Constitutional Mayhem: No Government, No President

Lebanon is poised for executive-level disarray ahead of a presidential vacuum and caretaker cabinet.
Connor Kanso

October 13, 2022

Parliament convened today in its second attempt to elect a new president, yet just minutes after it began, the session ended due to a lack of quorum.  The next attempt to elect a head of state will occur on October 20 ahead of the fast-approaching constitutional deadline of October 31. Still, the third time lucky seems all the more unlikely given Lebanon’s fragmented parliament and lack of consensus on contenders. A presidential vacuum would mean that the current caretaker government will assume the roles of the presidency, leaving Lebanon’s entire executive branch in the hands of leadership the country hasn’t yet voted into confidence.

The country’s last presidential elections occurred in 2016 and resulted in a presidential vacuum for two and half years, raising fears that the same might occur this time around and leave Lebanon in a state of executive disarray. Today, the stakes are even higher as the country drags through a third year of an economic and financial collapse that has left 80% of the population in poverty and has seen the lira lose 95% of its value.

In the face of seemingly never-ending caretaker governments and a likely presidential vacuum, the future of Lebanon’s executive branch – made up of the President, Prime Minister, and Council of Ministers – is anything but certain. A presidential vacuum could spell disaster for Lebanon’s executive branch, which has been operating under caretaker capacity since the Parliamentary elections in May. As a crisis looms, citizens may look to the constitution – the foundation of Lebanon’s sovereignty – for guidance.

Caretaker Government

Since the 2005 assassination of former Prime Minister Rafik Hariri, instability in the executive branch has become the norm. Lebanon has witnessed not only more presidential vacuums, but also governments serving in caretaker capacities for longer periods of time. [1] Caretaker governments are, per definition, meant to serve for only a short period of time, ideally a few days, to ensure the continuity of public services. Yet, Lebanon’s caretaker governments have ruled for months, even years.

In fact, since the popular uprising of October 2019, Lebanon has been ruled by an interim government longer than it has been by a fully empowered government. Former Prime Minister Hassan Diab’s government served in a caretaker capacity for over a year, from August 2020 to September 2021, after which Prime Minister Najib Mikati won a parliamentary vote of confidence to form a government. Yet, Mikati’s cabinet was deemed resigned following parliamentary elections in May 2022 and has since been serving in a caretaker capacity.

“A caretaker government’s powers are very limited, especially since the Taif Agreement brought amendments to the Constitution” said Paul Morcos, founder of the law firm Justicia. “The caretaker government can no longer exercise even the minimum functions it had before.” Article 62 of the Taif Agreement, which brought an end to the Lebanese Civil War, stipulates: “The government shall not exercise its powers before it gains confidence nor after it has resigned, or is considered resigned, except in the narrow sense of a caretaker government.” [2]

According to Morcos, caretaking is commonly understood to be limited to managerial functions to avoid damages to public services. “It cannot bring any commitments on behalf of the state, which could be left for the incoming government,” he said.

Exceptional Circumstances

The narrow duties of an interim government can be widened in two scenarios. First, when the caretaking role does not last for days, but months or years. Second, in times of crisis or exceptional circumstances. (commonly known as Zorouf Al Estethna’ia).

“If the mandate of a caretaker government lasts for a long time, such as a year or two, the scope of its work is expanded,” explained Mohammad Al Moghabat, a constitutional law researcher.

In face of the economic collapse in the country, it is fair to assume Lebanon is currently operating under exceptional circumstances.

“At such a time, a caretaker government should interfere,” said Morcos. “Saying it has limited powers does not mean it should not intervene to prevent more losses or damages.”

However, exceptional circumstances come with the risk of misuse. The executive branch could use these circumstances to justify operating outside of its constitutional mandate to push through a political agenda, rather than serve the public interest.

Politicians serving their own interests at the expense of the state comes as no surprise to most Lebanese. The current tension between President Michel Aoun and Caretaker Prime Minister Najib Mikati is only the latest flare up.

To resign or not to resign?

Many Lebanese are wondering who is to captain the ship as Lebanon sails from one titanic catastrophe to the next, still under a caretaker cabinet and prime minister, with no emerging presidential contenders in sight.

The Lebanese Constitution states that in the event of a presidential vacancy, the prime minister is to assume the role of the president, albeit in a narrow capacity.

“There is no clear legal text that determines if a caretaker government can take on the role of the presidency or not,” said Almoghabat. “But the principle of continuity should persist.”

This means that, if Lebanon still has a caretaker government at the end of the current presidential term, the interim government should assume the role of the president.

Some reports claim President Aoun seeks to issue a decree stipulating the resignation of the Mikati government . However, the constitutionality of such a manoeuvre is questionable. [3]

“Aoun wants to introduce his own people into a new cabinet, specifically his son-in-law,” said Hilal Khashan, Professor of Political Studies and Public Administration at the American University of Beirut.

Given that the Mikati government was considered resigned following the May parliamentary elections, President Aoun only needs to issue a decree accepting the resignation of the prime minister and his cabinet. Yet, Aoun cannot deem the Mikati government resigned before a new government is formed.

According to Morcos, it is a “constitutional custom” for the president to issue a decree which formally regards the caretaker government as resigned. However, the president must issue three decrees at the same time: the acceptance of the government’s resignation, the acceptance of the prime minister’s resignation, and the appointment of a new prime minister.

“As soon as there is consensus between the president and prime minister, the three decrees will be issued simultaneously,” said Morcos.

According to Almoghabat, constitutional customs have a high legal status in order of Lebanese jurisprudence. “First there is the constitutional text, then the constitutional customs, then the law,” he explained.

What next?

Electing a new president requires an absolute majority, which is unlikely in light of Lebanon’s highly fragmented parliamentary makeup and a lack of viable contenders on the horizon. In the event that no new government is formed before the end of Aoun’s term, Lebanon could find itself in a constitutional crisis.

Despite assurances from President Aoun and Caretaker Prime Minister Mikati to form a new government before the end of the presidential term, “the PM has not been able to form a cabinet in many months, so why would he be able to form a cabinet in the last 3 weeks? I doubt it very much,” said Khashan.

Meanwhile, the stakes are arguably higher than ever before. To pull the country out of the economic, financial, and political crises requires a set of comprehensive reforms as stipulated by the International Monetary Fund. Whoever emerges at the helm of the executive branch will play a pivotal role in steering the country until the presidential void is filled.

The author and editors would like to express their heartfelt thanks to Charbel Korkomaz for his steadfast support in contributing to the article.