CONTROL MECHANISMS WITHIN THE EXECUTIVE BRANCH
The system of public service control and accountability in Lebanon evolved in a gradual and pragmatic way over a long period of time -1926 to 1965- during which it underwent a number of changes and refinements in the light of previous lessons, experiences, and the expanding role and functions of the public administration. This system, which is to a great extent, patterned after French continental procedures and practices, relies on an elaborate and diversified network of financial and legal checks which aim at ensuring the legality of executive actions and their strict adherence to existing laws and regulations.
At present, the main instruments of compliance accountability in Lebanon are the Ministry of Finance, the Court of Accounts the Civil Service Council, Central Inspection, and the General Disciplinary Council, all of which are located within the executive branch of government. In addition to these central control agencies, a recently empowered and strengthened parliament is just beginning to assert its oversight role over the public service, adding a new and potentially important dimension to existing control mechanisms.
The main purpose of this chapter is to examine the various instruments of compliance accountability in Lebanon, to identify their main problems and shortcomings, and whenever possible, to suggest ways and means for their improvement.
It must be pointed out that in the cases of the more recent control agencies, which were established in the late fifties or sixties, it will be very difficult to evaluate their impact and achievements in a reliable and accurate way because of the relatively short period of their active life between the time of their establishment and the start of the civil war which lasted from 1975 until 1990.
MINISTRY OF FINANCE
The Ministry of Finance is one of the seven original ministries which were established following the adoption of the 1926 Constitution with the beginning of the French Mandate in Lebanon. Although the Ministry has undergone a variety of changes since then, its main role and functions have remained essentially the same since independence in 1943.
There is no doubt that the Ministry of Finance is one of the most important ministries in Lebanon in view of its key role in collecting revenues to finance public needs as well as its central role in the preparation of the budget and the monitoring of all public expenditures. All decrees by the Council of Ministers that involve financial obligations have to be countersigned by the Minister of Finance in addition to the signature of the President and the Prime Minister. As such, the Ministry of Finance, despite its status as one of the line agencies of the executive branch, constitutes an important staff and management tool for the Prime Minister in directing, coordinating, and checking the operations of all other government ministries and agencies. This is why the Ministry of Finance is one of the most coveted portfolios and is usually the subject of intense competition among different political groups in the process of forming a cabinet.
Since the sixties a number of Prime Ministers have insisted on assuming this portfolio which they consider as an indispensable tool for helping them to exercise the leadership role expected of them throughout the executive branch. This practice, however, has not taken final hold because during the Taif meetings in September 1989, it was informally agreed that this portfolio should be reserved for a member of the Shia' religious community in order to ensure greater participation in executive decisions for this sect, which is probably the largest in Lebanon today. Actually, since the end of the civil war in 1989, a Shiite has occupied the position of Minister of Finance in three successive cabinets. In the fourth cabinet, which was formed in October 1992, the Prime Minister insisted on assuming this position himself although he later entrusted this responsibility to a Sunni Minister of State.
Role and Functions
The present functions and organizational structure of the Ministry of Finance, as well as those of other ministries, were defined as part of the general reform movement undertaken by President Fuad Chehab during 1958-59 and have continued until today with slight amendments.
The main role of the Ministry as defined in decree no. 2868 is to "manage and keep public funds and to be responsible for the budget, treasury, customs, real estate and cadastral affairs and national lottery, as well as any other matters that might be entrusted to it by existing laws and regulations". At present, the Ministry of Finance is organized into five main units whose heads report directly to the Minister:
The Ministry of Finance is clearly the most important tool of financial control in the public service. Its responsibility in this respect is not limited to ensuring compliance of all government expenditures with budget requirements, but it also includes ensuring the compliance of such expenditures with all existing laws and regulations from an administrative and legal point of view.
The control role of the Ministry is exercised during the budget implementation phase through an intricate network of ex-ante checks, which are intended to prevent illegal expenditures before they actually occur. The jurisdiction of the Ministry in this respect extends to all government ministries and agencies whose budget allocations are included in the general budget of the State but does not include autonomous agencies and municipalities. It is worthy of note that the total budget allocations of autonomous agencies are quite large in comparison to the general budget of the State, and the functions performed by some of them are more important than those performed by some of the regular ministries.
The process of financial control by the Ministry can be divided into four basic and sequential steps, each intended for a different purpose:
Request for Authorization of Expenditures
The first and most important step in the process of financial control is the request for authorization of expenditures which is submitted by any government ministry or agency that wants to undertake certain actions that involve a commitment to spend some funds that have already been appropriated in the budget. Examples of such actions are: the appointment of a new employee, the purchase of equipment or the paving of a road, which are all considered normal and routine activities of any government.
According to Lebanese financial laws and practices, which are fashioned after those of France, budget allocations do not constitute in themselves an automatic authorization to public agencies to spend these funds. Before doing so, these agencies have to go through a variety of ex-ante checks and audits to ensure the compliance of their actions with existing laws and regulations as well as the availability of needed funds.
