Par JACQUES MACHAALANI l’Orient Le Jour 7 Mars 2017
In these times of political negotiations on a new electoral law supposed to replace the eminently sectarian law of 1960, it is opportune to remind the Lebanese that secularism is a fundamental constitutional right.
Article 9 of the Lebanese Constitution lays down the principle of total freedom of conscience and personal belief. In Lebanon this constitutional principle is applied consistently in the legal and daily life and no one tries to impose his faith on others or to prevent others from practicing theirs.
Any Lebanese citizen can decide overnight to abandon his confession of origin and to adopt another confession. A few simple formalities are sufficient to ensure that, in law, administratively, politically and even in social life, this change of confession is effective and accepted.
On the other hand, the same right is denied to citizens wishing to abandon their confession of origin and to opt for secularism!
There is no difference between a Lebanese who decides to abandon his Maronite confession to become a Sunni, and who decides to abandon his confession to become secular, or even atheist if that is his personal belief . There is strictly no legal basis for prohibiting a citizen from opting for legal, administrative and political secularism if he so chooses.
But successive governments have always refused it, committing a serious abuse of rights by depriving the citizen of a fundamental constitutional right for the sole purpose of preserving a confessional system perpetuating the artificial division of the Lebanese people.
The legal construction of 1943 which delegates to the religious tribunals the competence of the right of personal status is in itself unconstitutional. It is in contradiction with the fundamental principle of the equality of citizens before the law, enshrined in Article 7 of the Constitution in that it makes them unequal before the law.
It is above all in contradiction with the fundamental principle of the sovereignty of the people according to which only laws democratically voted by the Lebanese Parliament are applicable to citizens. Religious rights are not rights voted by a democratic Parliament. No Lebanese parliament has passed legislation that systematically takes a 9-year-old child away from his mother and hands him over to his father in case of divorce or a discriminatory law between girls and boys! These laws have no democratic legitimacy and are therefore contrary to the principle of sovereignty of the people.
In fact, the Lebanese have accepted for 73 years to be applied by religious tribunals that do not report to anybody laws that have never been voted by a Lebanese Parliament!
Many Lebanese still want civil marriage and a civil right of civil status. 400,000 people took to the streets to claim this right. In a country where 120,000 Lebanese marriages have been celebrated in Cyprus, where Lebanese civil courts apply the Cypriot law of divorce more than Lebanese law, and where many Muslims change their faith or organize their assets abroad to compensate The consequences of a discriminatory inheritance right, the malaise is profound, societal and fundamental.
The constitutional and legal construction of Lebanon has been sadly wobbly since its creation in 1943, and it is this precise point that explains the Lebanese failure! The weakening of the Lebanese nation and political bodies by the confessional – yet artificial – division of the Lebanese people.
The problem is not to prohibit religious law, and any citizen who wishes to subject his marriage and his personal status to religious law retains full freedom under Article 9 of the Constitution. The problem is to impose a religious right on citizens who do not want it. It raises the crucial question of the primacy of constitutional law and the principle of the sovereignty of the people in relation to ancillary rights by nature, since they are not applicable to all citizens.
Contrary to a notion widespread in Lebanon and regularly maintained in political discourse, secularism is not the abandonment of its faith.
Secularism rests on three principles: freedom of conscience and freedom of worship, separation of public institutions and religious organizations, and equality of all before the law regardless of their religious beliefs. Secularism guarantees believers and non-believers alike the right to freedom of expression of their convictions. It guarantees the free exercise of worship and freedom of religion, but also freedom with regard to religion: no one can be constrained by the right to respect for dogmas or religious prescriptions.
It should therefore be the foundation of society in a multi-confessional country such as Lebanon, the foundation which applies to all citizens by default, except for those who opt for subjection to religious right by personal choice.
But in Lebanon, unfortunately, the opposite has been put in place, making the legal system incoherent and dividing the Lebanese with religion instead of uniting them in secularism.
The solution is simple: Give back to the Lebanese their constitutional right to choose secularism!
And this does not require any law.
Suffice for the President, the guarantor of the Constitution, to instruct the Government to enforce administrative secularism in practice and for the Minister of Justice to instruct magistrates and courts to apply the civil law of the Civil Status that has been in force since 1926.
And any electoral law advocating proportional rule on the basis of a unique constituency will only work if on the basis of secularism.