Changing The Lebanese Constitution: A Postmodern History: John J. Donohue, S.J
Changing The Lebanese Constitution: A Postmodern History: John J. Donohue, S.J
POSTMODERN HISTORY
Lebanon fits one of the models mentioned in the position paper for
this conference as having serious shortcomings—“the millet based
model in which priority is given to collective self-government by each
religious community within the polity.”1
Lebanon was often in the news during the civil war that extended
over 15 years from 1975-1990, and accounts of that war often attribute
the cause to its communitarian2-based constitution. A closer look at the
“events” during those hectic years shows that much more than a
constitutional change was at the base of it all. The change that took
place in 1989 was much more of the same. The second republic
begotten by the war looks much like the first. Communitarianism
evidently is here to stay.3
Here I present the background of communitarian constitutionalism
in Lebanon and its genesis, development and performance to illustrate
that radical change in the system is next to impossible.
Constitutionality in the Middle East dates back to the 19th century
in the Ottoman Empire.4 Constitutions were seen as a means to limit the
power of the sovereign. The constitutions of the present states date
from mandates from France and England at the end of World War I.
Liberal constitutions were granted with elected parliaments and all that.
* Professor at the Faculty of Religious Sciences, Saint Joseph University, Beirut, Lebanon;
director of the Observatory of the Euro-Lebanese Center for Intercultural Mediation (CIEL).
1 See John J. Donohue, s.j., Religion and Public Reason: The Lebanese Case (Oct. 16, 2008)
(unpublished position paper sent to conference participants in preparation for this symposium, on
file with the Cardozo Law Review).
2 See, e.g., FED. RESEARCH DIV., LIBRARY OF CONG., A COUNTRY STUDY: LEBANON
(1987), available at http://lcweb2.loc.gov/frd/cs/lbtoc.html (scroll down and follow “The Civil
War, 1975-76” hyperlink) (“For many observers, at the bottom of the conflict was the issue of
confessionalism out of balance—of a minority, specifically the Maronites, refusing to share
power and economic opportunity with the Muslim majority.”). The term “communitarian” is
fairly recent; it duplicates the “millet based system” referred to in the first paragraph above.
3 Julia Choucair-Vizoso describes Lebanon as “the semblance of a modern state [with] no
modern institutions. In short, Lebanon [is] a confessional oligarchy.” Julia Choucair-Vizoso,
Lebanon: The Challenge of Reform in a Weak State, in BEYOND THE FACADE: POLITICAL
REFORM IN THE ARAB WORLD 115, 119 (Marina Ottaway & Julia Choucair-Vizoso eds., 2008).
4 See 2 STANFORD J. SHAW & EZEL KURAL SHAW, HISTORY OF THE OTTOMAN EMPIRE AND
MODERN TURKEY 130-33 (1977).
2509
2510 CARDOZO LAW REVIEW [Vol. 30:6
BEGINNINGS
manipulation of the president, who tailors it to fit his agenda and assure
a chamber, comfortable and malleable, to favor the choice of a
successor who will not be an adversary to his policies, his family or his
friends, digging up the sordid details of his regime.11
The creation of the state of Israel in 1948 and the feeble Arab
attempts to thwart it resulted in radical changes in the region. The
military reacted against what they considered corrupt regimes, first in
Egypt with Nasser, then in Iraq and Syria. Military coups established
revolutionary command councils that rewrote constitutions and made
efforts at state socialism, taking the Soviet Union as a model.
Lebanon was spared that experience but not the repercussions from
popular pan-Arab opposition movements and the Soviet-American
rivalry in the region. The United States proposed the Baghdad Pact in
1955 to fence out Soviet penetration. Lebanon ignored popular Arab
sentiment and joined. Egypt violently objected to the Pact and
nationalized the Suez Canal in 1956. The United States went even
further with its proclamation of the Eisenhower Doctrine in 1957
offering to protect the states in the region against the “Red Peril.”
