One of my readers, EJ, made a great intervention in the comment section of the last post, in response to a remark I made about Lebanon being a unitary republic, not a federal one. As the semester is looming over my head along with several writing deadlines, I thought I’d crowd-source today’s post to the readership. I’m very interested in the questions of federalism, consociationalism, and so on, but rather than tell you what I think, I’m going to post EJ’s entire comment and let the conversation proceed from there.
For those who are interested in reading more about these issues, here are some links to other recent posts on the same subject:
Well, where do I begin? I do not want to do a topo on this here but the mix of legal and de facto juxtapositions of powers is evident. Lebanese sects have constitutional jurisdiction on certain fields of competency, be it in:
- Education (while all following general guidelines of the state, each sect has its own federation of schools, curriculum, books, practices, days off, etc.),
- Personal civil rights and rights of the person (in no other place is the citizen subject to a personal right LEGISLATED by his or her sect and not the state),
- Property rights (as to trusts, rights and mostly restriction as to accession to property), as well as wills and estates,
- Religious sects run and operate their health system, hospitals, guidelines, procedures. Again, while under the rule of the central state they have much of their own jurisdiction to establish norms, procedures, funding, etc.
- Marriage, divorce, parenthood (legal rights and obligations of parents, adoption, legal guardianship), culture (de facto control of certain geographical areas and imposing bans on sale of alcohol, allegiance to a certain way of living, etc.)
The separation of powers between sects as well as the mandated allocation of seats in parliament, I argue, is there in order to enshrine a current state of incomplete federalism. What you called underrepresentation of Muslims and over representation of Christians is basically the constitution recognizing that Lebanon is now a federal state but cannot be called one officially for political reasons. The compromise was that until decentralization and deconfessionalization take place, all the securities that such system would have offered the different sects would be, since Taef, enshrined in the 50/50 split. Article 22 of the constitution is clear, the religious communities form the basic units of the senate, ie, they are the founding blocks of the nation and are to Lebanon what geographic entities (states, provinces) are to other federal states.
Until such federalism is promulgated effectively (i.e. senate established), parliament, i.e. the supposed sole holder of legislative jurisdiction is itself split and guarantees equal representation of these building blocks.
The judicial system is, as a result of the allocation of jurisdiction in legislative matters, also not a unitary system in that each order of government (or legislative branch) has established its own courts (judges and all).
These may seem mundane, unimportant and natural to us but compare it for a second to Canada where despite the confederation’s initial intent in creating a decentralized federal system, it has become a rather centralized one. The federal government has usurped most of the powers and overlapping jurisdictions through its spending capabilities. Provinces in Canada have jurisdiction over, personal civil rights, rights ensuing from a divorce (although not divorce or marriage itself), rights relating to the person, health, parenthood, education, some and not all judicial matters and courts, and the upper chambers is a useless as our current Lebanese president speaking to decentralization!
Like Canadian provinces, the Lebanese sects internally set up their own rules, mostly circumscribed by the “Federal” parliament who uses its spending prerogatives to ensure that provinces fall within general guidelines of the federal government (i.e. medicare, daycares, etc.).
I understand the difficulty the general public faces to admitting this reality mostly since in every other federal state the unit is geographical but it is almost identical in Lebanon, only that the jurisdiction is not physical, it is a sect and it applies to the person. A maronite will be a maronite wherever he may be Lebanon, he cannot divorce legally until he changes sects. The laws imposed by an order of government, different than that which is in power as a result of parliament, and enshrined in the constitution apply to him. He must submit himself to the jurisdiction of a court which, is different from the courts of the federal state, which court has its own rules promulgated by the sect leaders, and whose judges are not named by the government or by the state, in order to nullify his wedding, obtain legal access to his children and or divorce his wife should he be non-Maronite. There is no other definition or explanation for it, through the constitution, jurisdiction over these matters has been given to a different order of government and that is a sect, and not the federal state.
A maronite can go to a sunni school and vice versa, idem for hospitals but, in those sectors, that citizen (maronite or sunni or hatever their confession may be) are not considered Lebanese or under the sovereignty of the state, they will be, by virtue of our legal system, subject to the jurisdiction of the sect, the federal unit (just like when a resident of NY goes to Texas).
I am not saying it is a perfect system, I am not even endorsing it, but when comparing it on a spectrum, it looks much more like a personal federated state with a strong federal government than a unitary state that is decentralized and in all honesty nothing at all like a unitary central state.
In closing keep in mind, the federation is not geographical but personal, it is based on the confession of the person.
As to election law, again the political class is a master magician. we are presented with the orthodox law and the real discussion is and has been taking place far from this proposal. do pple not ask themselves why and how GMA changed his mind about this law? What about the M14 Christians? Would m14 Christians appreciate an electoral law that has the approval of all other sects but to which they are opposed, whatever the reason may be? What is the difference between any of the proposed proportionality drafts if the initial flaw is that an entire sect (i.e. by extension geographical area) is controlled by the force of guns while democracy is up and running within the other sects? If that is the reason M14 rejected to government draft, how does the orthodox draft fix this problem? Christians and Sunnis will be divided while Shiites will be united under (let’s be honest) one flag and they will gain control over the next parliament and (let’s face it) the next president. What role will Jumblatt have, if any, should the balance of power skew heavily in favour of one party of the other with him loosing the balance?
Keep up the great work QN.