Lebanon in Twilight Constitutionalism

September 29, 2020 by Digital Editor

A view from Mount Makmal, Lebanon

By: Eliane Bejjani

I. Lebanon in Crisis

On August 4th, 2020, an explosion ripped through a bustling, water-facing part of Beirut.  The blast wave tore through the budding cafes and fashionable galleries of Gemmayze and Mar Mikhael.  In its wake sat the crumpled carcasses of the affordable studios of young professionals, the residential towers of Lebanon’s elite, and the historic palace of one of Beirut’s last aristocratic families.  The explosion of 2,750 tons of ammonium nitrate, equivalent to around 1,155 tons of TNT, created approximately 200 dead, 6,500 injured, and 300,000 homeless; it caused up to $15 billion in damages, including the destruction of the port – the main gateway for goods moving into and out of the import-heavy country – and three hospitals, one of which had to treat blast patients in the street.

The humanitarian cost of the blast is unimaginable.  More shocking, however, is perhaps the near-resignation felt by Beirut’s citizens.  It represented the most recent in a long series of political and economic crises.  For example, the Lebanese pound has lost approximately 80% of its value in the last nine months as part of a debt crisis, pushing nearly 50% of the population into poverty.  It blew all previous crises out of the water but could only have been possible within their context.  It was yet another example of a failed state captured by a criminally selfish political class.

II. The Confessional Constitution

The Lebanese Constitution is nearing its 100-year anniversary, a remarkable feat in a region that has borne the Arab Spring and its repercussions over the past decade.  The constitutional compromises of 1925-26, under the auspices of the French mandate, provided the blueprint for a unified Lebanese national identity that could encompass Lebanon’s many religious minorities and neutralize growing pan-Arabism sentiment.  The vehicle for these compromises was a temporary confessional constitutional structure that gave each of Lebanon’s main religious groups – the Maronite Christians, the Sunnis, and the Shia – a formal stake in the unity government.

The confessional constitution brought sectarian community heads to the table and enshrined their role as conduit between the state and the people.  Formal institutional mechanisms to mediate between groups are widespread in divided societies, but such mechanisms are often used to circumscribe the specific space(s) in which identities other than citizenship take precedence over the state.  An example of this is state deference to the respect of religious tenets in certain aspects of Americans’ private, or even sometimes public, lives.  In Lebanon, the confession-based mechanism of representation – al-nizam al-taefi or “confessional order” – took primacy over the state.  Its potency precluded the finalization of a national project and cannibalized the very united Lebanese identity the system was meant to forge.  Lebanon never managed the intended move to a post-confessional, national government.

Stakes in the government have turned into stocks in Lebanon’s national wealth, as the country is pillaged by competing sectarian fiefdoms awarding themselves the most lucrative government contracts and functions.  The fractured confessional power structure encourages backroom dealing while shielding any specific group from accountability.  And so, garbage rots in the street as factions argue over cleaning concessions; rolling power outages trap people in elevators as politicians buy generator companies; and history’s third largest bomb sits waiting in Beirut’s port as militias jockey for customs bribes.

III. Twilight Constitutionalism

Is Lebanon in a period of “twilight constitutionalism”?  In a recent talk at Georgetown Law hosted by the American Constitution Society and the Arab Law Students Association, Professor Chibli Mallat, constitutional scholar and former presidential candidate in Lebanon, highlighted that all societies are in transition and getting old.  Lebanon’s constitution seems increasingly outdated, least of all because it codifies demographic data from a 1932 census that has not since been updated.  Its society also appears to be in transition, as tens of thousands of citizens take to the street regularly in a twelfth month of protest.  The notion of twilight constitutionalism captures the sense of a closing era, a period of uncertainty at the cusp of great opportunity and even greater peril.  It also highlights a new constitutional component seen in Beirut’s streets: civil society organizations, both established and ad hoc, that rebuild Beirut today in the shadow of an absent government.

IV. Darkest before the Dawn?

The ongoing protests and post-explosion mobilization provide hope that a constitutional dawn may come.  State services are increasingly being provided by the private sector and civil society.  The confessional system has grown into each crack left by a weak central government, delivering social services the government can no longer, or could never, provide and deepening community dependencies on sectarian patrons.  However, the act of participating in civil society has forged a new sense of citizenship.  The complete state capture by the confessional system has turned many Lebanese against all of this system’s members, denying the political class their usual blame-shifting.  In Beirut today, the slogan is “killon yaane killon” – “all of them means all of them.”

In the face of a readily-identified “ancien régime,” some in Lebanon are already thinking about a new constitutional structure that could better serve the country’s divided population.  When pressed, Professor Mallat admitted seeing few plausible paths out of the “sectarian constitutional riddle.” However, he and his comparative constitutional law colleagues have already highlighted realistic remedial measures, including political positions that alternate among the main sects, a federal system that allows regional experimentation while reinforcing a national center of gravity, and a judiciary empowered to protect minority rights.  These suggestions still rest on an assumption of continued sectarian allegiance and identity.  The fundamental question remains: can Lebanon’s constitution be redesigned to be value-neutral while still ensuring the respect and protection of all of its citizens?  The answer would likely say as much about Lebanon as about the power of constitutional design in divided societies, in the Middle East or closer to home.

Eliane Bejjani is a 2L and Global Law Scholar at Georgetown University Law Center, where she is also a staff editor on the Georgetown Journal of International Law, competitor in the Jessup Moot, and Treasurer of the American Constitution Society.  Eliane contributed to the Tunisian National Constituent Assembly in 2012, completed her undergraduate dissertation at Cambridge University on the failure of democracy in Egypt in 2014, and spent two years in the UAE and Saudi Arabia as a management consultant with Boston Consulting Group.