Again Lebanon signed on.
When a pro-Nasser insurrection broke out in 1958, allegedly
against President Chamoun’s maneuvering to prolong his mandate
beyond the six-year term, Chamoun appealed for American help,
without effect until July when a military coup in Baghdad upset
Washington. Shortly thereafter, American marines landed on Lebanese
shores to protect the regime and assure the election of a new president.
The National Pact had fractured. The new President, Fouad Chehab,
undertook to restore it. To assuage the Muslims, he decreed that more
consideration be given them in public employment. His effort, referred
to as “fifty-fifty,” further entrenched confessionalism12 in the system as
it restored the National Pact.
The Maronites and the Druze of Mount Lebanon provided the base
for the new independent state of Greater Lebanon. Other religious
makes a plea for freedom to the utmost extent to which people can
be free without harming their neighbor and, of course, their country.
It is apprehensive of the mistakes that technicians from the West
might, in all good faith, suggest to those who govern us. . . .
The West is superior to us in the exact sciences, in things
mechanical and in statistics, and will remain so indefinitely. It is not
superior to us in political philosophy, in knowledge of human nature
and in economic and financial science.20
The Lebanese system, fragile as it was, appeared strong and
malleable enough to weather the minor clashes of interests and power
plays that came from within. Interests, in general, coincided and there
was talk of the Lebanese miracle.21 Nobody understood fully how it
worked, but it did.
The next threat would be the fallout from the 1967 defeat of the
Arabs by Israel, the Six-Day War, that gave rise to the Palestinian
Resistance. The Fedayeen became the Arab heroes, saving Arab honor
from the disgrace of dysfunctional regimes. The Palestine Liberation
Organization was a formal attempt to institutionalize the Resistance to
better control it, but groups sprung up everywhere; there were Syrian
fedayeen and Iraqi fedayeen, etc. as well as Palestinian fedayeen.
These groups developed unhindered in the free atmosphere of
Lebanon where the refugee camps offered fertile ground for recruitment
and training. Clashes with the Lebanese army were frequent and efforts
to control the groups were stymied by Arab interference. Tensions
finally led to the Cairo Accords (1969) granting extra-territorial status
to Palestinians in the camps—a state within the state. In Jordan the
hijacking operations the Palestinians carried out brought on Black
September when the Jordanian army put an end to their tactics and
reduced their presence in 1970. Many of them took refuge in Lebanon
where they offered armed support to the Lebanese opposition. The
assassination of three Palestinian leaders in the center of Beirut by an
Israeli commando group in 1973 brought the government down and
prepared the stage for the civil war of 1975-1990. The added weight of
the Palestinian Resistance warped the equilibrium; the National Pact fell
apart once again.22
20 MICHEL CHIHA, LEBANON AT HOME AND ABROAD 117 (Leo Arnold & Jean Montégu
trans., 1966). KAUFMAN, supra note 9, gives a full account of Chiha’s thought.
21 See Georges Corm, The “Lebanese Miracle” in Danger, LE MONDE DIPLOMATIQUE
(English ed.), Apr. 1998, available at http://mondediplo.com/1998/04/05liban.
22 See FARID EL KHAZEN, THE BREAKDOWN OF THE STATE IN LEBANON, 1967-1976 (2000).
2009] C H A N G I N G T H E L E B A N E S E C O N S T I T U T I O N 2515
23 Saudi Arabia, Sudan, Yemen, Libya and the United Arab Emirates sent token forces. But
soon they withdrew and left only Syrian troops.
24 Late in the morning on Sunday, April 13, 1975, a car drove past the Church in Ayn al-
Rammane as Pierre Gemayel, leader of the Kata’ib, was leaving after attending Mass. The car
fired on Gemayel but missed him and killed his bodyguard. Later in the afternoon, people in
police uniforms set up roadblocks to force a busload of Palestinians coming from a celebration, to
pass in front of the Church. The Kata’ib militia in the quarter, having mobilized after the
morning’s events, stopped the bus and executed the Palestinians.
