UPDATE: The Lebanese Legal System and Research in Brief

 

By Firas El Samad

Update by Lara Eid

 

Lara Eid obtained a law degree from Lebanese University in 2006. In 2009 she received a Masters from International Telematic University (UNINETTUNO) in Italy. She speaks English, French, and Arabic. She completed legal consultancies for the Special Tribunal for Lebanon (The Hague) in 2010 and 2013. She frequently consults with NGO’s on international law issues with a specialty in refugee and migrant worker matters. She is an active member of the Beirut Bar Association Human Rights Institute.

 

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 (Master’s 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 & 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 February 2016

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Table of Contents

1.     Introduction

2.     Legal System

3.     The Constitution

4.     The Legislative Branch

5.     The Executive Branch

6.     The Judiciary Branch

7.     Conclusion

8.     Further References

 

1.     Introduction

Situated in the Middle East, Lebanon is a small country on the east coast of the Mediterranean. It is bordered on the north and east by Syria and on the south by Israel with a total area of about 4,014 square miles. Lebanon’s population is about six million including about two million Palestinian[1] and Syrian[2] refugees. Beirut, the capital city and its suburbs, contain nearly half of the Lebanese population. While Arabic is the official language, French and English are also widely spoken. Despite its small size, Lebanon has had immense cultural influence. It is considered to be one of the most liberal countries in the region. Approximately 14 million Lebanese are thought to live abroad primarily in South America and Africa[3].

 

Lebanon is diverse both religiously and culturally. Throughout its history it has been the stage for conflicts between local tribes-people and world powers. After being ruled by the Ottoman Empire, and the French Republic, Lebanon obtained its independence in 1943. From 1975 until 1991 civil war raged in Lebanon. Thereafter a democratic government gradually regained power. Following the war, Lebanon witnessed a period of calm and prosperity. This period lasted until February 14, 2005 when the Prime Minister Rafic Hariri was assassinated. In aftermath of the assassination civil unrest coupled with international pressure led Syria to withdraw its troops from Lebanon. The Syrian withdrawal came after 29 years of occupation[4]. Since then there has been significant unrest. In July 2006 there was an invasion by Israel and dozens of politically motivated assassinations followed by sectarian clashes.

 

After PM Hariri’s assassination the United States established the Special Tribunal for Lebanon (STL) to try those responsible[5]. The STL has provoked controversy and tension in Lebanon primarily due to the political divisions that exist. Lebanon is split into two main coalitions. One is primarily influenced, or controlled, by a Sunni group, headed by the son of former PM Rafic Hariri[6]. Christians make up about 40 percent[7] of Lebanon’s population and are divided evenly among the two coalitions. Since May 2014, when President Michel Sleiman’s term ended, Lebanon has been without a President because the Parliament has failed to meet the required quorum[8].

 

2.     Legal System Evolution

The Republic of Lebanon was a part of the Ottoman Empire for about four hundred years. The Ottoman system had three court systems: one for Muslims, one for non-Muslims, and a ‘’trade court’’. In 1926 Lebanon became a parliamentary democratic republic governed in accordance with a written constitution. At the end of World War I it became a separate political entity under French mandate. In 1943 Lebanon gained full independence, adopting a power sharing mechanism based on religious communities[9].

 

3.     The Constitution

The Constitution was adopted on May 23, 1926[10]. It has been amended several times, most notably, on the 21st of September 1990 putting an end to the civil war[11]. Lebanon is an Arab country by allegiance and identity and a founding member of the Arab League. Lebanon is a parliamentary democracy. Its constitution promotes and guarantees personal freedom.

 

Lebanon is governed by customary rule.  It provides that the three key positions in the State are distributed among the three main sectarian communities: The President must be a Christian Maronite, the Prime Minister must be a Sunni Muslim, and the Speaker of the House must be a Shia 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. The Muslim Sunni and Shia gained more power since the Taif agreement at the expense of the Christian community.

 

The 1990 Amendments shifted the balance of executive power from the Presidency of the Republic to the Council of Ministers. The Constitution guaranteed basic individual rights and freedoms and provides for a parliamentary form of government based on the democratic principles of protection individual rights and freedoms[12].

 

The Constitution divides power among the legislative branch and the judicial branch. The most unique feature of the Lebanese Constitution is the requirement to have religious communities represented in the formation of the Council of Ministers and the selection of members of parliament. This transformed the Lebanese political system into a confessional[13] régime, where religious affiliation determines the extent of one’s political rights and privileges.

