The Lebanese Legal System and Research
By Firas El Samad
Firas El Samad graduated from the American University of Beirut in 1994 with a BA in political science and public administration, obtained a law degree from the Lebanese University in 1995, graduated from the University of Montpellier I in 1997 with a DEA (Masters Degree) in Economic Law, and graduated from the University of Montpellier I in 2000, receiving a Doctorat en Droit Prive, (PhD). Firas served as lecturer at the Lebanese University in Beirut from 2001 through 2007. He is serving as the managing partner of Zulficar and Partners, a law firm that has been formed in June 2009 by a group of 7 partners and 20 associates who have decided to split from Shalakany Law Office, the Egyptian member of Lex Mundi. Firas El Samad has participated in many conferences and completed several training courses in IT law, Anti-trust, leadership and management (Cairo- Montpellier- Cambridge- Monterey CA).
Published November/Decembe 2008
Table of Contents
Lebanon is located in the western part of Asia, bordered by Syria to the east and north, Israel to the south, and the Mediterranean Sea to the west. Lebanon has a population of around four million people, and an area of 10,452 sq. km, and hence counts among the smallest countries in the region. Beirut, the capital city of Lebanon, contains approximately half of the Lebanese population and is located towards the middle of Lebanon’s 220 km coast. Despite its small size, Lebanon has figured prominently on the world stage for a diversity of reasons, not all of which are good. Lebanon has and has had immense cultural influence on its Arab entourage, as the Lebanese society is considered to be one of the most liberal in the region with its strong western ties, particularly with its former colonial ruler, France.
Lebanese individuals are also known to be natural-born entrepreneurs. The Lebanese community living abroad consists of approximately 15 million people, almost four times the Lebanese population living in the homeland, and is considered in its respective host countries as an economic force to be reckoned with.
Lebanon is mostly known for its civil war (1975-2000) which took the lives of more than 200,000 people. Following the war, Lebanon witnessed a period of calm and prosperity up until the assassination of its prime minister, Rafik Hariri, in February 2005. In the aftermath of the assassination, civil unrest and demonstrations, coupled with a strong international pressure, led Syria to withdraw its troops from Lebanon after almost 20 years of presence. Since that time there has been significant political unrest, with an Israeli invasion in 2006, dozens of politically motivated assassinations, and many sectarian clashes; in short, the political situation in Lebanon is considered to be volatile and highly unstable.
The Lebanese legal system is based on and inspired by the French legal system. Just like France, which occupied Lebanon until 1943, Lebanon is considered to be a civil law country and possesses its own set of codes. The most notable code is the “Code of Obligations and Contracts” promulgated in 1932 during the French Mandate. The COC, as it is known among law students, is the equivalent of the French Civil Code except for matters related to personal status (heritage, marriage, divorce, etc.), which are governed by a separate set of laws designed for the different sectarian communities. For instance, the Islamic personal status laws are inspired by the Islamic Sharia’a, some of which were promulgated during the Ottoman rule (ending in 1918).
Although a civil law system, the courts in Lebanon are not reluctant to follow established precedents, which are usually set in place through landmark rulings by the Court of Cassation. In addition to this, one can find many court rulings that are based on precedent established in France or in Egypt, the two most influential legal systems in Lebanon.
As a politically unstable nation which is surrounded by hostile regional forces, Lebanon requires very strong laws for the purpose of national defense. Following the Israeli invasion of Beirut in 1982, legislative decree number 102 of 1983 set a strategy for national defense and instituted mandatory military service. This law is now being revised in the context of a national dialogue that aims at setting a new strategy, which would enable the state to make use of the paramilitary resistance currently controlled by Hezbollah to defend Lebanon against Israel.
Despite the best efforts of certain civil society organizations, Lebanon still makes use of the death penalty to sanction certain severe crimes.
There have been also serious, but so far fruitless, efforts aiming to allow people to opt for civil marriage as an alternative to the currently mandatory religious marriage. These efforts are intended to promote secularism, or at least minimize the impact of sectarianism which is a prominent source of conflict and which precipitated sectarian violence and the civil war.
According to the Constitution, which was amended on the 21st of September 1990 through the so-called “Taef Agreement,” which put an end to the civil war, Lebanon is an Arab country by allegiance and identity and is a founding member of the Arab League. Lebanon is also a parliamentary democracy with a liberal economy that promotes and guarantees personal freedom.
Despite the fact that the Constitution explicitly sets as an ultimate national aim the abolition of political sectarianism, Lebanon is governed by a customary rule which provides that the three key positions in the State are distributed among the three main sects: The President must be a Christian Maronite, the Prime Minister must be a Sunni Muslim, and the Speaker of the House must be a Chia’a Muslim. Although this rule has been in place since Lebanese independence in 1943, the constitutional amendment of 1990 altered the functions and authorities of each of the respective positions in order to restore a balance dictated by the demographical evolution of the Lebanese population.
When the Lebanese State’s geographical boundaries were set by the French Mandate back in the 1920’s, the Maronite Christians (who follow the Catholic Church in Rome) were meant to form the majority of the Lebanese Population (60%). Thus, the President of the Republic, who is intended to be the representative of the Maronites in the government, has been granted wide powers in order to reflect the Maronites’ demographical dominance. Because of the concentration of power in the presidency, constitutional law experts have seriously questioned the Parliamentary nature of the regime, and instead counted Lebanon among the countries with a presidential regime.
By the late 1950’s, due mostly to their wealth, education, social status and high emigration rate, the Maronites were no longer the demographic majority, yet they kept their political privileges as a result of the President’s wide powers. It is believed that this is what sparked sectarian unrest in 1958 and, along with many other factors, led to the civil war of 1975.
