POLITICAL CONSENSUS KEY TO OVERCOMING LEGAL

C O N F I D E N T I A L SECTION 01 OF 03 BEIRUT 001917

SIPDIS

SIPDIS

NSC FOR ABRAMS/SINGH/YERGER

E.O. 12958: DECL: 12/03/2017
TAGS: PGOV PREL LE
SUBJECT: POLITICAL CONSENSUS KEY TO OVERCOMING LEGAL
OBSTACLES TO SLEIMAN PRESIDENCY


Classified By: A/DCM Raouf Youssef for reasons 1.4 (b) and (d).

SUMMARY
--------------


1. (SBU) With momentum for Lebanese Armed Forces (LAF)
Commander Michel Sleiman's presidential candidacy growing,
attention is focused on the procedures for amending the
constitution to allow a sitting high-level government
official to run. March 14 announced on December 2 that
Sleiman was its choice for a consensus candidate, and that it
planned to initiate the amendment process in parliament.
Both Michel Aoun's Free Patriotic Movement and Hizballah have
indicated they will support Sleiman's candidacy, although
their support is linked to Aoun's initiative to nominate a
non-March 14 prime minister and other conditions. Meanwhile,
Speaker (and Amal leader) Nabih Berri is studying the legal
mechanisms for an amendment, given that, without a president
for the first time since the 1989 Taif accord, Lebanon finds
itself in an unprecedented legal situation.


2. (SBU) March 14 legal advisors and at least one opposition
MP are confident that a legal mechanism for amending the
constitution in these extraordinary circumstances (a
laborious and complicated procedure even with a normally
functioning cabinet and parliament) will be found. The real
question is whether the opposition (and its Syrian and
Iranian backers) will use legal obstacles as road blocks to
Sleiman's candidacy in an effort to extract more concessions
on cabinet formation and program or even ultimately to block
it altogether. Sleiman's election is not in the bag yet,
and we foresee many twist and turns ahead as both sides use
the ambiguous legal context to further their own political
gains. End summary.

THE ISSUE
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3. (SBU) Article 49 of the constitution, which discusses
procedures for electing the president, states that it is not
possible "to elect judges, grade one civil servants, or their
equivalents in all public institutions to the Presidency
during their term of office or within two years following the
date of their resignation and their effective cessation of
service, or following retirement." As Commander of the
Lebanese Armed Forces (LAF),Michel Sleiman currently falls
under this prohibition; however, Article 49 already has been
amended three times: 1) in 1995, under Syrian pressure, to
extend the mandate of President Elias Hroui for three years;
2) in 1998, to allow then LAF Commander Emile Lahoud to be
elected president; and 3) in 2004, again under Syrian
pressure, to extend the mandate of President Elias Hroui for
three years. Articles 76 and 77 outline the two possible
procedures for the constitutional amendment that is necessary
to pave his way to Baabda Palace.

THE SIMPLE WAY:
CABINET INITIATES
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3. (SBU) Under Article 76 of the constitution, one option for
amendments starts with a proposal from the president. After
the midnight November 23 departure of President Lahoud, PM
Siniora's cabinet assumed presidential powers, in accordance
with Article 62 of the constitution. The Siniora cabinet,
acting in its presidential role, could propose an amendment
to the cabinet. Then, assuming its government role, the
Siniora cabinet would vote on the amendment, requiring
two-thirds approval. (Note: 16 out of 24 ministers must
vote in favor; six opposition ministers walked out of
parliament a year ago, leaving 17, leaving room for only one
vote against. End note.) The approved amendment would then
go to parliament, where a two-thirds majority is required for
it to pass.

THE LONGER PATH:
PARLIAMENT INITIATES
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4. (SBU) The second way to amend the constitution, under
Article 77, and the one chosen by March 14, is for at least
ten MPs (of a total of 128) to propose an amendment during an
ordinary legislative session. A two-thirds majority would
have to approve it before Speaker Berri can then submit it to
the cabinet. The cabinet then must also approve the draft
amendment by a two-thirds majority.

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5. (SBU) However, the cabinet can reject the draft amendment
and send it back to parliament. If parliament insists on
pursuing the amendment, it requires a three-fourths majority
of its members to approve it. If it achieves that, the
president of the republic must either comply with the
amendment and send back a draft law, or the cabinet will
dissolve parliament and hold new elections within three
months. In that case, the newly elected parliament may still
insist on the amendment, thus constraining the cabinet to
submit a draft law within four months.

