“Constitutional Council Decision on Legislation in the Absence of a President: Legal Controversies and Implications”

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The Constitutional Council’s decision to reject appeals against the extension law for municipal councils shed light on a legal problem raised by stakeholders, related to the extent of building on this result in order to enshrine the parliament’s right to legislate in the absence of a president.

Since, from an opposite angle, there were basic risks, to which the appellants may not have heeded, which are the effects of refusing or rejecting the appeal and giving the law of questionable legitimacy great power, which is the legality of legislation in the absence of the President of the Republic, and it is the mother battle that you are waging at the present time, so that It rejects any meeting of the House of Representatives except to elect the President of the Republic.

The extension law in the absence of the president is constitutional and with the approval of the Constitutional Council, just as the explanatory reasons for the decision are what the opponents of the opposition call for, which is the continuity of the facility of constitutional value, as the Constitutional Council prioritized the continuity of the constitutional facility or institution over the constitution, which is also what the President of the Constitutional Council, the judge, referred to. Tannous Meshlab, in his media appearances, spoke about the importance of continuing the public service, and not making it vacant.

The head of the JUSTICIA human rights organization and the dean of the Faculty of International Relations at the International Business University in Strasbourg, Dr. Paul Morcos, told An-Nahar that one of the matters dealt with in the Constitutional Council’s decision issued on 30/5/2023 in relation to the appeal against the law extending municipal and elective councils, is the subject of controversy. In terms of the extent of the permissibility of convening the Assembly in its current capacity as an electoral body for the President of the Republic, on which most of the appeals based their arguments, it also dealt with the extent of the permissibility of legislation in light of the presidential vacancy, according to what was stipulated in Article /75/ of the Lebanese Constitution, which states the following: The council convened to elect the President of the Republic is considered an electoral body, not a legislative body, and it must proceed immediately to elect the head of state without discussing any other work.

In this context, the Constitutional Council considered that “if the intention of the constitutional legislator had been to limit the work of the parliament to the period of presidential vacancy, by electing the president without any other action, he would have used peremptory phrases in this direction, as he went to in many texts, or he would have stipulated that explicitly.” For example, the use of the phrase “when the presidency becomes vacant, the House of Representatives becomes an electing body, and it is not entitled to do any other work before electing the President of the Republic.”

He also considered that the purpose of Article /75/ of the constitution is to give priority to the election of the President of the Republic and urged the parliament to expedite this election and prevent it from doing any other work or discussion in the session designated for the election, as for other public affairs within the competence of the House of Representatives, It can be presented in other sessions for presentation, discussion and decision-making.

In addition to considering it, it cannot be said that during the period of the presidential vacancy, the parliament refrains from carrying out the actions that fall within its competence, because going in this direction leads to limiting all the affairs of the country in the hands of the government and frees its hand in its conduct without any oversight, with the abuse that this may entail. The use of power, and this is what the Constitutional Council considered completely disturbing the balance between powers, as well as halting the wheel of legislation and harming the country’s supreme interest, especially when the presidential vacancy period is prolonged.

Thus, the Constitutional Council, in its decision issued on 30/5/2023, resolved the controversy surrounding legislation in light of the presidential vacancy, and legislated legislation in this case.

Constitutional expert Dr. Adel Yammine agrees with his colleague’s opinion on the constitutional decision, but separates from the issue of legislation in general, which Yammine relates to exceptional and very specific cases, indicating that this decision opens the door to legislation, but only in cases of extreme necessity and exceptional circumstances.

He told An-Nahar, “The rule is that legislation is not permissible, but some exceptional circumstances impose themselves and must be followed.”

Yameen stressed that legislation, in the absence of the president, loses an essential link in the legislative mechanism, and constitutes a violation of the principle of separation of powers and cooperation between them. The constitution gave a temporary veto right to the President of the Republic by returning the law to the House of Representatives, so that re-putting it to vote requires two-thirds of the House to approve it, in addition to To challenge it before the Constitutional Council, and these powers are attached to the President of the Republic and cannot be replaced.

Yammine considered that the exceptions are represented in ensuring the continuity of institutions and facilities in a way that does not harm the interest of the citizen, noting that the Legislation and Consultation Authority has issued some legal opinions regarding what is exceptional, and what should not be exceeded and placed in the category of exception.

In turn, the constitutional expert, Saeed Malik, considered that it is proven that the decision of the Constitutional Council indirectly legislated legislation in the absence of the President of the Republic, and it is clear that the Constitutional Council has considered that the House of Representatives is not only an elective body in the absence of the President, but also a legislative body. He considered that the absence of peremptory phrases in Article 75 of the Constitution opens the door wide for the possibility of diligence in keeping the parliament’s power as it is with legislation and oversight in addition to its mission as an electoral authority.

He told An-Nahar: “Today, the Constitutional Council was supposed to go to a more comprehensive interpretation of the provisions of the constitution, and not only be satisfied with the interpretation of Article 75, but rather go to the symmetry of Article 75 on Article 49 and Article 74 of the constitution, since this sympathy would lead to a rule to modify the course of the Council.” Constitutional in terms of considering the legislature a legislative body, in addition to being an electoral body.

In his opinion, “the Constitutional Council presented a gift to the system in terms of legislating the initiative to enact laws during the presidential vacuum period, which required the Constitutional Council to combine the articles with each other and interpret them within the framework of a single interpretation that would lead to considering the parliament as an electorate body only and not a body.” legislative at all.