Law Is Lebanon’s Path To A New Spring

By David M. Beatty
This commentary was published in The Daily Star on 27/04/2011

Springtime is always pleasant in the Arab world. This year could be one of the best ever. Along with the jasmine and other spring flowers, there are signs that justice, democracy and the rule of law may also bloom in the region in the near future.

All over the Middle East and North Africa people are saying to their rulers: Enough; the corruption, repression and indifference to their suffering must stop. Arabs everywhere are demanding better government by and for themselves. Yet the climate is not the same in each country. Some places will flower more than others.

Some parts of this Arab spring will stay cold. One country whose spring lacks any sign of spiritual rebirth is Lebanon. The Lebanese have been living under the threat of armed conflict and without a functioning government since the beginning of the year. Politics in Lebanon is frozen between the paralysis of living under a caretaker government for the last three months and the explosion that could be triggered if the Special Tribunal for Lebanon proceeds with the indictments in the killing of the late prime minister, Rafik Hariri.

Lebanon’s tragedy is a story of sectarian pettiness and violence, not the arbitrariness and injustice of one-man rule. Rather than the brutality and venality of the autocrat, Lebanon suffers from a weak and ineffectual government of oligarchs, or no government at all.

Government doesn’t work well in Lebanon because it is based on a confessional, consociational power-sharing system. In theory, the leaders of the different religious communities are supposed to work together to build a national agenda that ensures that no one group gets hurt. “No victors, no vanquished,” has become the mantra of the political elite. Governmental gridlock has very often been its effect.

Although the pathology of sectarian politics is different than the tyranny of the dictator, the good news is that the same prescriptions remedy both. No matter where a ruler’s seat of power, the standards of good governance are the same: free and fair elections, separation of powers, and the rule of law are universal antidotes to all forms of tyranny and despotism, whatever their shape or size. Critically, in the last 20 years, an independent, impartial judiciary has come to be seen as the last line of defense against rulers tempted to misuse their power.

Using judges to maintain integrity in government is especially relevant for Lebanon. In other countries with a rich diversity of ethnic and sectarian communities judges have had extensive experience with the sorts of religious and cultural conflicts that consume the Lebanese.

In India, Canada, Switzerland and Spain, judges have handled communal disputes in ways that are balanced and fair to all sides. In the Swiss canton of Vaud and the Canadian province of Quebec, for example, local populations establish most of the rules (pertaining to education, health care, roads and police) that directly affect their lives while also respecting the basic human rights of minorities and people with different values than their own.

When their independence is respected and they do their job, judges can protect human rights and the sovereignty of each community, whether religious, ethnic, linguistic, over its own way of life. Where the rule of law is enforced, the result is a kind of modern upgrade of the old Ottoman millet system that can protect rather than penalize minorities.

The principles that judges use to balance the interests of individuals and the communities to which they belong guarantee equal treatment for everyone, regardless of religion or ethnicity, as well as maximum control over the parts of their lives that people care about most. When conflicts occur between or within communities, judges look for solutions that will keep the pain and suffering to a minimum.

The Taif Accord that brought an end to the civil war in Lebanon actually embraced the idea of enlisting judges to protect the health and moral character of government. In 1990, the Constitution was amended to establish a Constitutional Council to watch over the political elite. However, its independence was not respected and the institution almost never had a real chance to do its job.

After the success that judges have had in managing sectarian and cultural conflicts in other parts of the world, it is time for Lebanon to give jurists a chance. Law has a much stronger record when it is used to coordinate relations between communities than political gimmicks such as consociationalism. The idea that power-sharing between rival groups is the best way to protect the interests of minorities was fashionable in the 1970s and 1980s. Since then, however, it has lost its luster. Today Belgium is the only other country that makes linguistic and religious groups the basic unit of political participation and it has been unable to form a government for almost a year.

Pursuing the path of law reform in Lebanon should be easy. There is no need for protests or fighting in the streets. The Constitution already directs the politicians to study ways the sectarian character of Lebanese politics can be replaced with something better. Two decades on since Taif, an effective committee of jurists is still waiting to be formed.

Almost 2,000 years ago Beirut was one the most important centers of law in the world. It was where Justinian’s code of Roman law was written. If Lebanon’s leaders make law sovereign again, their people would be able to reap the full fruits of this Arab spring.