2516 CARDOZO LAW REVIEW [Vol. 30:6
the Lebanese war to an end. Syria’s supporting the Shiite militia AML
in its prolonged “War of the Camps” to eliminate Palestinians was
further incentive for the Arab heads of state to intervene.25
The committee submitted their report, then resigned in frustration
because Syria refused to accept its recommendations concerning
security arrangements and the withdrawal of Syrian troops. In Beirut,
outgoing President Gemayel had failed to see through the election of a
successor and left behind him two governments, one under his
appointee, General Awn, the other supported by Muslim opposition.
The solution came under American auspices in the Ta’if Conference of
1989, hosted by Saudi Arabia. The Ta’if accords would produce new
constitutional amendments.
Was the war all about a deficient constitution? Perhaps for the
leader of the National Movement this was uppermost. Kamal Jumblatt
with his Palestinian and leftist allies had taken the upper hand over the
traditional Muslim leaders. The National Movement’s Reform Program
announced in mid-August 1975 aimed at changing the political system.
Jumblatt and his supporters claimed that the dominant ruling class had
been unwilling or incapable of introducing reform into the system. To
reform the system, the program proposed complete secularization,
eliminating sectarianism from the various levels of political life, the
civil administration and the army. The three presidencies (republic,
government and chamber) would be open to all communities. The
prime minister’s powers would be increased, those of the president
decreased. Fundamental changes in the electoral law would make all
Lebanon one constituency and elections would be based on proportional
representation.26 The Maronites and the Sunni opposed secularism; they
did not want to give up their places at the apex of the pyramid.
Syria would propose a compromise plan by sponsoring the
elaboration of a Constitutional Document made public on February 7,
1976 on the occasion of the visit of President Frangieh and Prime
Minister Rashid Karami to Damascus. The document incorporated
some elements of the National Movement program but instead of
leaving the top three presidencies open to any community as Jumblatt
would have it, maintained the traditional distribution among Maronite,
Sunni and Shiite. It did propose equal distribution of seats in the
chamber between Muslims and Christians; election of the prime
25 See Joseph Maila, Jalons pour une crise continuée, 16-17 LES CAHIERS DE L’ORIENT 220
(1989-1990).
26 MARIUS DEEB, THE LEBANESE CIVIL WAR 74-77 (1980). In 1975-76, the various
communities presented plans for the Lebanon they desired. See 3 CTR. FOR THE STUDY OF THE
MODERN ARAB WORLD, RELIGION, STATE AND IDEOLOGY: CEMAM REPORTS 1975 (1976).
There had been a serious call for more equal participation on the part of the Sunnis before the war
broke out. And the Shiites were making their bid for more power behind the charismatic Imam
Musa al-Sadr.
2009] C H A N G I N G T H E L E B A N E S E C O N S T I T U T I O N 2517
32 See 9 ANTWAN KHUWAYRI, HAWADITH LUBNAN 223-27 (1980). Lebanese emigrants tend
to maintain close ties with their country of origin. Remittances to Lebanon are an important
element in the economy, and there is a movement to allow emigrants to vote in Lebanese
elections.
2009] C H A N G I N G T H E L E B A N E S E C O N S T I T U T I O N 2519
33 Husain Quwatli, Editorial, AL-FIKR AL-ISLAMI [ISLAMIC THOUGHT] (Beirut), Oct. 1983
(translated from Arabic).
34 The daily Arab press, for example al-Nahar and al-Safir, carried such accounts. See also 7
ANNALES DE SOCIOLOGIE ET D’ANTHROPOLOGIE 139-40 (1989).
2520 CARDOZO LAW REVIEW [Vol. 30:6
new text, more engaged, which marked the alignment of the community
with the opposition to President Amin Gemayel: call for the abrogation
of the May 17th Accord with Israel, condemnation of the Army,
denunciation of “sectarian hegemony.”35 The text concluded with a call
for a new national dialogue.
