On February 13, 2017, the State Shura Council (the first chamber) issued a final decision related to guaranteeing the right to work for people with disabilities in the private sector. The decision required the National Social Security Fund to ensure that employers in medium and large enterprises comply with the employment of persons with disabilities and not to issue clearances in case of violation. The Ministry of Labor is required to collect fines from large enterprises that violate the law.

This decision followed two lawsuits filed by the Lebanese LUPD as part of its strategic endeavor to activate the rights guaranteed by the Disability Rights Law No. 220/2000 through the judiciary. Article 74 of the law requires employers in the private sector with at least 30 employees to employ persons with disabilities according to certain percentages (one employee in establishments with 30 to 60 employees, and 3% of employees in establishments with more than 60 employees). The article also prohibits the National Social Security Fund from granting patents to violating establishments. While this legal approach was justified by the state’s desire to move the issue of disability from the logic of charity to the logic of right, and from the logic of isolating care to the logic of citizenship and inclusion, the executive authority and the National Social Security Fund are still dragging their feet in implementing these rights, under several pretexts, the most important of which is the absence of implementing decrees.

In the first review against the state (the Ministry of Labor), the Lebanese LUPD challenged its implicit rejection (two months of silence) of its request to compel employers who violate the obligation to hire disabled persons to pay fines. In the second review against the National Social Security Fund (NSSF), the LUPD challenged the NSSF’s implicit rejection of its request to reverse Memorandum No. 300, which authorized the issuance of clearances to offending employers. In both cases, the arguments of the challenged administrative authorities were devoid of merit, which is a further indication of the public administrations’ systematic violation of the principle of honorable discounting.

Departure From the “Fair Play” Principle: Festering the Wounds of a Marginalized and Disenfranchised Group

“Honest adversarialism” is a concept that refers to the obligation of different public sector administrations to adopt certain principles in defending their point of view. These principles include honesty in describing the facts related to the case against them and honesty in interpreting the general rules applicable to them. On the other hand, they must avoid any absurd, contradictory or contradictory argument based on erroneous facts or an interpretation of the law that does not stand up to serious debate. Any such approach constitutes a departure from the principle of public administration neutrality and a circumvention of the judiciary and citizens’ rights to litigation. In many cases, it also shows disdain and disregard for the rights of citizens and the principle of legality.

The violation of this principle becomes particularly reprehensible when it occurs in cases related to the rights of groups that suffer from chronic disdain and injustice and have resorted to the judiciary to seek redress. In such cases, any such attitude is tantamount to inflicting a wound.

Unfortunately, the defense of the public administrations in these two cases related to the right to work in the private sector for people with disabilities revealed many of these flimsy positions:

First, Social Security argued that Article 74 of the June 2000 law, which explicitly and unambiguously prohibits it from issuing clearance to violating employers, does not prevent it from doing so. Why? Because a law issued about 18 years before the 2000 law, Law 24/8219, enumerated the things that prevent it from issuing a clearance, and there was no mention of violating the requirement to employ the disabled. In order to give this prima facie flimsy argument some seriousness in the eyes of the average reader, the Fund’s defense had no trouble surrounding its arguments with legal principles that have nothing to do with the issue at hand. According to the Guarantee, there is no way to apply a general law (the Disability Rights Law) in the presence of a special law (the issue of organizing and issuing patents) even if the “general” law is special in nature because it relates to the rights of a specific group, is subsequent to the special law, and includes a clear and explicit clause prohibiting the Fund from doing a specific act. Of course, no further comment is needed here.

Second, the Social Security claimed that the lawsuit against it is without merit, since the challenged Memorandum No. 300, which authorized the granting of clearances to violating institutions, was for a temporary period (six months) and its expiration would lead to the reinstatement of a previous memorandum that declared compliance with the Disabled Persons’ Rights Law. The gravity of this position stems from two things: First, it contradicts his aforementioned argument that he is free from any restriction regarding the rights of the disabled. Second, and more importantly, it contradicts the reality of his actions, which is that he is granting clearances without any verification of compliance with the Disability Rights Law.