According to the Public Accounting Law in Lebanon, the Minister is the person authorized to submit a request for Authorization of Expenditures. In certain cases senior officials in the Ministry can submit such requests if they involve limited amounts of money. All requests for authorization of expenditures are subject to exante scrutiny and approval by the responsible accountant within each ministry, by the Ministry of Finance, and, in most instances, by the Court of Accounts. The role of the Court of Accounts in financial control will be discussed later in this chapter. The responsibility of the internal accountant within each ministry is to check and verify two main things: the compliance of the proposed expenditure with existing laws and regulations, and the availability of budgetary allocations.
Once this step has been completed, the request is submitted to a Controller of Expenditures, who is an official of the Ministry of Finance assigned to one or more ministries for the purpose of checking and approving all such requests. Until 1962 such requests had been centralized in the Ministry of Finance. But since then, this operation has been decentralized by the assignment of a special Controller of Expenditures to each ministry or in certain instances, a group of ministries. The responsibility of the Controller of Expenditures is to check the availability of authorized funds, the compliance of the request with existing laws and regulations, and the accuracy of cost estimates.
The first and most important stage in the process of financial control ends with the approval of the Controller of Expenditures. Without such approval, no expenditure request can be executed. In case of differences between an individual ministry and the Ministry of Finance, the matter is referred to the Council of Ministers for final settlement.
Liquidation of Expenditures
The second step in the process of financial control takes place after the financial obligation has been actually incurred in accordance with the terms of authorization for expenditure by the Ministry of Finance. If the request for the authorization of expenditure includes, as an example, the appointment of a new employee, the purchase of new equipment or the pavement of a road, the liquidation of expenditures is intended to check whether such actions actually took place and to determine the exact amount of money which the government owes as a result of such actions.
The liquidation of expenditures does not involve the Ministry of Finance and is performed by a special accountant within each ministry or agency. Payment Order
The third step in the process of financial control is the issuing of a payment order for collection by the debtor concerned. In accordance with the existing Public Accounting Law the issuing of payment orders throughout the executive branch is the responsibility of the Head of Expenditures Service in the Ministry of Finance or a grade three employee within the service who has been officially delegated such an authority. Although the law permits the Head of Expenditures Service to delegate this authority to one of his employees who can represent him in other ministries and issue payment orders on their premises, this provision in the law has never been implemented. The centralization of this financial check in the Ministry of Finance is unusual, even in some European countries whose financial control systems are quite similar to those of Lebanon.
The issuing of payment orders is another important step in the financial control process which is to a great extent repetitive of the first step described above since it involves still another check on die legality of financial transactions and the availability of needed funds.
Payment of Expenses
The fourth and final step in the process of financial control is the payment of funds, which actually includes two operations, the approval of the payment order by the central accountant of the Ministry of Finance, who is the head of the Treasury Service, and the actual disbursement of funds by one of the cashiers of this service. In certain instances the head of the Treasury Service can, with the approval of the Director General, delegate the authority to approve the payment order to a lower level employee in his service. Evaluation
A review of Lebanon's complex and lengthy procedure of financial control which is applied by the Ministry of Finance, and which is duplicated to a great extent by the pre-auditing functions of the Court of Accounts, raises a number of questions that deserve serious consideration.
The Lebanese system of a central pre-audit exercised by the Ministry of Finance over all budget expenditures is in sharp contrast to practices in some other countries, influenced by Anglo-Saxon practices, where the pre-audit on expenditures is exercised by the ministries or agencies concerned. The United States is a good example of the latter system. There is no compelling evidence that the former system is more effective in guarding against financial abuses, while there is strong evidence that the latter system helps in reducing bureaucratic delays and expediting government work. Many scholars and experts argue that the benefits to the public of reduced routine and red-tape far exceed the costs of tighter financial controls.
In Lebanon the government follows a policy of financial control in autonomous agencies, which is in clear contradiction with the policy applied in regular ministries. At present only three out of the 62 existing autonomous agencies are subject to the pre- audit of the Ministry of Finance. As an example, the Council for Development and Reconstruction, which is responsible for the execution of most of the important capital projects in Lebanon, is exempt from such a central pre-audit and conducts its internal financial pre-audit. This is true of other autonomous agencies which among themselves are in charge of the execution of the vast majority of capital and development projects of the government.
The question that arises is: why should not regular government ministries be freed from the cumbersome burden of a central pre-audit like the autonomous agencies? If such financial flexibility is necessary for expediting public works and services, it should be extended to all public agencies and departments.
Although it is very difficult to prove this point, there are many in Lebanon who argue that financial abuses in autonomous agencies, that are not subject to a central pre- audit, are not worse than in the ministries which are subject to such an audit. But this is certainly a subject that deserves further study and investigation.
Even if it is deemed essential and useful, the pre-audit of the Ministry of Finance is a cumbersome and complex operation and should be simplified to minimize unneccessary delays and frustration in government work.