Dialogue had already begun at the end of October 1983. President
Gemayel presided at the meeting in Geneva. The participants reached
accord on the identity of Lebanon: Arab in its affiliation and identity.
They could not agree to abrogate the Accord with Israel. In fact, 37
deputies would meet and insist on keeping the accord lest the south be
lost. At the second meeting for dialogue in Lausanne, March 12, 1984,
there was agreement on abrogating the accord with Israel. The
Christian leaders Pierre Gemayel and Camille Chamoun presented a
work paper proposing a federation. Muslim participants adopted a
common position calling for increasing the powers of the Prime
Minister. The dialogue finally put off any radical reform, leaving that
to the next president and a government of national unity and a
committee that would be charged with drawing up a new constitution.
The fighting would continue in the south and in the north. In the
south it was to force Israeli forces out, in the north it was pro-Syrian
Forces against the Movement for Islamic Unity, a new comer set up by
Yasir Arafat before his second departure from Lebanon. The fighting, as
in Tripoli, would turn into intra-community and intra-factional combat.
Hezbollah vs AML, AML vs Palestinians, Lebanese Forces vs the
government of General Awn. Kidnapping and hijacking and suicide
bombers became the mode. At times it appeared as if Syria had
achieved dividing all communities. Meanwhile efforts at a national
accord continued.
35 See the declaration in AL-NAHAR (Beirut), Feb. 23, 1984, at 3; see also 8 ANNALES DE
SOCIOLOGIE ET D’ANTHROPOLOGIE 140 (1990).
2009] C H A N G I N G T H E L E B A N E S E C O N S T I T U T I O N 2521
meeting in Tunis at the end of January 1989 to discuss the project for a
national accord. P.M. Huss earlier sent a memo to the Council of the
Arab League explaining that the solution for the crisis must be a
national accord abolishing confessionalism, supplying a just form of
participation and giving the council of ministers executive power.
Then in May the Arab Summit at Casablanca appointed a
committee of three heads of state: Morocco, Algeria and Saudi Arabia,
to refine the text of the accord and arrange for a meeting of the
chamber, outside Lebanon, to approve the text. The committee of three
published a report on August 2, 1989, and announced their resignation
because of Syria’s refusal to accept security arrangements and the
retreat of Syrian forces from Lebanon. An amended text acceptable to
Syria was published with United States insistence and finally the
chamber met in Ta’if in September 1989 and approved the text, the
basis for a new constitution.
General Awn refused the Ta’if Accord. He was not alone, but his
position gave him prominence. Finally the Iraqi invasion of Kuwait
was the international preoccupation. For Syrian cooperation in an
American-sponsored multinational force to liberate Kuwait, President
Asad was given the green light to bomb General Awn out of the
presidential palace at Baabda.
Why did so many instances of dialogue and mediation fail until
Syria was allowed to use its air force? Evidently, Syria’s role in
Lebanon was more important than any constitutional change. In fact,
the committee of three mentioned that Syria was not the least bit
interested in their proposed document save for the items concerning
security and withdrawal of Syrian forces. Syria also made progress in
co-opting the Palestinian Resistance. It had supported AML in its war
against the Palestinian camps and had created its own Fath movement,
“Fath al-intifada” to replace Arafat.
37 For the best analysis of the Accord, see Joseph Maila, Le Document d’Entente Nationale:
Un Commentaire, 16-17 LES CAHIERS DE L’ORIENT 135 (1989-1990). For the American input,
see id. at 168.
