Lebanon: Presidential Election and the Conflicting Constitutional Interpretations

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Executive Summary

Lebanon must elect its next President by November 24, 2007.  The Speaker of Parliament abstained from calling to order an electoral meeting convened for September 25, 2007, for lack of a quorum.  Because the Constitution is silent on the issue, there are two interpretation as to the quorum required.  One interpretation requires a quorum of a two-third majority of the members of Parliament.  The other requires a quorum of half plus one.  The Constitutional Court that could have resolved this issue has been nonfunctioning since 2005.  Unless the ruling majority and the opposition agree on a solution to these differing interpretations, Lebanon may face a major constitutional crisis.

Introduction

Lebanon may face its first major constitutional crisis since its creation in 1920, following World War I in which the Ottoman Empire lost its Arab provinces to the Allied Forces.[1]

The first Lebanese Constitution (external link) adopted in 1926 is still in effect today, as amended. This Constitution mandates that Lebanon be a democratic parliamentary republic with the top political offices consisting of the office of President of the Republic, the office of Prime Minister, and the office of Speaker of Parliament.[2]

In addition to the Constitution, Lebanon abides by an unwritten power-sharing agreement known as al-Mithaq al-Watani, or National Pact, under which the office of President is allocated to the Maronite Christians, the office of Prime Minister to the Sunni Muslims, and the office of Speaker of Parliament to the Shiite Muslims.[3]

The President of the Republic is elected in secret ballot by the Parliament for a six-year term and cannot be reelected until six years have passed from the end of his term.[4]

In 2004, despite the United States statement supporting the process of the presidential election “according to the established Lebanese constitution,”[5] the Lebanese Parliament amended the Constitution to exempt President Emile Lahoud from this reelection restriction and extended his term in office for three years, set to end on November 23, 2007.[6]

The Speaker of Parliament recently convened a meeting for September 25, 2007, in order to elect the new President.[7] When the attendees did not reach a two-third majority of the total members of Parliament, the Speaker abstained from calling the meeting to order for lack of a quorum and announced October 23, 2007 (external link), as a new date for the meeting.[8]  This announcement came amid a continuing sharp division between the ruling majority coalition and the opposition as to the number of deputies (members of Parliament) needed to constitute a quorum for the election of President.[9]

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Lack of Clarity in the Constitution

The Constitution is silent on the issue of the quorum needed to call to order a parliamentary presidential electoral meeting.  Article 49 describes the qualifications of those who may be elected to the presidency, the mode of election, the term of office, and the restriction on reelection, but does not specify the quorum needed to be present before the electoral meeting is called to order.  Paragraph 2 of article 49 stipulates, in pertinent part:

  • The president of the republic is elected in secret ballot by a two-third majority of the parliament in the first round. An absolute majority is sufficient in the subsequent rounds of voting. The term of the president in office is of six years and he cannot be reelected until after six years from the end of his term …

While this article specifies the number of votes needed to elect the President, in the first and any subsequent rounds of voting, it does not address the question of the quorum needed to call the electoral meeting to order.  Article 74 also describes the election process of the President when the office becomes vacant prior to the end of its regular term, such as in the event of death or resignation.  It stipulates that:

  • [i]f the office of president becomes vacant because of the death or resignation of the president, or for any other reason, the parliament shall, as a matter of law, meet immediately to elect a successor. If the vacancy occurred while the parliament is dissolved, the electorate shall be convened immediately and the parliament shall, as a matter of law, meet upon the completion of the voting process.

Here again there is no mention of the number of deputies needed to constitute a quorum of the electoral meeting when any of the relevant circumstances occur.

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Quorum: Conflicting Interpretations

In the absence of a clear provision designating the quorum needed to elect the President, the Constitution is open to differing interpretations.  There are two views on this issue.

The first view relies on article 34 of the Constitution to argue that the quorum needed to elect the President is half plus one of the total members of Parliament.  Article 34 stipulates the following:

  • The parliament is not validly convened unless a majority of the members constituting it is present. Decisions are made by a majority vote. If the vote is evenly divided, the matter being debated fails.

Article 34 is general in scope and the argument is that it applies whenever the Parliament meets, to conduct its business, whether legislative, investigative, or electoral.  The view is that, unless there is a specific provision to the contrary, the quorum of any meetings of Parliament, including presidential electoral meetings are validly constituted by the presence of a majority of the total members of Parliament.  Article 34 does not apply, for example, to determine the quorum of meetings designated to discuss or vote on constitutional amendments, because article 79 specifically designates a quorum for such meetings different from the one contained in article 34:

  • When a proposed amendment to the Constitution is submitted to Parliament, the Parliament cannot debate or vote on it unless a two-third majority of the members legally constituting the Parliament is present; and the voting shall be made by a likewise majority.