It is quite clear that the process of financial pre-auditing includes a number of stages involving checks by different authorities which are highly repetitive and of marginal value. The requests for authorization of expenditures are checked by the accountant within each ministry, by the controller of expenditures of the Ministry of Finance and by the Court of Accounts. The liquidator of expenditures within each ministry in turn checks the approved authorization of expenditures which in turn is checked by an official of the Ministry of Finance who issues the payment order. The final stage of authorizing and disbursing the funds involves a limited material check which does not duplicate, to any significant extent, the checks conducted in previous stages.
In addition to the duplicate and repetitive checks described above, the preauditing process is highly centralized. Requests of authorization of expenditures are the responsibility of the Minister concerned or, in certain limited cases, the Director General. Regional offices of the ministry concerned have very limited powers in this respect which involve very small amounts of money. Although controllers of expenditures of the Ministry of Finance have been assigned to conduct their checks of expenditure requests in individual ministries, there are no such controllers assigned to the regional offices of these ministries. As a result, all requests for authorization of expenditures by regional offices have to be conducted in the central headquarters of each ministry. In addition, the requests for authorization of expenditures have to be approved by the Court of Accounts on its own premises since the Court does not have any representatives in the various ministries. The next step, which involves the liquidation of expenditures, is also conducted by the ministry's accountant in its central headquarters. These accountants do not have representatives in the regional offices to perform this task.
The issuing of payment orders, which is the next operation in the pre-auditing process, is also the responsibility of a central department, the Service of Expenditures in the Ministry of Finance. Despite the fact that the law allows this department to assign some of its employees to perform this task in individual ministries and their regional offices, it has chosen not to do so. Finally, the actual disbursement of funds cannot be effected without the approval of the central accountant within the Ministry of Finance.
In light of the above it is evident that the pre-auditing process in Lebanon is a slow and complex one involving repetitive and duplicate checks by different agencies as well as a high degree centralization in individual ministries as well as in the Ministry of Finance and the Court of Accounts. The simplification of this process through the elimination of some unneccessary checks and the decentralization of others could significantly contribute to debureaucratizing government work and reducing unjustified and frustrating delays.
It is interesting to note that the tight and rigid system of financial control in Lebanon has not been of much help in dealing with the problem of abuses in the public service. The problem of flagrant and widespread corruption is probably the single most important problem that the Lebanese Government faces today. This is an issue on which there is substantial agreement among all groups, including the government. Many Lebanese today believe that the relaxation of control mechanisms within the public service, financial and otherwise, could hardly result in a worse situation than the one we are presently facing.
COURT OF ACCOUNTS
Article 87 of the 1926 Lebanese Constitution at the beginning of the French mandate stipulated that "the final accounts of the government for each financial year must be submitted to Parliament and approved before issuing the budget of the following financial year. A special law shall be issued for the establishment of a Court of Accounts. " Since this constitutional provision links the establishment of the Court of Accounts to the preparation of the final accounts of the Government, it was generally assumed at the time that the Court was primarily intended as a post-auditing agency, which did not later prove to be the case. Despite this provision in the constitution, the Court was not established until January 16, 1951, when the Public Accounting Law was enacted by Parliament. This law, with its amendments of 1959, 1983, 1985, and 1992 defines the present role and functions of the Court of Accounts1.
Role and Functions
The Court of Accounts which was essentially patterned after the "French Cour des Comptes", was intended as an important watchdog of the financial operations of the Government. According to Article I of Decree Law no. 132, dated April 14, 1992, the Court of Accounts is an administrative court, with financial and judicial functions, responsible for watching over public funds and those deposited in the treasury. More specifically, the Court is responsible for checking the use of public funds and its compliance with existing laws and regulations and for prosecuting all government employees accused of violating laws and regulations governing the administration of public funds. The Court discharges its functions through three main activities: a pre- audit of government expenditures, a post-audit of government accounts, and the judicial prosecution of offending employees.
The pre-audit jurisdiction of the Court includes the regular civil service, the army and public and internal security forces, the larger municipalities, and three autonomous agencies2. The remaining autonomous agencies which include some of the more important ones and which administer substantial amounts of money are exempted from the pre-audit of the Court but not its post-audit. As an example, these include the Bank of Lebanon, the Council for Development and Reconstruction, the Council of the South, and the Fund for Displaced Persons. Because of repeated accusations of widespread waste and corruption in the latter three agencies, there has been a growing demand for subjecting them to the Court's pre-audit. Unfortunately, Parliament has not yet taken any action in this direction.
The subjection of autonomous agencies to the post-audit of the Court is almost meaningless since the Court has not been performing such an audit. This actually means that the vast majority of autonomous agencies, which are not subject to the preaudit of the Ministry of Finance or the Court of Accounts, are free from any outside financial checks and controls.
