDN BELFIELD (twice), MARK ECCLESTON-TURNER, CHRISTOPH BUBLITZ & CHRISTOPH WINTER and ANDREW STAWASZ & JEFF SEBO discuss the role of law in sustaining and improving life hundreds or even thousands of years into the future.

So far, so good. That was indeed a long read after a long summer. I hope we haven’t overtaxed your curiosity. In any case, if you have actually read this far, you have my utmost respect. But you do anyway, you know that.

See you next week!

Max Steinbeis