“Lebanon Debate” – Basma Atwi
The House of Representatives approved a fundamental amendment to the law proposal, which was primarily intended to subject contractors in the Ministry of Information to the provisions of the retirement and dismissal system, so that the General Authority replaced the phrase “contractors in the Ministry of Information” with the phrase “contractors with public administrations,” while maintaining a basic condition that limits the benefit to those whose contracts were concluded or approved in accordance with Decree No. 5240 issued on 4/5/2001. With this amendment, the law is no longer specific to the Ministry of Information, but on the other hand, it has not become a general law for all contractors. Rather, it has turned into legislation that grants a privilege to a specific category of contractors and not others, even though all contractors perform the same public function and are subject to the same public administration. (The decree is attached to the article)
First: Legislation based on a standard that has nothing to do with the nature of the job
The criterion adopted by the text is not the nature of the work, nor the duration of service, nor the need of the administration, nor the nature of the legal position of the contractor, but rather merely a historical fact represented by the fact that the contract was concluded or approved under Decree No. 5240. This is a criterion that lacks any connection to the goal that is intended to be achieved by the law, because the right to retirement or exchange compensation must be linked to the actual public service performed by the person, and not to the administrative decree that approved its use more than twenty-five years ago.
The contractor who has worked for twenty or thirty years in the administration, attends daily, bears the same responsibilities, and performs the same tasks as his colleague covered by Decree 5240, does not differ from him in any objective element that justifies depriving him of the same right. Therefore, the date of the contract or the source of its approval becomes the only basis for discrimination, which is discrimination that is not based on any legal or functional justification.
Second: Converting an exceptional decree into a permanent source of privilege
The deeper problem lies in the nature of Decree No. 5240 itself. This decree was not issued to establish a general system for employment or contracting in the state, but rather it was issued within the framework of an exceptional treatment of the conditions of what was called at the time “surplus” in public administrations, that is, employees, contractors, and wage earners whose situations arose in the post-civil war period, and they were redistributed and their administrative conditions were settled. The decree was, by its nature, a transitional decree aimed at ending an anomalous situation, and not at establishing a distinct and permanent legal status for those included. 5240.pdf
However, the new amendment turned the function of this decree upside down, as it transformed it from a tool to settle an exceptional circumstance into a permanent standard that grants its owners retirement rights and deprives other contractors of them. Thus, the decree is no longer merely an administrative milestone in the history of public service, but rather has become a source of continuous legislative privilege, which is what the legislator did not intend when it was issued in 2001.
Third: A clear violation of the principle of equality
Article Seven of the Lebanese Constitution enshrines the principle of equality of the Lebanese before the law, and the jurisprudence of the Constitutional Council established that any discrimination between citizens is not legitimate unless it is based on an objective standard linked to the nature of the goal sought by the law.
As for the current case, there is no objective difference between the contractors covered by Decree 5240 and thousands of other contractors working in public administrations. They all perform similar work, bear the same responsibilities, receive their wages from the public treasury, and are subject to the same administration authority. The only difference between them is the date of the contract or the authority who approved the contract, which is an element that is not legally suitable to be a basis for discrimination in retirement rights.
Therefore, the law does not distinguish between different situations, but rather distinguishes between similar situations, which constitutes a clear violation of the principle of equality.
Fourth: Punishing those who abide by the law
The irony is that the group that will benefit from this law is the group that came as a result of an exceptional settlement imposed by post-war conditions, while contractors who were later used to meet the actual needs of the administration, with legal and fundamental approvals, are deprived of the same right.
Thus, those who adhere to legal principles have fewer rights than those included in an exceptional settlement, and the exception turns into a source of privilege, while the general rule becomes a reason for deprivation. This is a result that contradicts the most basic principles of administrative justice, because the original settlement is a means to end disparity, not to create new disparity.
Fifth: A violation of the unity of the legal status of the contractors
The law creates, for the first time, two categories within a single legal status for contractors in public administrations. A group enjoys retirement rights, exchange compensation, and state employee cooperative benefits, while another group remains deprived of these rights, even though its members may work in the same administration, in the same job, and under the supervision of the same administrative authority.
This leads to the fragmentation of the legal system for contractors and the establishment of parallel systems within the public administration, in contravention of the principle of the unity of the legal status of contractors, and creates a permanent disparity within the public facility that is not based on any functional basis.
Sixth: Financial and administrative implications
It does not appear that this amendment was based on any actuarial or financial study that would justify limiting the benefit to this category specifically, nor does it provide a comprehensive solution to the problem of contractors, but rather postpones it. It is natural that granting the right to retirement to one group and not others leads to a torrent of judicial and constitutional claims from all contracting parties, based on the principle of equality, which may later force the expansion of the scope of benefit to include everyone, with the resulting financial burdens much greater than what would have been incurred if a comprehensive system had been put in place from the beginning.
The administration will also find itself faced with employees and contractors doing the same work but subject to different retirement systems, a situation that reflects negatively on job stability and on the good management of human resources in the public sector.
Seventh: Contrary to the philosophy of the original proposal
What is established from the original proposal and the reasons is that it was exclusively related to contractors of the Ministry of Information, based on the specificity of their situations and their job reality, and that they are practically subject to the system applied to permanent employees in the Ministry in terms of ranks and grades.
However, the General Authority replaced the phrase “Ministry of Information” with “Public Administrations” without amending the philosophy of the proposal or its compelling reasons, and without explaining the legal justification that makes all public administration contractors covered by Decree 5240 benefit from this system, while other contractors remain deprived of it. Thus, after being amended, the text became fundamentally different from the philosophy of the proposal that was discussed in the committees, which raises serious questions about the extent to which the final text is consistent with the foundations on which the proposal was originally built.
There is no dispute that contractors who have spent long years serving the public administration deserve fair legislative treatment that guarantees them job stability and social rights. However, justice is not achieved by granting a privilege to a group that originally emerged from an exceptional settlement, and depriving thousands of other contractors who perform the same work and serve the state under the same conditions.
If the legislator decided to subject contractors to the retirement system, then the constitutional and legal logic requires adopting a general and objective standard, such as the length of service, the nature of the job, or the continued need for work, and not a historical standard linked to a decree issued to address administrative surplus after the civil war. Otherwise, the new law will not have addressed a defect, but rather it will have created a new discrimination within the public administration, and devoted a permanent privilege to an exceptional group, making it vulnerable to serious criticism from the standpoint of justice, equality, constitutionality, and good management of the public service.