When the Court was originally established, it was attached to the Ministry of Finance. But in 1959, and in an attempt to ensure greater independence and protection for the Court, it was transferred to the Office of the Prime Minister.
The Personnel of the Court are divided into three main categories: a) The judicial cadre, which includes the President of the Court, the Attorney General of the Court, and a number of judges distributed among six chambers who are responsible for the pre- audit control, and the prosecution of offending employees. All members of the judicial cadre are members of the judiciary and subject to laws governing judges in the regular courts of law. b) The professional cadre includes auditors and controllers who are responsible for conducting financial and legal checks and audits. c) The third includes administrative, clerical, and custodial employees.
According to existing laws and regulations the Court of Accounts enjoys a large degree of independence and immunity which, in theory, insulates it form political pressures. The President of the Court, the Attorney General and all judges are appointed by a decision of the Council of Ministers. After their appointment, however, it becomes extremely difficult to transfer or dismiss them. Transfer to another job is not possible without the approval of the Council of the Court which is composed of the President, the Prosecutor General and the three highest ranking judges. Dismissal is subject to trial and conviction by a special disciplinary council composed of some of the top judges. Since the establishment of the Court, this procedure has never been invoked.
The legal and financial pre-audit performed by the Court is undoubtedly its most important function and includes the following transactions:
The purpose of the pre-audit is to check the validity of these transactions and their compliance with budget allocations and existing laws and regulations. This check is quite similar to the one conducted by the Controllers of Expenditures of the Ministry of Finance described earlier and takes place after their approval of the Request for Authorization of Expenditures submitted by the various ministries. The decisions of the Court in this respect are final unless the Minister of Finance or the minister concerned decides to refer the matter to the Council of Ministers, which can either endorse or overrule the decision of the Court. The Court may incorporate such incidents in its annual or special reports which are submitted to Parliament.
The post-audit responsibility of the Court of Accounts includes essentially three basic tasks:
It must be pointed out that the Court, on the whole, has not attached a high priority to its post-auditing function. Between 1976 and 1992 the Court did not conduct any post-audits, presumably because of the lack of auditors and the chaotic situation during the civil war years. During 1992, the Court conducted a post-audit of the accounts of six public agencies only.
The role of the Court of Accounts as a financial pre-audit agency has been the subject of a serious controversy over the years. Many believe that the intention of the French Mandate, as expressed in article 87 of the 1926 Constitution, was the creation of a post-auditing agency which would be in charge of preparing and checking the yearly financial accounts of the government. Instead, the Court has become essentially a pre- auditing agency whose work duplicates, to a great extent, the work of the Ministry of Finance, and results in unnecessary delays in the transaction of official business. The benefit derived from the additional pre-audit conducted by the Court, and which resembles to a great extent the one performed by the Ministry of Finance, is marginal at best and does not in any way justify the additional costs and delays in government work. Actually, there are few examples in the world of central auditing agencies which engage in pre-auditing work.
Since the start of the civil war in 1976 the Court of Accounts has not been able to devote much time to its post-auditing function, presumably because of the lack of personnel. But the shortage of personnel, which was true of all government agencies during the war, did not prevent the Court from discharging its pre-auditing responsibilities. The truth of the matter is that over the years, the Court has been deliberately giving priority attention to pre-auditing work which ensures for it a more prestigious and influential role throughout the executive branch.
It is generally acknowledged that an effective system of financial control should rely on a preventive pre-audit that can preempt violations before they occur, as well as on a post-audit that can identify offending civil servants and ensure their prosecution. But in Lebanon the proper balance between pre- and post-audits is definitely tilted in favor of the former and should be corrected by entrusting the Court of Accounts with only post-auditing responsibilities while maintaining the role of the Ministry of Finance as the main pre-auditing agency. One oft he main maxims of a financial control system is that the post-audit check should be conducted by an agency different from the one that conducts pre-auditing checks. In Lebanon, the Court of Accounts is responsible for post-auditing financial transactions, which it has already approved in its pre-audit.
Another important questions that should be posed in connection with the Court of Accounts is the degree of independence that it has enjoyed in the performance of its work. Despite the reasonably high degree of independence and immunity accorded to the Court, it has witnessed periods of ebbs and flows in its relationships with the political leadership. An examination of these relationships reveals that some cabinets have consistently respected the independence of the Court and refrained from exercising pressures on it, while other cabinets have shown a tendency to pressure the Court, and even bypass it on many occasions3. As an example, the first cabinet during the present regime of President Elias Hrawi invariably sided with the Court in practically all cases involving differences between it and the various ministries. In sharp contrast to this practice, the present cabinet which has been in office since November, 1992 has consistently overruled the Court in favor of individual ministries in cases involving such differences. In fact, the present cabinet, has on certain occasions, approved certain public works contracts without the approval of the Court. Following the 1992 annual report of the Court which highlighted the problem of waste in the public service, the President of the Court was requested to hold a press conference to deny such claims, which he actually did.
