Chapter 3. Legal framework
A robust legal framework that guarantees rights regarding accessing information and civic space, and enables possibilities for participation and accountability, is a pre-condition for designing and implementing open government initiatives. These legal and regulatory prerequisites determine the rules, rights and obligations of all stakeholders involved and provides a common framework. Ideally it is elaborated through an inclusive process and is transparent, widely communicated and accessible. The OECD Recommendation on Open Government recommends “ensuring the existence and implementation of the necessary open government legal and regulatory framework, including through the provision of supporting documents such as guidelines and manuals, while establishing adequate oversight mechanisms to ensure compliance” (Provision 2).
Lebanon’s legal framework builds on its Constitution, which states that “Lebanon is a parliamentary democratic republic based on respect for public liberties, especially the freedom of opinion and belief, and respect for social justice and equality of rights and duties among all citizens without discrimination” (preamble). More specifically, Article 13 guarantees core civil liberties, such as the freedoms of expression, of press, of association and of assembly.
In recent years, the country has adopted several pieces of legislation to further define the legal framework that is relevant to open government. These include the Right of Access to Information Law (No. 28 dated 10 February 2017), the Illicit Enrichment Law (No. 154 dated 27 December 1999), the Whistleblower Protection Law (No. 83 of 10 October 2018), the Electronic Transactions and Personal Data Protection Law No. 81/2018, and Law No. 84/2018 on Strengthening Transparency in the Oil and Gas Sector. Most recently, Lebanon adopted Law No. 175/2020 on Fighting Corruption in the Public Sector and the National Anti-corruption Strategy 2020-2025, which paves the way for the future establishment of the National Anti-corruption Institution, as well as the Law on Asset and Interest Declaration and the Fight against Illicit Enrichment, which was adopted on 30 September 2020.
The adoption of the Right of Access to Information Law in 2017 following a long process, which started in 2004 and was spearheaded by a National Network for the Right of Access to Information, was an important milestone towards greater transparency and open government. Such laws are considered a key pillar of democratic governance and open government, and are common practice in OECD countries, with all but one having such a law. Access to information enables stakeholders to scrutinise government, hold it accountable and participate in policy-making processes in a more informed manner. Moreover, it can increase citizens’ trust in government and is a tool to prevent and fight corruption (OECD, 2019[6]). Accessing information mainly occurs through two means: the proactive disclosure and publication of information by public institutions, and the provision of information upon an access to information request. Lebanon’s law provides for both means of accessing information. Article 1 states that “every person, natural or legal” has the right to access information, while Article 7 details the documents that have to be published proactively, which include “decisions, instructions, circulars, and memoranda that include an interpretation of laws and regulations or that are of a regulatory nature” as well as “all transactions involving payment of more than LBP 5 000 000 [Lebanese pound] of public funds”. In addition, all public institutions are obliged to produce and publish an annual report about their activities. The Lebanese law enshrines further obligations on the administration, namely explaining non-regulatory administrative decisions (Article 11) and publishing the rationale behind laws. The law allows for the use and reuse of the information, except for commercial purposes. It covers a wide range of public institutions, thereby creating a solid basis for accessing information. At the same time it includes exceptions without putting them under a “harm” or “public interest” test, as is common practice in OECD countries. Implementation practice and the current draft implementation decree should ensure that these exceptions do not hinder effective access to information.
While the Right of Access to Information law could be further aligned with international standards, the implementation of the current law is the most important step to further a transparency culture in Lebanon and enhance the implementation of open government principles. Recent studies from civil society organisations show that despite the access to implementation law having been in place for over two years, more effort is needed regarding implementation. A study conducted by the Gherbal Initiative in 2018 showed that only 26% of the institutions they made an access to information request to answered this request. The Gherbal Initiative then undertook another study in 2019 in which they requested the 2017 financial statements of 140 institutions, this also showed that the public administration is not yet fully complying with the law: 120 institutions received the request, of which 52 refused to provide the information, 29 gave incomplete answers, 6 said they do not have a budget and only 33 provided the full information (Gherbal Initiative, 2019[11]).
As a result, OECD supported OMSAR in developing a National Action Plan on the Implementation of the Right of Access to Information law and is currently supporting its implementation. The plan was elaborated by a Technical Access to Information Committee and was adopted by the Anti-corruption Ministerial Committee. It has benefitted from a wide range of consultations with civil society members, media, local government, public officials, parliamentarians, the justice sector and the private sector. The 10 implementation areas provide for a comprehensive approach to implementation of the law, could greatly advance transparency in Lebanon (see Box 3.1). OMSAR is currently elaborating key performance indicators to monitor implementation of the plan. These monitoring results should be made publicly available, while the involvement of various stakeholders in the monitoring process would also further strengthen the adoption of open government principles. Going forward, OMSAR is working to develop an access to information e-portal to assist obligated administrations in the proactive disclosure of information to the public.