ROAD BLOCK NUMBER ONE:
PARLIAMENT IS IN ELECTORAL,
NOT LEGISLATIVE, MODE
--------------


6. (SBU) According to Article 75 of the constitution,
parliament, having failed to elect a president by the
mandated midnight November 23 end of President Lahoud's term,
can only convene as an electoral body, not as a legislative
body. Since President Lahoud's departure, Parliament Speaker
Berri cannot, some might argue, convene parliament to amend
the constitution.


7. (C) Aoun bloc MP Ghassan Moukheiber, a prominent lawyer,
however, disagrees, saying parliament can pass legislation
during this period. He believes parliament is considered an
electoral college only when it convenes to elect a new
president; since it has not yet done so, it can amend the
constitution. Berri himself thus far has not raised
parliament's electoral duties as an obstacle to amending the
constitution.

ROAD BLOCK NUMBER TWO:
"ILLEGITIMATE "SINIORA GOVERNMENT
--------------


8. (SBU) The opposition refuses to recognize the legitimacy
of the Siniora government since the November 11, 2006 walkout
of six opposition ministers, including all five Shia
ministers, deprived it of its confessional balance. By
allowing the cabinet to play its role in the amendment
process, the opposition would be implicitly recognizing its
legitimacy, and, by extension, the legitimacy of all
government decrees issued over the passed year (including one
calling for the establishment of the Special Tribunal).


9. (SBU) March 14 has opted for initiating the amendment in
parliament to avoid further criticism that the "illegitimate"
Siniora government is undertaking political actions that it
has no right to do. However, cabinet still must play a role
in the process. By beginning in parliament, however, March
14 hopes to make it more difficult for Speaker Berri to
challenge the process.

LEGAL OPINIONS VARY,
BUT ALL AGREE: KEY
IS POLITICAL CONSENSUS
--------------


10. (C) MP Bahije Tabbarah, a prominent jurist close to the
Hariri family, told Polstaff on November 28 that the key
issue is whether the opposition would recognize the cabinet
as legitimate and constitutional. Tabbareh added that
parliament, now entrusted with electing a new president,
could justify the amendment, provided all agree that the only
candidate is Michel Sleiman. If there is consensus over
Sleiman, this issue become irrelevant and the process could
go smoothly.


11. (C) March 14 MP's Boutros Harb and Ammar Houri believe
that amending the constitution is not the problem; parliament
and the cabinet could find the raison d'etat to do so. The
important question is whether there is national consensus on
Sleiman, and what position the opposition will take. Houri
added that the majority's acceptance of Sleiman is based on
fear of prolonging the political vacuum and looming security
destabilization.


12. (C) According to Berri advisor Ali Hamdan, once there is
political consensus on Sleiman's candidacy, the resigned Shia
ministers would return to the cabinet, restoring its
legitimacy and allowing it to propose a constitutional
amendment according to the procedures described in paragraph

3. However, HAMDAN also suggested that the fully restored

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cabinet would need to review all past government decrees, a
process he estimated would take "no more than an hour."


13. (C) Speaker Berri announced on November 29 to Arab
nationalist al-Safir that he would support Sleiman, on
condition that the majority and opposition agree on him. He
is calling on March 14 to "reach an understanding" with Aoun
to pave the way. Aoun, meanwhile, is conditioning his
support on acceptance of his recent initiative, i.e., that
the PM is not a member of March 14, that his 2006 MOU with
Hizballah remains the basis for discussions, etc. etc.
Hizballah, for the time being, is still hiding behind Aoun.
In other words, while the opposition claims to support
Sleiman's candidacy (no one here would be foolish enough to
risk angering the army by outright rejecting it),it will
seek as many concessions as it can on other, arguable more
critical issues, such as cabinet formation and program,
before giving the green light to legal procedures.

COMMENT
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14. (C) The battered Lebanese constitution is, as recent
history has shown, extremely prone to manipulation in the
interest of political imperatives. Ultimately, if the
opposition agrees to Sleiman's presidency (and that remains a
big "if," contingent upon what other political concessions
they can extract in the process),legal issues will not be an
obstacle.







FELTMAN