The history of the Court of Accounts clearly indicates that the independence of the Court does not depend only on legal provisions and the immunities which they provide, but rather on the willingness of the political leadership to recognize the importance and benefits of an independent financial control agency and provide it with the needed support. The relationship of the political leadership with the Court of Accounts, as well as with other central control agencies in Lebanon, provides a clear example of the limits and constraints to public service reform within the existing political context and realities.
Another question that should be addressed with regard to the Court is its role as a prosecution agency for offending civil servants. The role of the Court in this respect conflicts with and duplicates the work of the Central Inspection and the General Disciplinary Council. Central Inspection, which is the main investigative agency in the executive branch, has a special financial inspectorate which deals with all violations of a financial nature and imposes certain penalties of limited severity. More severe punishments are imposed by the General Disciplinary Council whose main responsibility is to try and punish offending government employees.
According to existing laws, the Court of Accounts can try and punish civil servants who commit violations of financial laws and regulations. As mentioned earlier, the penalties that it can impose are quite mild and are limited to a maximum of one year salary of the offending employee, which does not exceed an average of U.S. dollars 5,000. Such penalties do not constitute an effective deterrent to improper conduct. More importantly, there is no serious justification for the fragmentation of the disciplinary function in the civil service by scattering it among these three agencies, in addition to the milder penalties that can be imposed by supervisors within individual ministries.
In this connection it should be emphasized that the prosecutional powers of the Court do not extend to ministers who are sometimes the more serious offenders. As an example, the Court's report covering the year 1992 identifies 21 violations committed by ministers, including the illegal appointment of 472 employees in the Lebanese University made by the Minister of Education. It is unfortunate that Lebanon has not yet developed any mechanism for dealing with such offenses which are quite common.
Another problem that the Court faces is the serious personnel shortages both qualitative and quantitative. This is a common problem throughout the Lebanese administration where the number of vacancies is approximately 60% of existing positions. As of October 1994, the Court of Accounts had 118 vacancies out of a total of 189 positions4. The Court attributes its inability to exercise its post- audit function mainly to the lack of available personnel and the need to train existing ones. This situation is not expected to improve soon since existing government salaries, especially for professional personnel, are significantly lower than those of private sector employees. This has prompted the Court to request permission from the Council of Ministers to use private auditing firms to help it in its post-audit work. This permission, however, has not been so far granted.
A final point that should be stressed is the fact that the pre-audit control of the Court is exercised by judges who man the six chambers assisted by the controllers and auditors. This is an odd arrangement to say the least since by background and training, they are not the most suitable persons for such a job. There is probably no other country which entrusts such a financial responsibility to judges.
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The annual report of Central Inspection for the year 1993 clearly indicates that it has not yet recaptured its previous role as one of the leading control agencies in the public service. As an example, the report states that during 1993, only 6 punitive decisions were taken out of a total of 270 investigated cases. Equally startling is the fact that only 2 employees were referred to the General Disciplinary Council for further prosecution7. These figures are in sharp contrast to the figures of 1974, when 118 cases were referred to the General Disciplinary Council8 (see Table II). In the light of the widespread complaints about the pervasive corruption which is highlighted as one of the more serious problems of the Lebanese public service in the annual report of Central Inspection for 1993 and the annual report of the Civil Service Council for 1994, and in the light of the high priority that the present cabinet has given to dealing with this problem, as evidenced in its attempt to purge about 500 civil servants in 1993, the accomplishments of Central Inspection in 1993 seem quite modest indeed. One can conclude by saying that, except for a short period during the sixties, Central Inspection has not been able to fulfil the expectations that accompanied its establishment in 1959 as one of the main pillars of the Chehabi reform movement.
The annual report of Central Inspection for 1993 emphasizes the following problems which have hindered its work: personnel shortages, lack of proper facilities and equipment, weakness of hierarchical controls, widespread irregularities and violations, political and security conditions, the large backlog of undecided cases over a long period of time, and the inadequate statutory provisions. The following part will discuss the more important of these and other problems.
In his annual report for 1993 The President of Central Inspection mentions security and political conditions as important causes for the limited number of sanctions imposed on offending employees9. It is becoming quite clear in Lebanon that the political factor is the single most important obstacle to the effective functioning of Central Inspection as well as other central control agencies. Even in cases where control agencies were guaranteed a high degree of immunity and independence to enable them to better resist political pressures, Lebanese politicians have managed in most instances to circumvent these guarantees and assert their dominant role in many areas of the civil service, which is still considered as an important source of support and power base for them.
Protecting civil servants from disciplinary action is an important aspect of the entrenched system of patron-client relationships in Lebanon. Politicians who depend on services and favors from civil servants that they can trade for votes cannot afford not to come to the rescue of their proteges when they need it. This explains to a great extent the relatively small number of mostly mild penalties imposed by various control and disciplinary agencies in Lebanon and the rare number of penalties involving senior civil servants. It is worthy of note that the recent purge undertaken by the government in 1993 and which included approximately 500 employees, was limited mostly to mid and lower level employees and did not include a single employee from the top grade of the civil service. The dismissal of these employees, however, was later overturned by a decision of the Council of State, the highest administrative court in the country.