In addition to these efforts, Expertise France is working with the Ministry of Environment to implement pilot projects on accessing information, according to the OECD survey. In September 2019, OMSAR, together with the OECD and UNDP, organised a workshop on the role of information officers in enforcing the Right of Access to Information law. Approximately 100 public officials attended the workshop, and the ministry is currently following up with government entities to check whether these public officials have been appointed as information officers in an effort to create a network of such officers.
OECD supported OMSAR in developing a National Action Plan on the Implementation of the Right of Access to Information law and is currently supporting its implementation.
A national stakeholder workshop was jointly organised with OMSAR and UNDP in June 2019 to discuss the draft national action plan. The workshop brought together representatives of the public administration, parliamentarians, civil society organisations, media and the private sector to consult on the draft national action plan and discuss its different activities. The plan will be adopted by the Ministerial Anti-corruption Committee.
Summary of the activities foreseen by the action plan:
1. Develop a comprehensive list of the obligated administrations by the ATI Law.
2. Appoint ATI officers (ATIO) within all obligated administrations.
7. Develop oversight mechanisms to ensure the compliance of the obligated administrations.
8. Implement mechanisms for receiving and handling complaints related to ATI implementation.
10. Develop open and effective filing and archiving systems.
As is the case in several OECD countries, the Right of Access to Information law foresees the establishment of a body to oversee the implementation of the law, provide education about the law, and receive and treat complaints regarding its implementation. In Lebanon, this body will be the National Anti-corruption Institution, which is expected to be an independent body that will ensure the adequate implementation of the law. Until this institution is formally established, complaints can only be addressed to the courts, namely the Council of State, which often involves long and costly procedures.
Lebanon has passed another law regarding accessing information in a specific sector: Law No. 84/2018 Strengthening Transparency in the Oil and Gas Sector.1 This law aims to combat corruption by establishing transparency mechanisms in the petroleum sector. Article 4 of the law calls for the proactive disclosure of information regarding all petroleum activities on a quarterly basis. Article 19 assigns the Anti-corruption Institution with the responsibility of ensuring the effective implementation of the law. According to this provision, the Institution has the duty to monitor the appropriateness, credibility and quality of information relevant to the petroleum industry. In addition, this article calls on the Institution to publish annual reports highlighting the significant difficulties witnessed by people in accessing information on the petroleum industry, which would be submitted to the Council of Ministers and Parliament.
Integrity is one of the key principles of open government, and therefore the adoption of a range of legislation in the field of anti-corruption and integrity is common practice to support an open government culture and a solid open government legal framework. Lebanon recently adopted Law No. 175/2020 on 8 May 2020 on “Fighting Corruption in the Public Sector and establishing the National Anti-corruption Institution” as well as the National Anti-Corruption Strategy 2020-2025 on 12 May 2020 that includes 34 outputs. As part of this strategy, the government seeks to pave the way for the future establishment and activation of the National Anti-Corruption Institution.
In addition to this landmark anti-corruption legislation, Lebanon has committed to make efforts in this field, and ratified the United Nations Convention against Corruption (UNCAC) on 22 April 2009. Likewise, the 2009 Illicit Enrichment Law specifies the categories of public officials that should disclose their assets when they take office (Article 2), identifies the parties entrusted with receiving financial declarations according to the rank of the public official, as disclosures are not made public in the country (Article 5), and outlines the procedures for prosecution in cases of illicit enrichment (Article 10). However, this law does not list illicit enrichment as a crime by itself. Accordingly, an updated Law on Asset and Interest Declaration and the Fight against Illicit Enrichment was adopted on 30 September 2020, which further specifics the scope and obligations related to asset disclosures of public officials.
In addition to these laws and in line with UNCAC, Lebanon passed a law to protect whistleblowers (Law No. 83 of 2018 on protecting whistleblowers) as well as a number of additional laws, directives and decisions that support the anti-corruption legal framework. These include, among others: the Law on Lifting bank secrecy; Law No. 44 of 24/11/2015 on Fighting Money Laundering and Terrorist Financing; Law of Appointments of First and Second-category Positions; Law No. 42 of 24/11/2015 on the Declaration on Transfer of Funds Across Borders; Ombudsman Law No. 664 of 4/2/2005; Law No. 25 of 27/10/ 2016 on Exchange of Tax Information; Law No. 48 of 9/7/2017 on Public Private Partnership; and Penal code No. 340 of 1/3/1943 and its amendments. Finally, a code of ethics for public procurement officials provides some integrity principles to be respected. Wide dissemination of the code would further enshrine the respect of these principles within the public administration.