 

4.     The Legislative Branch

The legislative Branch consists solely of the Parliament. It has 128 seats divided equally between Muslim and Christians and members are elected by popular vote to four years term. The Constitution acknowledges that the Parliament make up is based on sectarian distribution. The Parliament convenes during two sessions[14]. The President may with the consent of the Prime Minister; call the Parliament to meet in extraordinary session, he must call an extraordinary session if a request is made by a majority of the deputies. A simple majority is required to secure a quorum and to pass a law.

 

The Parliament has the power to legislate and oversee the performance of the cabinet. It may also confirm to disapprove of its ministers and vote them out of office. The Parliament elects the President of the Republic and ratifies certain categories of international treaties and agreements and approves the annual budget. Each deputy (Member of Parliament) has immunity from prosecution for the opinions he expressed and ideas he promotes.

 

5.     The Executive Branch

 

The President:

The President is the head of the State. He presides over the high council for national defense, and is the ultimate commander of the armed forces. The President is immune from prosecution except if he commits “high treason or violates the Constitution”.

 

Under the Constitution the President must be assisted by the Ministers in the discharge of official duties[15]. The President appoints the Prime Minister after a mandatory parliamentary consultation. He presides over cabinet meetings and makes appointments to public office. The President negotiates international treaties and proposes new legislation.

 

Parliament elects the President by two-thirds majority in the first round or an absolute majority in the second round. In practice presidents are elected by consensus and one candidate has always secured a majority of votes prior to entering the election session. The President is elected to a non-renewable six year term. Nonetheless, by constitutional amendment, two of the last four presidents have served for 9 years.

 

Lebanon’s parliament, responsible for electing the President, has failed more than twenty times since Suleiman’s term ended, to meet the two thirds quorum required to hold an electoral session consequently Lebanon has been without a President for more than a year. This is the longest time the post has ever been vacant[16].

 

The Prime Minister:

The Prime Minister (PM) 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 PM is appointed by the President in consultation with the Parliament. Each act of the President must be approved by the PM except for the decree appointing the PM and the decree accepting resignation of the government. Although the President may negotiate and ratify international treaties the signature of the Prime Minister is required. The Prime Minister is the deputy commander of the High Council of National Defense. The PM and the President appoint jointly the ministers. The PM sets the Cabinet’s policies and strategies and presents them to Parliament, convenes the Cabinet, sets its agenda, and coordinates the work of various ministries.

 

The Council of Ministers or the Cabinet:

The Cabinet is chosen by the Prime Minister in consultation with the President of the members of the National Assembly. The Cabinet is in charge of executive functions. It sets policies, implements rules and regulations, appoints public servants and sets the budget.

 

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, beginning of a new presidential mandate, a new parliamentary mandate, or impeachment by the Parliament. Today because of the absence of a head of state presidential powers are constitutionally transferred to the cabinet.

 

6.    The Judiciary Branch

 

The Supreme Judicial Council:

The Supreme Judicial Council headed by the Chief Justice of the Court of Cassation (Supreme Court), appoints and trains all Lebanese judges. The judiciary is comprised of ordinary court (criminal and civil) and exceptional courts.

 

Civil Courts:

Civil courts are divided into:

 

 

 

 

The Commercial Courts:

The Commercial courts hear and decide commercial matters.

 

The Criminal Courts:

The first degree or trial courts hear felonies and misdemeanors subject to the review of the Court of Appeal.

 

The Court of Appeal serves as a second degree or appellate court for felonies and misdemeanors and as a first degree or trial court for more serious criminal offenses

 

Constitutional Council:

It was created in 1990 to consider and rule upon any claims related to parliamentary or presidential elections. It has 10 members who serve 5 year terms. Five are appointed by parliament and five are appointed by council of ministers. Its principle function is to insure that laws conform to the Constitution.

 

Administrative Courts:

The highest administrative court is the Shoura Council, mandated to draft and review legislation promulgated by the legislature, and to serve as the highest administrative Court in charge of reviewing decisions of first degree administrative courts.

 

The Personal Status Courts:

The Sharia Courts are divided into Shia and Sunni units which settle matters of personal status in their respective community[17]. The Ecclesiastical Courts are divided into Christian and Jewish divisions and settle matters of personal status for their community members. Personal status matters include marriage, divorce, child custody, etc.

 

Other courts of specialized jurisdiction include Labor Court, Land Court, Military Court and Juvenile Courts.

 

7.     Conclusion

Lebanon was a pioneer in gaining independence in 1943. Notably Lebanon has become a democracy while its neighbors remain more authoritarian. Throughout history Lebanon has been somewhat unique. It was the only country to gain a sort of “self-independence” during the Ottoman Empire. This was due, in large part, to western cultural influence primarily through the education system. The American University of Beirut, founded by Daniel Bliss in 1866 and, Saint Joseph University, founded by the Jesuits in 1875,had (and continue to have) significant impact.