A former Acting President of Central Inspection who also served as Director General of one of the important ministries states that the interferences and pressures that he encountered in Central Inspection exceeded by far those he experienced in the Ministry. In one case involving a middle level civil servant, he was approached by about 15 deputies who wanted to intercede on his behalf10. As mentioned later in this chapter a top civil servant reports that he was approached by 118 political figures with inquiries and requests for special services. There is not doubt that the lifting of the immunity enjoyed by senior officials of Central Inspection in 1976 has helped to weaken their ability to resist such pressures.
An interesting aspect of the problem of political influence in administrative matters is the fact that ministers can force any subordinate employee to implement their instructions even though they might be illegal or improper. Employees can protest and draw the attention of the minister in writing to the illegality or impropriety of their orders. However, if the minister insists on the execution of his instructions, the employee has no choice but to obey. In such cases employees will be absolved from any responsibility for violations, and the ministers are legally not subject to the jurisdiction of Central Inspection or other disciplinary agencies. In its latest report Central Inspection complains that many violations go unpunished because of this procedure. This practice could lead to significant abuses if ministers act in collusion with civil servants, which they actually do on many occasions.
It is rather ironical that control agencies such as the Civil Service Council and Central Inspection, which were originally established as part of a reform attempt to protect the civil service against undue political encroachments, have themselves become the victims of such encroachments.
According to the annual report of Central Inspection for 1993, the shortage of qualified personnel is considered as one of the main obstacles to its effective performance. In 1993, the percentage of vacancies in Central Inspection was almost 53 % 11. This situation is typical of practically all government agencies in Lebanon at present. Attempts for the recruitment of qualified personnel have met with little success, mainly as a result of low salaries and the negative image of the public service, especially after the civil war. There are many who assert that the government is not anxious to fill these vacancies because of the lack of financial resources.
According to the personnel law, supervisors within ministries and other government agencies are empowered to impose disciplinary penalties on their subordinates that include reprimands, salary deductions for a maximum period of 15 days and postponement of the salary step increase for a maximum period of six months, depending on the rank of the supervisor.
Although no accurate records of such penalties are available, there are many indications that they are extremely rare. Supervisors are reluctant, for a variety of reasons, to exercise this important control function and find it more convenient to refer such cases to Central Inspection. This practice is an outright example of passing the buck and naturally discourages Central Inspection from Liking the initiative in imposing disciplinary sanctions when the ministry concerned is not willing to do so.
One of the serious gaps in the inspection system in Lebanon is the lack of a clearly defined and effective system of follow-up on complaints from the public, although such complaints are permitted under the existing laws and regulations. Many citizens are not fully aware of this mechanism and how it actually works. Considering the existing conditions of the telephone system in Lebanon, it is extremely difficult for citizens to have easy telephone access to any government department. Central Inspection does not have a "hotline" as is the case, for example, in the U.S. General Accounting Office. But more importantly, even if it were possible to easily submit citizens' complaints to Central Inspection, the serious shortage of personnel precludes any serious follow-up. Priority in inspections and investigations is given to official requests within the public service.
An effective system of follow-up on public complaints could be extremely valuable in Lebanon in the long run since it will contribute to the weakening of the role of politicians as intermediaries between the citizen and the public service and ultimately reduce political interferences in the administrative matters. Lebanon should seriously consider limiting political interventions on behalf of constituents by channelling such interventions through Central Inspection. In the U.S. "Constituent complaints and inquiries in Congress are brought to the attention of oversight committees. Intervention of individual members of Congress in the affairs of administrative agencies (except for seeking information or making a routine inquiry) with a view to expediting or influencing agency decisions on behalf of constituents is considered improper"12.
If citizens are encouraged to submit their complaints directly to Central Inspection and if politicians are required to channel their interventions in the public service through Central Inspection, this could greatly relieve the administration from a heavy burden in addition to encouraging more proper conduct by civil servants in dealing with citizens' transactions.
The General Disciplinary Council is probably the most important tool for ensuring proper conduct by public officials through the prosecution and punishment of offending employees. Here again Lebanese laws and practices have been influenced by the French continental system which relies on compulsion and punishment to ensure adherence to statutory requirements of appropriate conduct. A tight and strict disciplinary system is especially important in countries like Lebanon where governments are liable for damages that might result from the acts of their employees.
The concept of disciplinary councils is essentially a French innovation based on the assumption that trial by an independent outside council composed of peers or fellow employees who have a good understanding of the workings of the public service provides an important guarantee of a fair and impartial trial to the accused employee. This is in contrast to Anglo-Saxon disciplinary practices which accord a greater role to supervisors within individual departments in imposing disciplinary sanctions.