In 1990, the Maronites conceded that the demographic balance has shifted in the favor of the two other main sects: the Sunnis (now 29% of the population according to a recent poll) and the Chia’a (almost 29% according to the same poll). Therefore, the constitutional amendment of 1990 distributed more powers to the Prime Minister and to the Speaker of the House.
In the same spirit, the Constitution also came to provide for a distribution of the seats in the Parliament on the basis of sects, albeit for a transitionary phase, on the basis of the new demographic situation: Christians are no longer entitled to 60% of the seats in parliament, as the seats are now evenly divided between Christians and Muslims. Ministries and public offices must also be allocated proportionally among sects.
The official language of the State is the Arabic language, whereas the French language is considered as an alternative official language to be used whenever determined by the Law.
The legislative Branch consists solely of the Parliament and is in charge of legislation and the issuance of laws. The constitution acknowledges that the Parliament is constituted on the basis of sectarian distribution, but provides for the creation of a Senate once the nation achieves its declared goal of abolishing sectarianism and the Parliament is elected independently from the sectarian distribution. In the Senate, all the sects would be proportionally represented. The Senate would then be mandated to decree only on “fundamental” issues.
The Parliament convenes during two ordinary cycles (The first Tuesday after the 15th of March- 31st of May/ The first Tuesday after the 15th of October-31st of December). The majority of the deputies must be present to secure a quorum for each session and decisions must be taken by 50%+1 of the votes.
The deputy is granted immunity from court for the opinions he expresses and the ideas he promotes.
The President is the head of the State, presides over the high council for national defense, and is the ultimate commander of the armed forces.
The President is elected by a two-thirds majority of the deputies in the Parliament. If such majority is not secured during the first round, then an absolute majority would suffice for his election in the second round. Historically, and due to the particular complexity of Lebanese politics, all the Presidents since independence were elected by the quasi-consensus of the deputies present in the election session. In other words, Lebanon has never witnessed a close presidential race; in effect, one candidate has secured and overwhelming majority of the votes before even entering the election session.
The President is limited to one term of six years. However, for various reasons, two of the last four presidents have served for 9 years each, by virtue of two constitutional amendments dictated allegedly by the Syrian influence in Lebanon. As for the two other presidents, one was assassinated on the day he was supposed to be sworn in back in 2000 (Mr. Mouad) and the other one has just been elected in 2008 (Gen. Soliman).
A President may run for office again after the lapse of 6 years from the end of his term.
The President promulgates the laws adopted by the Parliament. He may also negotiate international treaties on behalf the State, subject to the ratification of the Council of ministers or the Parliament as the case may be.
The President nominates the Prime Minister after mandatory deliberations with the deputies and the Speaker of the House. He also approves, with the Prime Minister, the composition of the Council of Ministers. He may also request the Council of ministers to dissolve the Parliament and to hold new elections.
The Prime Minister
The Prime Minister is the actual head of the Executive Branch; he presides over the Cabinet and is its spokesman, and is responsible for the implementation of its policies.
The Prime Minister is the deputy commander of the high council of national defense. His powers and responsibilities include the following: he selects the ministers in coordination with the President, sets the Cabinet’s policies and strategies and presents them before Parliament, convenes the Cabinet and sets its agenda, and coordinates the work of the different ministries in accordance with the adopted strategies.
The Council of Ministers or the Cabinet:
The Council of Ministers is in charge of the executive functions of the State. Among its powers are; setting policies, implementing rules and regulations, appointing public servants, dissolving the Parliament based on the request of the president or in some other specific cases, setting the budget, etc.
The Cabinet is considered dissolved by law in the following cases: resignation or death of the Prime Minister, loss of one third of its members, the start of a new presidential mandate, the start of a new parliamentary mandate, or impeachment by the Parliament.
The Constitutional Council
The Constitutional Council is mandated to ensure that laws conform with the constitution, and to consider and rule upon any claims related to parliamentary or presidential elections.
The Administrative Court
The highest administrative court is the Shoura Council, which is mandated to assist in drafting and reviewing of the legislation to be promulgated by the Legislature, and to serve as the highest administrative Court in charge of reviewing the decisions of the lower first degree administrative courts.
The Civil Courts
Civil courts are divided into:
First degree courts, which are constituted by one Judge or a panel of three judges, and are in charge of examining civil law claims. The “one judge courts” usually examine claims of a lesser value than the ones examined by the “three judge panels”.
Courts of Appeal, which are based in each governorate, and are mandated to serve as a second degree court reviewing the decisions of the lower court.
Court of Cassation, which serves as the ultimate judicial recourse, reserved to review cases of a certain value/importance.
The Commercial Courts:
Fall under the same category as civil courts but are competent in ruling over commercial matters.
The Criminal Courts:
Same structure as the Civil and Commercial Courts, but with a certain particularity: The first degree courts are in charge of examining felonies and misdemeanors subject to the review of the Court of Appeal.
The Court of Appeal serves as a second degree court for felonies and misdemeanors and as a first degree court for the more serious criminal offenses subject to the review of the Court of Cassation.
The Personal Status Courts:
They are constituted of members of the clergy and are in charge of ruling on personal status cases exclusively for the members of their own sects. The rulings of the Personal Status Courts and their decisions are subject to the review of the higher Civil Courts.
- Al Adl publication: a periodical publication which contains references to jurisprudence and court decisions
- Hatem Publication: a periodical publication which contains references to jurisprudence and court decisions.
- Official Gazette: the official publication which includes legislation and administrative decisions