Based on this first argument, because neither article 49, nor article 74, nor any other article designates a special quorum for the presidential electoral meetings, the quorum required to elect the President is the simple majority, meaning half plus one of the total members of Parliament as provided for in article 34.  Under this interpretation, the Speaker should have called the September 25 meeting to order, and let the election of the new President proceed because seventy-four of the 128 members constituting the Parliament were present.

The second view, however, relies on article 49 to argue that the quorum is a two-third majority of the total members of Parliament.  Article 49 always requires a two-third voting majority to elect the President in the first round.  If the quorum were half plus one, there would have been no need to require the two-third voting majority when the number of deputies present at the meeting does not exceed the quorum.  Otherwise, such a requirement becomes an exercise in futility.  In other words, if the quorum were only half plus one there would have been no need to require a two-third voting majority in Article 49.

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Lebanese Scholars’ Opinions

A number of Lebanese legal scholars have espoused the second view even before the recent controversial debate arose.  In a treatise he wrote on the Lebanese constitution, the late Edmond Rabbat, a law professor and constitutional expert, discussed the issue of the quorum required for the election of the President.  He wrote that in determining the quorum for the presidential election one must look exclusively to article 49.  Article 34 is, in his opinion, applicable only to meetings in which the Parliament conducts its legislative business and does not control its additional function as elector of the President.  He explains that the function of electing the president is independent from the Parliament’s legislative function to which article 34 applies.[10]

Another legal scholar, Abdo Oueidat, a former judge of the Majlis Shura al-Daoula (State Administrative Court), discussed the legal implications resulting from a concern raised during the presidential election of 1958.  In 1958, there was a possibility that the attendance of the electoral meeting might not reach a two-third majority due to the armed conflict that was hindering the movement of some deputies and preventing them from physically reaching the Parliament building.  Even though this possibility did not materialize, the question arose whether the voting could proceed with less than two-thirds of the deputies in attendance.   In his book on constitutional law, Judge Oueidat responded to this question by supporting the view that the presence of the two-third majority was necessary for the election to proceed.[11] Judge Oueidat’s response indicates that the quorum, at least in the first round of voting, should be two thirds of all members of Parliament; otherwise, there would have been no concern about the 1958 election.[12]

Neither Professor Rabbat nor Judge Oueidat expressly stated that the quorum in the second and subsequent rounds of voting would drop from two-thirds to half plus one.

Another legal scholar who supports the view requiring a quorum of a two-third majority for the presidential electoral meeting is Bahij Tabbarah, a former law professor and Minister of Justice. In an interview with a local magazine (external link), Al Afkar he unequivocally expressed an opinion to this effect.[13]

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The Turkish Comparison

An interesting comparison may be made to a recent similar constitutional dispute in Turkey.  Article 102 of the Turkish Constitution[14] is similar to articles 49 and 74 of the Lebanese Constitution in that it requires a two-third majority in the first round of voting to elect a president while it is silent on the issue of the quorum.  The Turkish Constitutional Court ruled on the matter, confirming that the quorum is two-thirds (external link) of all members of Parliament, not just those present at the vote.[15]

Finally, it should be noted that on two occasions in the past the Lebanese Parliament refrained from proceeding with a presidential election because a quorum was lacking.  The president was not elected until a two-third majority was present.  These occasions were in 1976[16] and 1982.[17]

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The Approaching Constitutional Crisis

The controversy surrounding the quorum needed to convene a presidential electoral meeting is the most contentious issue dividing the ruling coalition majority and the opposition in Lebanon today.  The ruling coalition controls sixty-eight of the 128 seats of Parliament, not including the seat vacated by the recent assassination of one of its deputies, the late Antoine Ghanem.  The opposition controls the remaining fifty-nine seats.[18]

The first interpretation gives the ruling coalition full control of the election process and allows it to elect any person it chooses to be the next President of Lebanon.  The second interpretation gives the opposition the power to block the election process and force the ruling coalition to reach a compromise on who should be the next President.

Normally, this constitutional dispute should have been resolved by referring the matter to the Constitutional Court established under Article 19 of the Constitution.  This Court, however, has been nonfunctioning (external link) since 2005, [19] and cannot be revived in time to elect the successor to President Lahoud.

Unless the ruling coalition and the opposition come to a common understanding on how to resolve their differences, Lebanon may face a major constitutional crisis in the election of its next President.