The Fallacy of Needing an Executive Decree

Since the promulgation of the Disability Rights Law, there has been an argument that many of the rights it recognizes require the government to issue a decree specifying the mechanism for implementing each of these rights.¹Nizar Saghieh and Ghida Franjieh, When the state suffers from chronic legal illness: The movement around Law 220/2000, from diagnosis to intensive care, published on the Legal Agenda website, 10/5/2013. This has led to the suspension of many of the rights guaranteed by this law and kept disabled people in an almost endless wait for this or that decree. It seemed to them as if the 2000 law that they cheered for was nothing more than a declaration of intentions. The state (the Ministry of Labor) reiterated this argument, arguing that “the law did not include any clarification on the qualifications required of the disabled person whom the employer is obliged to employ.”

According to the rule that “a new law and the provisions it contains are effective and directly applicable and thus binding on all bodies, entities and persons,” the Council completely refuted this argument, especially since the Council found, upon scrutinizing the case, that there was no reason to deviate from this rule. The provisions of Article 74 are “clear and explicit in specifying the obligations of private sector employers to allocate jobs for persons with disabilities, and the penalty imposed on them by the Ministry of Labor if they neglect this obligation”; moreover, there is no explicit reference to the suspension of the article’s effect on the issuance of executive texts. In support of its decision, the Council clarified that the determination of the qualifications of a disabled person is done in coordination between the national employment institution to which applications for employment of disabled persons are submitted and employers in light of the nature of the job in question, without any need for an executive decree. It should be noted that this position is in line with the position taken by the Legislative and Advisory Council in its 2005 Advisory Opinion. ²Consultation No. 774/2005 issued by the Legislation and Consultation Authority at the Ministry of Justice, dated 5/11/2005 (Basis No. 753/E/2005).

This decision goes in the same direction as the position taken by the Civil Service Council after long confusion regarding the right of the disabled to work in the public sector. For years, the Civil Service Council refrained from allocating jobs in the public sector to people with disabilities (a 3% quota) as required by law (Article 73), arguing that a decree should be issued specifying the jobs in which people with disabilities are allowed to participate according to the type of disability and the nature of each public job. However, years later, it became clear that this argument, which was portrayed as conclusive and led to the denial of rights to a large segment of the population for more than a decade, was hackneyed and untrue. The change in the Civil Service Council’s position as of 2010, when it confirmed that it would organize competitions that allow people with disabilities to participate, “provided that the disability does not prevent the candidate from competently and properly exercising the duties of the position to which he/she is applying.” The Civil Service Council, together with the Ministry of Social Affairs, announced that it would organize competitions that would allow people with disabilities to participate. The Council and the Ministry of Social Affairs also announced in 2011 a mechanism to apply the 3% quota in the public sector, as it is “the state sector and its responsibility, and the state has the upper hand in it, which must set an example for private institutions in applying the law,” by reserving percentages of jobs for people with disabilities who succeed in the exams without any hierarchy or succession.³On all these matters, see the report referred to in the previous footnote.

No Public Budget Since 2005, an Excuse That is Worse Than a Sin

This is where we reach the most egregious argument. The state argued that “implementing the provisions of Article 74 requires the inclusion of two items in the general budget: One related to fines collected and the other related to unemployment compensation, while it is currently impossible to include these two items because no general budget has been approved since 2005.” The gravity of this argument stems from the Ministry of Labor’s invocation of the constitutional violation committed by successive governments and the House of Representatives in not establishing public budgets since 2005 to avoid its responsibilities to ensure the right to work for the disabled. The State Shura Council’s response was decisive in this regard, stating that “the reason given cannot constitute a justification for the Ministry of Labor to fail to perform its duties and to collect the legally noted fines from the offending employer … through collection orders issued for this purpose, so that it is up to the Ministry to regulate this matter algorithmically and administratively as it does for all other fines, fees and amounts it collects throughout the years during which no budget was approved.”

Footnotesالهوامش

• 1
  Nizar Saghieh and Ghida Franjieh, When the state suffers from chronic legal illness: The movement around Law 220/2000, from diagnosis to intensive care, published on the Legal Agenda website, 10/5/2013. ↩︎
• 2
  Consultation No. 774/2005 issued by the Legislation and Consultation Authority at the Ministry of Justice, dated 5/11/2005 (Basis No. 753/E/2005). ↩︎
• 3
  On all these matters, see the report referred to in the previous footnote. ↩︎