The present disciplinary system in Lebanon, which was established in 1965, entrusts the responsibility of disciplining public officials to a central General Disciplinary Council. Prior to 1965 this responsibility was entrusted to three separate disciplinary councils with jurisdiction over three different categories of government employees. This arrangement proved to be seriously lacking, especially in terms of the requirements of uniformity and consistency. Since the disciplinary code in Lebanon does not clearly define the specific punishment that should be inflicted with each violation, and since disciplinary councils are not bound by precedent in prior cases, the decisions of these councils depend to a great extent on the individual discretion and judgement of their members. In actual practice, this means that on a number of occasions different councils may inflict different sanctions on employees who have committed similar violations. This represents a serious violation of the elementary principles of fairness and justice in disciplinary trials.
The personnel law in Lebanon does not include an elaborate and detailed code of proper conduct which clearly and specifically defines what constitutes improper or unethical conduct. The law, however, in the section dealing with the duties of civil servants provides broad guidelines about how public officials should conduct themselves in the performance of their official duties.
The general guidelines for proper employee conduct stipulate that civil servants must apply existing rules and regulations and must be guided by the public interest in the performance of their duties. Civil servants, each within the area of his competence, must complete the transactions of citizens quickly, accurately and faithfully. Each employee must bear the responsibility for orders and instructions given to his subordinates. A civil servant must submit to his immediate supervisor and implement his orders and instructions. If such orders and instructions are in clear violation of the laws, the civil servant should inform his immediate supervisor accordingly in writing. If the supervisor insists on his order in writing, the civil servant must comply.
The personnel law explicitly prohibits employees from doing the following:
The penalties that can be imposed on offending public officials are clearly spelled out in the personnel law of 1959. They are divided into two broad categories. The relatively mild penalties are included in category I and the more severe penalties, in category II. As was mentioned above, one of the important loopholes of this system is that it does not link specific penalties to specific violations committed by civil servants.
First category penalties:
Second category penalties:
The General Disciplinary Council is an independent semi-judicial body responsible for trying government employees accused of violating existing laws and regulations and imposing appropriate penalties on them. The Council cannot initiate trial proceedings on its own but can only consider cases referred to it by the appointing authority or by Central Inspection. The Council is empowered to impose any penalty it sees fit whether of the first or second degree mentioned above.
The jurisdiction of the Council extends to all employees in the public service, including autonomous agencies and municipalities. The judiciary, army, public and internal security forces, members of the Central Inspection Board, and Civil Service Council are not subject to its authority. A serious gap in the present law is that the large group of unclassified casual employees is also excluded from the jurisdiction of the Council. At present the number of such employees in the public service is approximately 10,000 and is actually larger than the number of regular civil servants.
The Council is composed of a president and two members who are appointed by the Council of Ministers. An inspector general form Central Inspection serves as the government prosecutor in the Council. Members of the Council enjoy security of tenure since they have no fixed term of office and can be removed only for causes by the Council of Ministers upon the recommendation of the heads of the Council of State, the Civil Service Council and Central Inspection, which is extremely unlikely to happen.
The proceedings of the Council are quite similar to those in a regular court of law. When an accused employee is referred to the Council, the government prosecutor studies the case, collects all the necessary evidence and submits the file to the Council. which can conduct further investigation through the use of special experts whenever necessary and additional testimony by civil servants or outsiders.
The accused employee has the right to read all the documents in his file and take copies of the ones he needs for his defense. He is also entitled to submit any evidence or documents which he deems necessary and to request the testimony of witnesses that he chooses. More importantly, he is allowed to seek the help of an outside lawyer or a fellow employee of the same rank to assist him in his defense.
The deliberations of the Council are confidential and its meetings are not legal unless attended by all the members, although the verdict can be reached by a majority vote. The decisions of the Council are final and cannot be appealed to any higher court or authority. It is interesting to note that even the President of the Republic, who is allowed by law to pardon a convicted criminal, is not allowed this prerogative in cases of employees sentenced by the Council. It should be added that an employee who is prosecuted by the Council can also be liable for prosecution by the regular criminal courts if the offense which he committed represents a violation of the penal code. An odd twist of the Lebanese law is that prosecution by the criminal courts requires the prior approval of the superior of the employee.
Since its establishment in 1965, the record of the General Disciplinary Council is not much different from the record of its predecessors in terms of the number and severity and penalties imposed or the rank of employees involved (see Tables III and IV). During the period 1962-1979 not a single employee of the first grade was punished and the percentage of employees in Grade 2 or 3 who were punished does not exceed 5 % 13.
The total number of 46 penalties imposed in 1993 is relatively small compared to previous years, but for the first time it includes seven senior civil servants from the highest three grades, three of whom were dismissed from the service 14 . The small number of inflicted punishments is offset by their severity and unusually large number of senior employees affected.