2009] C H A N G I N G T H E L E B A N E S E C O N S T I T U T I O N 2523
38 A caza is the smallest geographical unit of the country, somewhat similar to a county.
2524 CARDOZO LAW REVIEW [Vol. 30:6
40 For the text of the Ta’if Agreement, see AL-NAHAR (Beirut), Aug. 22, 1990, at 8.
41 Maila, supra note 25, at 224.
42 Id. at 220.
2526 CARDOZO LAW REVIEW [Vol. 30:6
proposed as the solution for that and other problems.46 To date dialogue
has produced nothing, though it does assure calm.
The events of Lebanon during the last quarter century illustrate the
strengths and weaknesses of its unique system. One commentator
surmised that in Lebanon, the government’s function is judicial: it
adjudicates claims and petitions in accordance with unwritten rules.47
That may be true for strictly internal problems, not so for regional
struggles. A recent study of Lebanon carried as its title: Liban entre
Stabilité Intérieure et Sécurité Régionale.48 Some Lebanese emit the
sigh: “If only they would leave us to ourselves.” But such is not to be.
In peaceful periods, Lebanon appears as the only Arab State that is open
and democratic. In times of stress, the system borders on complete
collapse.
Early in the 20th century, in the period of liberal democracy,
Muhammad Abduh considered that Egypt was in need of a benevolent
dictator. Dictators came to most of the Arab countries at the head of
praetorian regimes. The Lebanese, prone as they were to political crises
for lack of a strong government, considered they were better off than
their neighbors. The strong presidents like Charles Debbas and Fouad
Chihab who were putting order into the apparent chaos, were ushered
out with a sigh of relief. The majority of Lebanese were happy to return
to the old laissez-faire. On the other hand there have been and still are
many Chihabists among the older generation.
The periods of turmoil illustrate the limits of weak government;
they also illustrate the restraints on would be usurpers. No one
community can take over the country. The Druze-Palestine tandem in
the civil war failed, then the ambitions of the Christian Lebanese Forces
ran aground in the second half of the war. Now the Shiite Hezbollah is
attempting the same thing. As loose as the system is, it still sets limits
on the complete usurpation of power. I suppose one could say that the
present posture of Hezbollah illustrates the weakness of Nicholas
Wolferstroff’s semi-autonomous communities and several other forms
of communitarianism.49
Political scientists classify Lebanon as a “consociational
democracy” following the work of Arend Lijphart50 that was based in
part on the theory of John C. Calhoun. The theory explains democracy
in several pluralist societies and includes the instrument of minority
veto. The danger of minority tyranny which may strain cooperation is
belittled on the premise that mutual interests should exclude such
action. Lebanon in 2006-2007 must be the exception that proves the
rule. The country was paralyzed by minority tyranny for over half a
year.51
The most positive analysis of the system I have come across is that
of the late Iliya Harik. He adopted the viewpoint of Charles Taylor and
produced an article in the collective work Lebanon in Limbo.52 Harik
redefines secularism since secularism as a neutral ideology does not
resolve problems arising from multi-culturalism. Secularism, he claims,
is a procedural matter, not a substantive doctrine. For him, the
overlapping social spaces in Lebanon are indicative of secularism in a
contextual model in that they represent an extension of the recognition
of cultural differences into the public sphere. He describes the
communal intermingling which has taken place, especially in Beirut,
and which has formed an over-arching Lebanese identity. This he sees
not as integration but as secularization.
His reflections on the State are also of interest. In the multicultural
49 See Rights and Wrongs: An Interview with Nicholas Wolterstorff, CHRISTIAN CENTURY,
Mar. 25, 2008, at 25-30.
50 AREND LIJPHART, DEMOCRACY IN PLURAL SOCIETIES: A COMPARATIVE EXPLORATION
(1977); see also ANTOINE NASRI MESSARRA, LE MODELE POLITIQUE LIBANAIS ET SA SURVIE:
ESSAI SUR LA CLASSIFICATION ET L’AMENAGEMENT D’UN SYSTEME CONSOCIATIF (1983);
Michael Hudson, Trying Again: Power-Sharing in Post-Civil War Lebanon, 2 INT’L
NEGOTIATIONS 103 (1997); Antoine Messarra, Etat et communautés au Liban, 1 LES CAHIERS DE
L’ORIENT 85 (1986).