 

The Lebanese constitution has a firm democratic basis. The limited terms of office for members of Parliament-4 years and President -6 years, are somewhat unique in the region. The process has been tested several times recently. The Syrian occupation between 1976-2005 followed by other events, including the assassination of Prime Minister Rafic Hariri, and the 2012 assassination of the intelligence chief, have kept the situation somewhat tense. Today, due to the ongoing conflict in Syria and the refugee crisis coupled with general unrest in the Middle East, Lebanon’s democracy continues to be tested[18].

 

Although conditions continue to be fragile in Lebanon a democratic system of government has been in place for some time. Thus there is some cause for positive outlook despite the regions continued uncertainty[19].

 

8.    Further References

 

 

Websites Offering Access to Selected Number of Laws:

 

 



[1] As of July 1, 2014, United Nations Relief and Works Agency (UNRWA) confirmed 455,000 refugees registered in Lebanon. See http://www.unrwa.org/where-wework/lebanon/camp-profiles .

[2] The United Nations High Commissioner for Refugees (UNHCR) indicated there were more than 1 million Syrian refugees in Lebanon by mid-2015. See http://data.unhcr.org/syrianrefugees/regional.php . As this article goes to press Syrian refugees continue to arrive in large numbers.

[3] See discussion about how well Lebanese are doing outside Lebanon. ‘’By and Large, [Lebanese] find business easier elsewhere than…in their fragile motherland’’. http://www.economist.com/news/business/21573584-business-people-lebanon-fare-better-abroad-home-tale-two-traderscountry profile Lebanon

[4] Syrian occupation was in place from 1976-2005. http://www.theguardian.com/world/2005/apr/26/syria.lebanon

[6] Saad Hariri was Prime Minister briefly following the assassination of his father. Saad Hariri now lives in Paris.

[7] See Lebanon: A Model of Consociational Conflict, by Tobias Schwerna, 2010, page 44, notes the Christian population at 35% in 2015. More recent data from the Lebanon Demographics Profile 2014 indicates the Christian population at 40.5%. See http://www.indexmundi.com/lebanon/demographics_profile

[8] See YaLibnan noting that the Lebanese Parliament has failed 23 times in a row to replace Michel Suleiman, http://yalibnan.com/2015/05/13/after-23-election-sessions-lebanon-is-still-without-a-president/

[9] See materials on Lebanese Legal System at Mallat.com: http://rocket.asoshared.com/~mallatco/?q=issues/lebanese-legal-system. The page lists number of helpful resources in English including: A Primer on the Lebanese Legal System (a posted article by Chibli Mallat, The Lebanese legal system), Bibliographical Survey of Lebanese Law; Law and Commerce; Arbitration; Lebanese Law in general, and more.

[10] See Lebanon: Constitutional Law and the Political Rights of Religious Communities, Issam Saliba Senior Foreign Law Specialist, December 2010. This report is based on a speech delivered by the author as a guest speaker at the Lebanese American University, Beirut, Lebanon, in 2009.The full report is available here : http://www.loc.gov/law/help/lebanon-constitutional-law.php

[11] This is so called ‘’Taif Accord’’ signed by Lebanese Parliamentarians in Taif Saudi Arabia in 1989.

[12] The right against arbitrary detention, the right to private ownership, the right to be secure in one’s own domicile and other essential protections.

[13] The Lebanese                  Confessional system, in theory, is meant to enable peaceful co-existence by allotting power to each group according to its demographic. Lebanon is a society of minorities which makes it extremely sensitive to demographic changes (refugee influx) or external forces. For this reason minor changes can trigger instability. See CJPME Factsheet: Understanding Lebanese Confessionalism.

[14] The first Tuesday after March 15th-31st of May/The first Tuesday after October 15th-31st of December.

[15] Article 52 of the constitution specifically states ‘’…concerned ministers countersign with the President on all presidential decisions except those decisions relating to the appointment and dismissal of ministers’’

[16] See footnote 8.

[17] See In Lebanon, a Tangle of Religious Laws Govern Life and Love, Anna Louie Sussman, September 29, 2011 for a more detailed explanation

[18] Lebanon with its population of 4 million is hosting over 1 million refugees.   The education system is being ramped up to accommodate this influx. See Huffpost Impact, Lebanon to Provide Education for up to 100,000 Syrian Refugees this Year: Lebanon is Hosting 1.1 million Syrians, the Highest Proportion of Refugees (Sept. 22, 2015).

[19] Lebanon: Background and U.S. Policy, Christopher M. Blanchard, February 14, 2014, p 14.