One of the disturbing facts in the 1993 report of the Council is that only 6 cases were referred to it by other departments, including only two by Central Inspection15. This is an amazingly low figure, especially in view of the mounting criticism of the widespread corruption, which by all accounts has reached alarming proportions during the civil war and its aftermath. As mentioned earlier, the Council cannot take the initiative in disciplining civil servants who have not bee referred to it by either the appointing authority or Central Inspection. This is clearly one of the main weaknesses of the disciplinary system in Lebanon because the available figures indicate that since 1962 the number of such referrals with the exception of few years has been limited (see Table III).
The discrepancy in the figures shown in Tables II and III between the number of yearly referrals to the Council and the number of inflicted punishments is the result of a serious problem that has plagued the Council since its establishment, namely the large backlog of cases that await consideration.
|Number of Punished Civil Servants||Year|
|Type of Punishment||Number of Employees|
|Dismissal (without pension or end of service benefits)||11||3|
|Discharge (with pension and end of service benefits)||21||5|
|Demotion of 1-4 steps within the grade||25||6|
|Delay of step increase for 30 months||2||8|
|Delay of step increase for 24 months||3||17|
|Delay of step increase for 12-18 months||4||1|
|Delay of step increase for 3-6 months||14||_|
|Suspension without pay for 6 months||_||2|
|Suspension without pay for 3 months||1||_|
|Deduction of salary for 15 days||_||3|
According to available records, there is no single year in which the Council was able to dispose of all the cases before it. As an example, by the end of 1992, the present Council had a backlog of cases involving 163 employees which, by the end of 1993, was reduced to 52. This situation is the result of the slow proceedings of the Council for which there is no easy solution. The establishment of additional councils, or chambers of the same council, could expedite the disciplinary process at the expense of uniformity and equality in dealing with different employees.
One of the main criticisms that have been repeatedly expressed about the present disciplinary system in Lebanon is the denial of the right of appeal to convicted employees. This is considered by many as a violation of a basic and sacred individual right, especially in a democratic system. If compared to regular courts of law - which allow at least one or two levels of appeal - such a practice is considered as discriminatory against a large group of citizens in matters which are of crucial importance to them. The right of appeal, however, will inevitably result in further delays in an already slow process and will certainly weaken the effectiveness of the whole disciplinary system.
The experience of Lebanon clearly indicates that its disciplinary system is tilted in favor of the protection of government employees and their security of tenure. Even the disciplinary attempts using special or extraordinary powers to purge presumably corrupt elements proved unsuccessful to a great extent. The tradition of security of tenure and permanence of government employment, which is often compared to a catholic marriage in Lebanon, is deeply rooted and has not been seriously questioned so far.
One of the most complex problems of government administration is how to achieve a proper balance between protecting the security of employees against actions by politicians and protecting the public interest by allowing the government greater freedom and flexibility in dealing with cases of improper conduct in the public service. The trend in some developed countries has recently been for less emphasis on the doctrine of the permanence of public service employment and more emphasis on the need for prompt and effective action in dealing with the problem of abuses and irregularities in the public administration.
In Lebanon, as well as other developing countries, the claim is made, often with good justification, that the prevailing traditional and underdeveloped political systems view the public administration as an instrument to promote their own selfish interests and actually exploit it in so many ways in furtherance of such interests. Allowing undue political interference in the public service is much more damaging to the public interest than ensuring greater protection for public officials, even at the risk of greater abuses by them.
It would be unfair to judge the success or failure of the General Disciplinary Council or other control agencies by the high incidence of abuse, irregularities and corruption in the Lebanese public service since this situation is the result of a variety of factors, notably the civil war as well as the lax control and disciplinary system. When the first Hariri cabinet assumed office in October 1992, it was forced, as a result of the intensity of public complaints and criticism, to give urgent priority to the issue of corruption in the public service. In its attempt to deal with this problem, the government decided to bypass the General Disciplinary Council, and create a special committee composed of the members of the Civil Service Council and the Central Inspection Board which was entrusted with the task of reviewing the cases of public employees referred to them by the Council of Ministers and recommending the dismissal of anyone of them without specifying the causes. But, despite this provision in the law creating this Special Committee, it was made abundantly clear in so many official statements that the main purpose of this whole operation was to "purge" corrupt employees as well as employees who were not attending to their duties. The result of this purge movement, as it has become known, was the dismissal of about 500 employees, the vast majority of whom were of mid and lower ranks of the public service. Here again there was no single grade one employee among the purged ones and only a very small number of grade two or three employees.
Following the purge, a large number of the dismissed employees appealed to the Council of State, the highest administrative court, which annulled decisions of the Council of Ministers on the grounds of insufficient evidence. This whole operation proved to be one of the major fiascos of this cabinet.
It is worthy of mention that a similar "purge" undertaken in 1965-66 and using essentially the same mechanism succeeded in purging about 250 employees, including some ambassadors, top civil servants and high ranking judges. The law authorizing this purge, however, denied the employees any appeal to a higher authority.
In the light of the above discussion of the control mechanisms within the executive branch in Lebanon, the following summary conclusions can be made:
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