The Fate of The Indictment Under a Caretaker Government

13/01/2011 Lebanon entered a transitional stage Thursday, only a few hours after the collapse of PM Saad Hariri’s government, as President Michel Sleiman declared the government in caretaker capacity pending the formation of a new government. On Wednesday, 11 ministers resigned from Hariri’s government in protest at his refusal to convene the Cabinet to discuss the Special Tribunal for Lebanon especially after the Saudi- Syrian effort to defuse the STL crisis was presumed dead.

It is the first time in Lebanon’s history that a government is toppled by the resignation of more than a third of its members, but it’s not the first time a government continues functioning in a caretaker capacity. Only this time, there is a slight difference with the STL expected to issue an indictment regarding the 2005 assassination of former Prime Minister Martyr Rafiq Hariri, and no official authority to receive it. The indictment is expected to implicate Hezbollah in the murder; a move widely seen as politicized serving US and Israeli interests in Lebanon and the region.

CARETAKER GOVERNMENT HAS NO DIRECT MANDATE

According to former minister and lawyer Issam Naaman, the Lebanese Constitution states that there are only three cases in which the government is considered resigned: the resignation or death of the Prime Minister, the end of the parliamentary cycle (i.e. parliamentary elections), in addition to the resignation of more than one third of the government’s members.

Naaman told Al-Manar website that in any of these cases, the president should call for parliamentary consultations to appoint a new prime minister. He noted that pending the formation of the new government, the resigned one functions in caretaker capacity and therefore, its ministers are required to act in this capacity.

The former minister defined the principle of “caretaker government as a task to manage the simple, routine and daily operations which do not require endorsement or Cabinet approval. “However, the caretaker government does not have the mandate to take decisive decisions that usually require a Cabinet meeting,” he explained.

Asked whether there were exceptional cases in which the caretaker government could take decisive resolutions, Naaman said that only in urgent cases such as catastrophes, the concerned minister has the right to take specific measures such as spending money without credence.

Naaman, meanwhile, pointed out that there was no specific constitutional deadline for the formation of a new government following any government resignation. “Customs stipulate, however, that parliamentary consultations, appointment of a prime minister and the formation of a new government take place without delay,” he said. “Yet, there are some cases where the country is severely divided, that the process extends to a relatively unlimited time” he added.

GOVERNMENT COLLAPSED WITH RESIGNATION OF 11th MINISTER

For his part, veteran legal expert and former head of the State Consultative Council, Yusuf Saadallah Khoury said the government collapsed the moment the 11th minister tendered his resignation. According to the constitution, more than one third of the ministers should resign to topple the government. In this case of a 30-member Cabinet, 11 ministers were required to withdraw.

“The constitution stipulates that the president then calls for binding parliamentary consultations to appoint a new prime minister. After that, the president, alone, issues a decree mandating the appointed PM to form the new government, and when the government is formed, the president releases a second decree” for the government take the oath and start functioning officially.

Like Naaman, Khoury stressed the caretaker government doesn’t have the direct mandate or the moral authority to take crucial decisions. “In case it adopts any resolution with relation to fateful events, it would be in violation of the law and should be penalized,” he explained. “The government has resigned and therefore its task is limited to taking care of necessary operations and transactions,” he elaborated.

The former head of the State Consultative Council also stated that the constitution has not specified any time limit for the President to issue the decree calling for parliamentary consultations. “The President is not obligated by any time limit in this regard. He can take the political circumstances into consideration before releasing it,” he said, stressing at the same time that the parliamentary consultations to appoint a new Prime Minister are mandatory.

The Lebanese are already divided over the legal and structural aspects of the STL, which the opposition regards as another political tool in US and Israeli hands to target the country and the resistance, yet the resignation of the government raises question marks on the fate of the international tribunal and the indictment which, if issued now, will find no official authority to receive it.

“Following the government’s resignation, the expected indictment will have absolutely no impact on Lebanon at any level,” former minister Issam Naaman told Al-Manar website, adding that the tribunal officials are aware that the STL wouldn’t be able to execute its indictment, especially after the speeches of Hezbollah Secretary General Sayyed Hasan Nasrallah who called for boycotting the illegal and unconstitutional tribunal. He recalled that the national opposition has rejected the agreement of coordination with the STL, which was adopted by the unconstitutional government of Fouad Saniora January 23, 2007, in violation of the Constitution and all laws,” reminding that then President Emil Lahoud didn’t sign it and the parliament did not endorse it.
For his part, Khoury ruled out any possibility of forcing Lebanon into dealing with the tribunal, which is subject to the United Nations Security Council’s Chapter 7 of the UN Charter, which allows the UNSC to resort to military interference and imposing sanctions. “This is not applicable at all,” Khoury told Al-Manar. He explained that the United Nations is powerless in this regard, especially with a caretaker government, given that the Security Council has the power to militarily interfere only in exceptional cases such as war, which is not the case in Lebanon.

OPPOSITION WILL NOT RE-APPOINT HARIRI…

Naaman explained the circumstances that led to the Saudi-Syrian initiative before being obstructed by the United States. “The Saudi-Syrian initiative was built on three main pillars: suspending financial aid, withdrawing Lebanese judges and transferring the issue of the false witnesses to the Lebanese Judicial Council. The US administration has rejected the settlement and exerted pressure on former PM Saad Hariri and Riyadh to foil it.”

“That’s why the national opposition decided to put an end to the whole game and chose to consult with President Michel Sleiman and convince him to influence Hariri to call for an immediate Cabinet session. But Hariri didn’t turned down the opposition’s demand, leaving the opposition with no choice but resignation,” Naaman noted.

He expected that the formation of a new government would not take place very soon, adding that the opposition has basically decided not to re-appoint Saad Hariri as Prime Minister and seek other national figures suitable for the position of PM.

By its resignation from the government, the national opposition launched an era of democratic change; a sensitive transitional stage that will define the shape of the country for at least the 20 months left for the president’s tenure.

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