In line with Provision 9 of the OECD Recommendation, digital government tools provide opportunities to source ideas and co-create solutions. To enable digital tools to play this role, the appropriate legislative frameworks are needed. The Electronic Transactions and Personal Data Protection Law No. 81/2018 presents a first step in this direction as it sets the foundation for e-services and e-engagement portals, and states that “information technology is at the service of the people” (Article 2). The Government of Lebanon should continue the efforts underway to keep its legal and regulatory frameworks updated in critical areas such as the digital rights of citizens and businesses. At the same time, enhancing the digital transformation of the public sector is not a static process, as the fast pace of digital technological development requires governments to be able to permanently adapt to new contexts, drivers and expectations from citizens and businesses. Lebanon should in this sense prioritise the development of an agile, collaborative and experimental culture across the administration that can go beyond legalistic approaches.
Circular No. 21/2012 of 25 August 2012 requires all public entities to publish draft legal texts on government websites and solicit consultation and feedback from stakeholders, including civil society. Public entities are required by this circular to assess the feedback received from consultations and integrate this feedback as necessary into updated versions of the legal texts. This includes draft laws, draft decrees, draft policies and sectoral strategies. The circular also specifies that public entities should publish draft legal texts for 15 days and immediately notify stakeholders (academia, civil society, media, etc.). This is a necessary prerequisite to presenting these texts to the Council of Ministers, and a civil servant should be appointed in each public entity to manage this process.
OECD countries are moving towards greater stakeholder engagement, and are at least developing guidelines to support public institutions in this process. The purpose of these guidelines is to create a common framework for public officials and stakeholders that defines common rules, rights and obligations. Examples include the United Kingdom’s guide “Ensuring Effective Stakeholder Engagement”, or the citizen participation charter developed by the municipality of Paris through a co-creation and inclusive process (see Box 3.2).
United Kingdom
“Ensuring Effective Stakeholder Engagement” is a guide to help run, manage and evaluate stakeholder campaigns developed by the Department for Business, Innovation and Skills of the United Kingdom. It includes the following sections:
Canada
The Government of Canada has rules of engagement for online engagement, which highlight how the government reacts to comments and interacts with citizens, when they should remove comments, and the terms of replying. In addition, public engagement principles highlight the principles that the government is committed to respect when engaging with citizens. These include: transparency, relevance, inclusiveness, accountability and adaptability.
City of Paris
The Paris Charter for Citizen Participation was adopted in 2017 following an inclusive development process. It is based on a previous charter that was improved to take into account the experiences of the first version. It includes the following sections:
Source: Department for Business, Innovation and Skills (n.d.[12]), Ensuring Effective Stakeholder Engagement, https://gcs.civilservice.gov.uk/publications/ensuring-effective-stakeholder-engagement/; Mairie de Paris (2017[13]), Paris Citizen Participation Charter, https://cdn.paris.fr/paris/2019/07/24/7e858177d8e8e9f59e6804e3b82994eb.pdf; Government of Canada (2020[14]), Rules of Engagement, https://open.canada.ca/en/rules-engagement; Government of Canada (n.d.[15]), Principles and Guidelines, https://open.canada.ca/en/content/principles-and-guidelines.
Lebanon has initiated some steps in this direction with its work on regulatory impact assessments (RIA) and a circular on consultation. In particular, OMSAR developed guidelines for conducting RIA, which include guidelines for engaging citizens in this process, in particular through consultation. The guidelines highlight the different steps to undertake, which include: planning early consultations, identification of stakeholders, and preparation of necessary documents and implementation of consultation methods specific to each stakeholder. The Economic and Social Council (ECOSOC), which works as an advisory body to the Council of Ministers, is expected to play an important role in the RIA process as it acts as a main platform for dialogue between public and private actors.
Some countries are going a step further and enshrining participatory rights in their legislative framework. Article 14 of Argentina’s Constitution, for example, recognises the “right to petition the authorities” (OECD, 2019[6]), while Tunisia’s Code for Local Authorities includes a whole chapter dedicated to open government and participatory democracy at the local level (OECD, 2019[16]). Building upon this work and best practices from OECD countries, Lebanon could consider elaborating guidelines on stakeholder participation beyond regulatory consultation, and could provide a common framework to all public officials and stakeholders interested in participating. The framework could be disseminated widely and be coupled with offline and online training courses, for example using OMSAR’s existing e-learning portal.
