June 30, 2021
A Constitutional Tug of War: Who Can Amend a Decree Under a Caretaker Government?


Indirect negotiations between Lebanon and Israel over the delimitation of their maritime borders came to a halt after the fifth round of negotiations on May 4. To date, Lebanon has failed to strengthen its negotiating position by amending Decree No. 6433, which currently defines its maritime boundaries according to a 2009 demarcation. Amending Decree No. 6433 would add an area totaling 1,430 square km proposed by a 2011 United Kingdom Hydrographic Office study. This issue has raised legal and constitutional questions as to whether a caretaker government has the power to amend state decrees.
 
A constitutional tug of war erupted between the Prime Minister and the President of the Republic, who claimed that amending Decree No. 6433 requires a decision by the cabinet, even with a caretaker government, due to its importance and consequences. The presidency based its position on a February 17 opinion (No. 17) by the Legislation and Consultation Commission, as well on Articles 49, 52, 64, and 65 of the constitution. An opposing opinion, held by caretaker Prime Minister Hassan Diab, suggests that the approval allotted to the Council of Ministers is replaced by the exceptional approval of the president, the caretaker prime minister, and the relevant ministers, due to the urgency of the matter.
 
In the following interview, lawyer and former minister, Ziyad Baroud, explains the constitutional issues at stake.
 
Can you explain the rationale behind these differing constitutional opinions?
Are we really discussing constitutional matters or a political deadlock? Very often, constitutional provisions are unfortunately used in politics to the extent that the interpretation of said provisions frequently becomes partisan and reflects a political stand. In some cases, the constitutional provisions are not crystal clear, and the fact that the Constitutional Council (established in 1990) was not accorded the power to interpret the constitution made things even more complicated and difficult. Back to your question, I would like to simplify the approach as follows:

1. There are two types of decrees in the Lebanese administrative practice: one is referred to as a “simple decree,” and is signed by the relevant minister(s), the Prime Minister, and the President of the Republic. The other type is a “decree in Council of Ministers,” and is issued by the cabinet, as the name suggests. Decree No. 6433 of 2011 was promulgated in the form of a decree in the Council of Ministers.

2. According to the “principle of parallelism of forms,” a decree in the Council of Ministers cannot be amended (or abrogated), except by the same form. Accordingly, Decree 6433 requires a decision in the cabinet (not necessarily unanimously), meaning: pursuant to a cabinet meeting. Due to the fact that the current cabinet is a caretaker government, some are claiming that it cannot convene. I personally disagree, based on precedents, court decisions, and legal opinions of high-level bodies.

3. In fact, according to Paragraph 2 of Article 64 of the constitution, “the Government shall not exercise its powers before it gains [a vote of] confidence, nor after it has resigned or is considered resigned, except in the narrow sense of a care-taker government.” The interpretation of “narrow sense” is behind the differing opinions, because the constitution does not offer further details as to the exact meaning of the term and what it entails.

4. In the absence of a clear-cut definition in the constitution, the Council of State gave its own: In 1969 (Rashed vs. the State), the higher administrative court ruled that the “narrow sense” includes situations of emergency and where legal deadlines have to be met. In another case in 1995 (Hnoud vs. the State), it ruled: A resigned government/cabinet can conduct business unrelated to matters of supreme state policy, and which cannot restrict the freedom of the upcoming/succeeding cabinet. The Commission for Legislation and Consultations held a similar position.

5. This being said, I don’t see why amending Decree 6433, in a way to preserve Lebanon’s high interests and legal rights, could not fall within the narrow sense of caretaking. To the contrary, I believe that it is an urgent matter that cannot wait until a new cabinet is formed, and thus, the actual caretaking government should have met with this one single item on its agenda. There are precedents for this, when the following caretaker cabinets met: PM Rachid Karami’s in 1969, to approve the budget; PM Salim Hoss’ in 1979, to approve urgent draft laws; and more recently PM Najib Mikati’s, in order to appoint the Electoral Supervisory Commission in 2013.
 
On 20 April 2021, the Justice and Administration Parliamentary Committee held the caretaker government fully responsible and called on it “to convene immediately and take a decision amending Decree 6433 under penalty of constitutional accountability for dereliction of national duty.” Others, mainly political pundits, argued that it was the responsibility of the president, holding him accountable for failing to be the guarantor of Lebanon’s territorial rights and energy resources. What are the constitutional processes for holding relevant government officials accountable in this case?
Beyond appearing as a mere “technicality,” it is a matter of high national interest, with moral and political repercussions, in addition to legal accountability, as per constitutional provisions. According to Article 60 of the constitution, “the President of the Republic shall not be held responsible except when he violates the constitution, or in the case of high treason.” Also, according to Article 70, “the Chamber of Deputies shall have the right to impeach the prime minister and ministers for high treason or for breach of their duties.” Assuming that the breach of duties is established, the constitutional processes to hold relevant officials accountable are over-complicated. For instance, they require a two-thirds majority and a specialized tribunal (the Supreme Council) whose function is to try presidents and ministers.
 
On 5 December 2020, President Michel Aoun hinted that resorting to international arbitration is a possible option if the indirect maritime border negotiations with Israel failed. Can two countries that are in a state of war resort to international arbitration?
Resorting to arbitration to solve territorial disputes can be successful only when and where the parties mutually and voluntarily commit to resolving the dispute peacefully through arbitration. In doing so, they agree to settle their dispute in arbitration and, more importantly, pledge to accept the arbitral award.
 
Several arbitral proceedings have involved a territorial dispute between parties with a history of violent conflict: the Rann of Kutch Arbitration” between Pakistan and India, the Taba Area Arbitration” between Egypt and Israel, and more recently, an arbitration between Nicaragua and Costa Rica (2018).
 
For arbitration to successfully resolve such disputes, the parties must have a modicum of trust in each other and be willing to accept the fact that they may lose. An arbitration agreement brought forward by international “sponsors” cannot lead to a settlement if it is imposed on either side of the dispute.
 
So far, Lebanon is insisting on holding indirect negotiations, given that it is in a state of war with the opposing party. The “Law of the Sea” option in this regard is not yet on the table.