51 Here, the reflection of Rabbath is pertinent:
L’analyse des éléments constitutifs du Liban sociologique à laquelle on vient de se
livrer—par bien des raccourcis il est vrai—conduit à la constatation que le régime
politique libanais repose entièrement sur des soubassements organiquement
communautaires et que l’Etat ne saurait traduire, par consequent, que la projection
d’une structure, corporellement confessionelle. Le Liban apparaît ainsi, en dernier
ressort, sous la forme d’un agrégat de communautés qui s’assamblent, en raison des
liens que la géographie et l’histoire ont noués entre elles en une sorte de fédération
tacite. Ce n’est certes pas l’Etat fédéral, en son sens constitutionel, que le Liban a
finalement réalisé. C’est plutôt une vie relationnelle dont les présupposés se
composent d’unités qui sont fédérées comme par l’effet d’une génération naturelle.
Fédération dont les unités s’imbriquent et s’étagent à des niveaux inégaux, leur
importance dépendant étroitement du nombre des adeptes que comprend chaque
communauté et parfois, comme pour le cas des Maronites, de son rôle historique.
RABBATH, ESSAI, supra note 6, at 147-48.
52 Iliya Harik, Toward a New Perspective on Secularism in Multicultural Societies, in
LEBANON IN LIMBO: POSTWAR SOCIETY AND STATE IN AN UNCERTAIN REGIONAL
ENVIRONMENT (Theodor Hanf & Nawaf Salam eds., 2003).
2009] C H A N G I N G T H E L E B A N E S E C O N S T I T U T I O N 2531
53 In a similar vein, Theodore Hanf chose the following as the title of his monumental work
on Lebanon: COEXISTENCE IN WARTIME LEBANON: DECLINE OF A STATE AND RISE OF A
NATION (1993).
54 See Harik, supra note 52.
55 See Hyam Mallat, Editorial, Le Confessionnalisme—Performance de L’Histoire et Infirmité
des Politiques, L’ORIENT-LE JOUR (Beirut), Apr. 18, 2009, at 5. Mallat writes:
Car finalement qu'est-ce donc que le confessionnalisme au Liban? Et ce
confessionnalisme, est-il vraiment une tare et une honte de notre société? Il faut bien
commencer par dire que ce ne sont pas nos politiciens qui ont inventé le
confessionnalisme. Ils se contentent de le pratiquer au gré de leurs intérêts et de leurs
humeurs. Car le confessionnalisme n'est pas une création administrative et
bureaucratique. Il est en fait la résultante et, en somme, le matériau d'édification du
Liban. C'est à force de le pratiquer mal qu'il apparaît comme une maladie de notre
société, tant ceux qui y recourent sont à même d'en présenter les perversités plutôt que
de mettre en valeur ses qualités.
Id.
2532 CARDOZO LAW REVIEW [Vol. 30:6
DIALOGUE
56 MUHAMMAD MAHDI SHAMS AL-DIN, THE TESTAMENT (Hanadi Assaf trans., 2008).
57 Id. at 32.
58 See Choucair-Vizoso, supra note 3, at 115-36.
59 FRED M. FROHOCK, PUBLIC REASON: MEDIATED AUTHORITY IN THE LIBERAL STATE
(1999).
2009] C H A N G I N G T H E L E B A N E S E C O N S T I T U T I O N 2533
60 Note that Muslim law—the shari’a— as a jurist’s law is a personal rather than a territorial
law.
61 See Paul Salem, Op-Ed, Thoughts on a Truly National Dialogue, DAILY STAR (Leb.), Sept.
16, 2008, available at http://www.carnegieendowment.org/publications/index.cfm?fa=view&id
=22125&prog=zgp&proj=zme (last visited June 30, 2009).