Home Opinion Constitutional challenges and the fight against impunity

Build & Reform pillar, #BuildPublicCapacity, #ReformStateInstitutions, #BuildJudicialIndependence, #ReformRegulatoryFramework, Combat pillar, #CombatCorruption

Constitutional challenges and the fight against impunity

Protecting international assistance to Lebanon from corruption

by Ghassan Moukheiber

Accountability is a fundamental tool for fighting corruption effectively, the formula for success being to make the cost of corruption, through holding the concerned individuals to account, much greater than its benefits to them.

However, the sad reality in Lebanon is the continued wide prevalence of impunity, particularly in the cases of grand corruption, which signals that corruption is systemic, in the sense that it is not accidental, but a tool for the real operation of the political system as a confessional-based multiple oligarchy controlling citizens and the state’s public goods, redistributed to political clients through acts of corruption.

Corrupt acts in such a system, are not only limited to criminal offenses, petty or grand, (such as bribery, misappropriation of public funds or illicit enrichment), but extends to practices, many of which are based on laws or decrees (thus the adjective often used of “legalized corruption”), involving the abuse of public office for the personal gain of political clients, such as the provision of services and the allocation of public goods, including public offices, public land and public contracts.

This article assesses whether or not the provisions, interpretations and practice of the constitution, cause, promote or facilitate this systemic state of corruption and impunity. It also suggests some follow-up actions.

The constitution, interpretations, practices and culture

When evaluating the constitution, we do not limit ourselves to its operative texts alone, but extend our review to the full “constitutional bloc”, which includes its preamble and a number of fundamental laws mentioned in the constitution, such as the electoral law, the by-laws of Parliament and government, the laws governing the Judiciary, the constitutional Council, the Higher Council for the trial of presidents and ministers and the Court of Audit.

Also,  we include in our evaluation political practice, which departs many times from the intent of the text and the constitutional principles. These practices, called “silent constitutional amendments”, result from various mis-interpretations, practices (or the lack thereof) and loopholes in the laws, not accidental, but meant to exist.

Constitutional principles and tools for oversight and accountability

The general discourse about ending impunity through constitutional means, usually emphasizes the important role that should be played by an independent judiciary. However, this fails to highlight other constitutional oversight and accountability means that are: popular, parliamentary and financial.

Distorted expressions of popular sovereignty

The constitution solemnly states that the People is the source of all powers/branches of government. However, reality distorts such supremacy and turns it upside down.

Distorted and rigged elections: Free, fair and regular elections, that should constitute the ultimate popular tool of accountability, have been regularly distorted to the advantage of the ruling oligarchic leaders that have succeeded in controlling the electoral results. Not only are the choice of districts and electoral system themselves tampered with, but there are other ways and means for controlling the results, such as ineffective tools to manage the elections, ineffective controls of campaign finances and media and pressure on voters.

Clientelism: Citizens who should be free and equal in the exercise of their political role, are captured by leaders as clients through sophisticated practices of corruption and confessionalism, such as in the apportionment and redistribution of public goods and services among political and confessional clients (e.g. public offices, land and contracts).

Emergence of popular empowerment: Direct oversight and accountability by the people, which was amplified by modern social media, is a novel and potent tool, which has been most effectively exercised since the October 17, 2020 and the massive popular demonstrations, as well as the parallel rise in effectiveness of the new civil society organizations and political grassroots movements. The direct action of citizen is putting an unprecedented pressure on the politicians, seeking more accountability and the pursuit of an effective fight against corruption.

Distorted separation of powers

The constitution solemnly declares in its preamble that “the [political] system is based on the principle of separation of powers, their balance and cooperation”. This indeed constitutes the foundation of the effectiveness of oversight and accountability. However, in reality, the practice developed the hegemony of leaders over the constitutional institutions (particularly through extra-institutional mechanisms such as the “Troika” and the “Dialogue Table”), and the preeminence of the executive over a weak parliamentary oversight and a weak judicial independence.

Weak parliamentary oversight: this is highlighted in a confusion between the offices of members of Parliament and ministers, especially in the context of the prevalent practice of the so-called National Unity Governments; rare meetings of the Plenary of Parliament for oversight sessions (an average of 21 meetings for questions in over 19 years); ineffective mechanisms of oversight and accountability provided for in the by-laws; oversight confined to committees that do not hold public meetings and do not report back to Parliament; the inability to form any parliamentary investigation committee; and inappropriate transparency of the parliamentary activities, particularly the absent use of the electronic voting system and of any  TV coverage of the legislative process.

