1. The Constitutional Foundations:
- The National Reconciliation Accord, better known as the “Taef” Agreement included a chapter related to administrative decentralization that was not formally incorporated in the text of the constitution. However, this Agreement was found by the Cour de Cassation (the Lebanese Supreme Court) as having constitutional value. It has in all instances a very strong political value.
- The Taef provisions for “broad administrative decentralization” provisions are not yet implemented.
- The Taef Agreement provided for the following:
1. The Lebanese state is a unitary and unified state with a strong central authority.
2. The authority of the Muhafez [i.e. heads of the Muhafazat] and the Kaimmakams [heads of the Kada’] shall be broadened, and all the branches of the government shall be represented in the administrative districts at the highest level possible in order to better serve the citizens and to better respond to their needs locally.
3. The administrative boundaries shall be reconsidered in order to ensure national integration while preserving coexistence and the unity of the land, people and institutions.
4. Broad administrative decentralization shall be adopted on the level of small administrative unit (the Quada’ and smaller) by electing a council for each Quada’ headed by the Quaemmakam to ensure local participation.
5. A unified and comprehensive development plan for the nation shall be adopted. The plan should lead to the development of the various Lebanese regions economically and socially. The resources of the municipalities, of the joint municipalities and of the federations of municipalities shall be enhanced through appropriate financial support.
- Broad deconcentration : problems with human and financial resources
- Redrawing of administrative boundaries and Broad decentralization and the fear from federalism and regionalism:
- Decentralization is currently limited to the current legal and administrative framework of municipalities and its federations.
- The municipality is a body of local government which performs within its territory, the competence that is provided by law. The municipality enjoys legal personality, administrative and financial independence in the context of the law.
- federations of municipalities (art 114 et seq.) are a coalition of a number of municipalities, which enjoys legal personality and financial independence; it performs its competence as provided by the municipality law.
2. The formation of municipalities and its governing bodies:
- Conditions of creation, merger and split:
- is the municipality a right for all?
- What size is right? Need for larger coalitions (municipal coalitions, federations of municipalities, regional councils)
- Is the municipal electoral system appropriate?:
- Of the municipal council (issues arising especially in large municipalities; the religious representation issue).
- Of the chairman and vice-chairman (indirect or direct election)
- Education of candidates (yes or no conditions of diplomas)
- Who elects: legal registration – unregistered residents
3. Scope of municipal competence and available resources:
- Wide scope of municipal competence (state the text)
- Limited or inappropriate financing:
- Revenues can be appropriate (art 83) but vary from municipality to another. The system does not allow for sufficient flexibility to adapt the tax rates to the size and the wealth of municipalities.
- Revenues are levied with some difficulty by the municipalities themselves
- Revenues (taxes and sur-taxes) levied by the state for and on behalf of the municipalities are deposited into a special fund for later distribution. The terms and conditions of such distributions are unclear and are therefore prone to abuses and discretion (art 88).
- (In)experience and (lack of) training of municipality boards members. The legal duty to train municipalities and to establish the “municipal mentor موجه البلدية” were not applied (art. 91, 92, 93 and 94). Effort for training (in legal, management and related financial matters) have been done by civil society organizations (e.g. the University of NY Albanay project, recently widely applied to municipalities by agreement with the Interior Ministry).
- (Under)staffing and training of municipalities: essential particularly given the wide management powers and responsibilities of the Chairman.
4. What Controls and how much is appropriate?
- In principle: municipalities are only subject to ex post facto control - municipal decisions are immediately executory, subject to simple notification within 8 days. Municipalities are not subject to hierarchical control and supervision (“tutelle”)
- As an exception to the above principle, ab-initio control is applicable in a limitatively enumerated list of decisions. In that sense, these decisions are executory only after they are approved at either one of the three levels of administrative organization: the Kaemmakam, Muhafez and Ministry depending on the “importance” of the decision or the amounts involved. The silence of the administrative authority is interpreted as an approval.
- The practice: negative effect of the discretionary control authority (rather than the “legal control”):
- Ab initio controls exist in quite numerous instances, many having far reaching effect on the municipality’s management (e.g. approval of budget).
- Control rights (non-approval of municipality decisions) are discretionary, often used abusively, or with no sufficient rationale, or no rationale at all, thus hindering any valid or effective – theoretical - judicial review
- Also, seldom would municipalities use their right to consider silence as an approval and would then fear clash with the controlling competent administration
- Of the municipal council on its chairman (negative impact of electoral system if all factions are not represented)
- Of the people through periodic elections. Lack of continuous controls, transparency and accountability.
- Municipality meetings are held behind closed doors (no popular attendance is allowed)
- There is no duty of an annual public reporting meeting. Information becomes necessary in medium or large size municipaltities.
- Few municipalities publish newsletters and there are few local (regional or municipal) periodicals in Lebanon
- The duty of the municipality’s chairman to publish annual reports is not abided by.
- Judicial and quasi-judicial control:
- Administrative courts: require decentralization
- Disciplinary Boards (art 103 et seq.)
- Financial controls:
- Financial comptroller
- Audit court
- Technical controls: e.g. urban planning