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For more information on Lebanon see:

Prepared by Issam Michael Saliba, Senior Foreign Law Specialist, for the Middle East and North Africa.

October 2007

  1. See Edmond Rabbat, Al-Wasit fi al-Kanon al-Doustouri 315-318 (1970).
    [Back to Text]
  2. The Lebanese Constitution of 1926 as amended (the Lebanese Constitution), available at the official website of the Lebanese Parliament, http://www.lp.gov.lb/doustour/default.htm.  [Back to Text]
  3. Rabbat, supra note 1, at 471-486.  [Back to Text]
  4. The Lebanese Constitution, art. 49.[Back to Text]
  5. Lebanon, Daily Press Briefing by Adam Ereli, Deputy Spokesman, U.S. State Department, Aug. 25, 2004,  available at http://www.state.gov/r/pa/prs/dpb/2004/35740.htm. [Back to Text]
  6. John Kifner, Lebanon Agrees to Extend Term of Leader Imposed by Syria, NEW YORK TIMES, Sept. 4, 2004, available at http://www.nytimes.com/2004/09/04/international/middleeast/04lebanon.html?_r =1&n=Top%2fReference%2fTimes%20Topics%2fPeople%2fL%2fLahoud%2c%20
    Emile&oref=slogin    . [Back to Text]
  7. Article 73 of the Constitution provides that “One month at least and two months at most prior to the end of the President’s term in office the Parliament shall be convened by the Speaker to elect the new president.  If the Parliament was not convened for this purpose, it shall convene, as a matter of law, on the tenth day preceding the end of the President’s term in office.”   The Constitution is silent on whether the Parliament can meet to elect a president, and under what conditions, during the first twenty days of the last month prior to the end of the President’s term in office.   This period is not covered by article 73.
    [Back to Text]
  8. Edward Yeranian, Lebanon’s Parliament Puts off Presidential Election Until October 23, VOA News, Sept. 25, 2007, available at http://www.voanews.com/english/2007-09-25-voa15.cfm. [Back to Text]
  9. Hussein Dakroub, Lebanon opposition blocks president vote, USATODAY.com, Sept. 25, 2007, available at
    http://www.usatoday.com/news/world/2007-09-24-453240939_x.htm. [Back to Text]
  10. See RABBAT, supra note 1, 676-678. [Back to Text]
  11. Abdo Oueidat, An-Nouzum ad-Doustouriah 516 (1961).[Back to Text]
  12. In a footnote on page 669 of his treatise (supra note 1), Edmond Rabbat, contrary to the opinion of the author of this report, read Judge Oueidat’s discussion as supporting a simple majority as a quorum. [Back to Text]
  13. See Interview with Dr. Tabbarah, Al Afkar Magazine Online, issue Number 1302,
    http://www.alafkar.net/issues.php?id=87 (last visited Oct. 2, 2007).
    [Back to Text]
  14. Article 102 of the Turkish Constitution, The Constitutional Court of the Republic of Turkey website, (PDF, 320k)  (last visited Oct. 2, 2007) (unofficial source, in Turkish). [Back to Text]
  15. Turkey's presidency vote annulled, BBC News Online, May 1, 2007, available at
    http://news.bbc.co.uk/2/hi/europe/6612831.stm. [Back to Text]
  16. Helena Cobban, The Palestinian Liberation Organization, 70-71 (Cambridge University Press, 1984) available in relevant part online at http://books.google.com/books?id=wwntdx2IFAEC&pg=PA71&lpg=PA71&dq=
    election+elias+sarkis+quorum&source=web&ots=xuEzHghdFQ&sig=
    r90xwc9FA95AmkLhgFGTiuboGE0     [Back to Text]
  17. Marguerite Johnson, Election Under the Gun, Time, Sept. 6, 1982, available at
    http://64.233.169.104/search?q=cache:PXdWlS5hw2AJ:www.time.com/time
    /magazine/article/0,9171,949549,00.html+election+of+bashir+gemayel+
    quorum&hl=en&ct=clnk&cd=5&gl=us    . [Back to Text]
  18. Sam F. Ghattas (Associated Press), Lebanon Delays Presidential Election, ABC News, Sept. 25, 2007, available at http://abcnews.go.com/International/wireStory?id=3646466. [Back to Text]
  19. Seth Colter Walls, Lebanon: Setbacks In Selecting a President, Msnbc.com, Sept. 24, 2007 available at
    http://www.msnbc.msn.com/id
    /20961058/site/newsweek/print/1/displaymode/1098.     [Back to Text]

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Last Updated: 08/07/2012