In order to promote stakeholder participation, the space in which these interactions take place and in which citizens participate and express themselves needs to be protected and promoted. Lebanon has a vibrant civil society with more than 8 000 organisations registered as of 2014, in addition to youth and sports clubs (Division for Sustainable Development Goals, 2018[17]). Civil society organisations (CSOs) have been very vocal and engaged in promoting policy reforms, as was visible during the “You Stink” Movement in 2015 in response to the garbage crisis. There are also well-established organisations in the field of public governance, such as the Lebanese Chapter of Transparency International. CSOs and citizens have the right to protest and assemble. However, while the Constitution guarantees freedom of association, and the 1909 Law on Associations is considered enabling, organisations still face some challenges, such as delays in receiving their documents for registration. A 2006 ministerial circular requires that a receipt must be given within 30 days; however, CSOs continue to face delays (ICNL, 2019[18]). Civicus judges Lebanon’s civic space as “obstructed”, which refers to it being “heavily contested by power holders, who impose a combination of legal and practical constraints on the full enjoyment of fundamental rights” (Civicus, 2019[19]). Similarly, V-Democracy Values give Lebanon 2.72/4 in the category CSO entry and exit, 2.6/4 in participatory environment, and 2.5/4 in CSO repression (V-Dem Institute, 2018[20]). Although Lebanon passes the OGP’s values-check, improvements in the civic space environment would encourage further dialogue between government and civil society and enhance effective stakeholder participation. The programme Afkar3 is relevant in this context. Financed by the European Union and managed by OMSAR, the programme aimed to further strengthen civil society in Lebanon. Afkar II had a budget of EUR 3 million and focused on rule of law and national dialogue. Civil society could apply to grants for projects in the main focus areas. According to public officials, Afkar III (EUR 10 million budget) included as outputs the establishment of a policy dialogue platform and detailed guidance, with several pilots already implemented.
Freedom of the press is equally guaranteed by the Constitution, and Lebanon has a diverse media sector, despite it being politicised (RSF, 2020[21]). However, the penal code and the audio-visual media law criminalise defamation against public officials, the president and the Lebanese flag, and have been used against journalists and activists (AbiYaghi, Yammine and Jagarnathsingh, 2019[22]).
Continue efforts underway to establish and update effective legal and regulatory frameworks for the digital transformation of the public sector. In doing so, provide support for an agile, collaborative and experimental culture across the administration that can go beyond legalistic approaches.
Building on previous experience, OMSAR could elaborate stakeholder engagement guidelines that provide step-by-step guidance and an overview of different engagement tools. In doing so, the government could disseminate these guidelines widely to the public administration and provide training courses on their application, for example, through the existing e-learning portal.
References
[13] AbiYaghi, M., L. Yammine and A. Jagarnathsingh (2019), “Civil Society in Lebanon: the Implementation Trap”, Civil Society Knowledge Centre, Vol. 1/1, https://doi.org/10.28943/cskc.002.70000.
[10] Civicus (2019), Lebanon: Live Rating, https://monitor.civicus.org/country/lebanon/ (accessed on 29 October 2019).
[3] Department for Business, Innovation and Skills (n.d.), Ensuring Effective Stakeholder Engagement, https://gcs.civilservice.gov.uk/publications/ensuring-effective-stakeholder-engagement/ (accessed on 29 October 2019).
[8] Division for Sustainable Development Goals (2018), Lebanon: Voluntary National Review on Sustainable Development Goals, United Nations, https://sustainabledevelopment.un.org/content/documents/19484Lebanon_VNR_2018.pdf (accessed on 29 October 2019).
[2] Gherbal Initiative (2019), Transparency in Lebanese Public Administrations, http://elgherbal.org/projects/view/en/8 (accessed on 29 October 2019).
[5] Government of Canada (2020), “Rules of Engagement” webpage, https://open.canada.ca/en/rules-engagement (accessed on 2 July 2020).
[6] Government of Canada (n.d.), Principles and Guidelines, https://open.canada.ca/en/content/principles-and-guidelines (accessed on 20 November 2019).
[9] ICNL (2019), Lebanon - Civic Freedom Monitor, http://www.icnl.org/research/monitor/lebanon.html (accessed on 29 October 2019).
[4] Mairie de Paris (2017), Paris Citizen Participation Charter, https://cdn.paris.fr/paris/2019/07/24/7e858177d8e8e9f59e6804e3b82994eb.pdf (accessed on 29 October 2019).
[1] OECD (2019), Open Government in Argentina, OECD Public Governance Reviews, OECD Publishing, Paris, https://dx.doi.org/10.1787/1988ccef-en.
[7] OECD (2019), Open Government in Tunisia: La Marsa, Sayada and Sfax, OECD Public Governance Reviews, OECD Publishing, Paris, https://dx.doi.org/10.1787/9789264310995-en.
[12] RSF (2020), “Liban” webpage, https://rsf.org/fr/liban (accessed on 2 July 2020).
[11] V-Dem Institute (2018), Varieties of Democracy, https://www.v-dem.net/en/analysis/MapGraph/ (accessed on 29 October 2019).