Weak judicial independence and effectiveness: this is related to the lack of independence of the Judiciary as a third branch of government as provided by the Constitution; the inability to approve a pending bill meant to develop its independence, effectiveness and integrity; a similar inability to develop administrative court (the Council of State); the appointment of administrative judges in consultative positions within ministries; the need to reform the Constitutional Council, who in addition to its many institutional shortcomings (including its inability to accept requests for constitutional interpretation, as originally provided by the Taef Accords), is rarely used by the political system for the constitutional review of laws.

Immunity of public officials

The constitution solemnly declares the principle of equality of all citizens before the law. However, many forms and mechanisms for immunities specifically favor civil servants and public officials.

In reality, immunities have become the stronghold of political impunity, further reinforced by the abusive practice of confessionalism. The most striking example of institutional immunities, is the protection afforded to the president of the republic and ministers, who can only be tried before a special political jurisdiction, the High Council for the trial of presidents and ministers. The procedural law applicable to this jurisdiction makes it almost impossible to operate. A small window of improvement was opened by the most recent amendments of the illicit enrichment laws, which has now allowed the trial of ministers on that count before common courts.

Ineffective financial oversight

The historic rationale for the very existence of Parliaments originally was the exercise of the “Power of the Purse”, that should be the most potent tool for the financial legislation of taxes and the budget as provided by the constitution.

However, the practice has limited such power, if not made it totally ineffective. For more than 10 years, Parliament did not vote a budget; for more than 50 years, it did not vote a properly audited final state accounts (e.g. the State’s balance sheet) and since 2005 there were none produced. Parliament always invented drafting means to circumvent such obligation, required prior to the vote of any budget, a practice considered unconstitutional by the Constitutional Council. In addition to the above, parliament has few tools for the effective exercise of its own financial oversight, other than the finance committee, such as an independent budget office, as best practiced by many other parliaments.

Last but not least, the role of the Court of Audit mentioned in the constitution, has also been ineffective, particularly to oversee the budget and public financial expenditures.

Recommended actions

It appears from the above, that a distorted constitutional practice has weakened the proper functioning of the oversight and accountability mechanisms, to the extent that the political system has become similar to a “basket that doesn’t hold water”, a mere façade of laws and institutions, void of their much needed effectiveness. This signals, not only a lack of will to fight corruption effectively, but also, and much to the opposite, a concerted will to maintain the systemic corruption and curtail the effectiveness of any effort for accountability, oversight and transparency. Thus the state is not “failed,” but “captured.”

This will can be reversed by appropriate actions. A few bills were submitted to parliament to address some of the issues raised in this article, e.g. reinforcing the oversight functions of parliament, improving the means for holding ministers to account, limiting political immunities, improving the independence and effectiveness of the High Court of Justice, judiciary, court of audit and other oversight bodies.

Also, the government has recently completed the “National Anti-Corruption Strategy”, which includes many actions directed at preventing and fighting corruption (including reforming the Judiciary and the Court of Audit), but falls short of addressing many of the constitutional issues discussed in this article, which must be addressed appropriately, through further scholarship and dialogue, in preparation for the development of a special strategy and action plan to correct the many distortions of the constitutional tools of accountability.

Most of these efforts would probably not require modifications of the constitution itself, but filling the gaps of the fundamental laws forming the bloc of constitutionality and changing many of the legal misinterpretations and decades of improper practices..

Ghassan Moukheiber is a lawyer and former member of parliament

Disclaimer: The analysis, views and policy recommendations of this article do not necessarily reflect the views of the United Nations, including UNDP, or its Member States. The article is an independent piece commissioned by UNDP as a build up to the “Constitutional Challenges and the Fight Against Impunity” webinar organized in partnership with Executive Magazine.

Support our fight for economic liberty &
the freedom of the entrepreneurial mind

Ghassan Moukheiber

Ghassan Moukheiber is a lawyer, a former Member of Parliament in Lebanon (2002-2018), and a human rights and anti-corruption activist. He sponsored the Access to Information Law and followed it through from inception in 2006 to vote in 2017.

View all posts by

You may also like