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Sami Atallah and Zeina El-Helou, respectively LCPS executive director and secretary-general of the Lebanese Association for Democratic Elections (LADE)


June 2017
“Our” New Electoral Law: Proportional in Form, Majoritarian at Heart

The Lebanese government and parliament finally approved an electoral law on 16 June 2017, “averting” a political and constitutional crisis. Political parties have congratulated themselves for this “achievement” despite being four years late and creating a dangerous precedent by illegally extending the parliamentary mandate three times since 2013. While the long-awaited electoral law contains elements of a proportional representation (PR) system, its soul is majoritarian and its districts are crafted according to a political and sectarian calculus. Furthermore, the law carries no reform provision such as a women’s quota, an independent electoral commission, or adequate limits on campaign spending. In fact, the law has consolidated the mechanisms by which larger parties can mobilize more voters through inflating their registered number of delegates, increasing campaign spending limits, and permitting existing charitable organizations to provide services in return for political loyalty during election season. Finally, the way the law was sped through parliament after being hastily cooked up—without any serious debate with civil society or even parliamentarians—effectively qualifies it as a decree rather than a law.
 
Indeed, Lebanon has finally adopted a PR system. Many are under the impression that this will enhance representation, since seats are allocated based on the share of votes earned rather than the previous winner-takes-all majoritarian system. In theory, if two lists are competing in a district with ten seats, the list that wins 60% will receive six seats whereas the second list will receive the remaining four seats.
 
However, several provisions in the law undermine the PR system that the political elite are boasting about. The first is the size of districts. For a PR system to be highly proportional, the number of seats in each district should be high, at least twenty, given the sectarian quota in the parliament. In the new law, the average number of seats per district is nine. In fact, eight out of fifteen districts have eight or less seats per district. Some districts like Saida-Jezzine and West Bekaa-Rashaya have five and six seats, respectively, which is far too small for a PR system to be effective.
 
Second, the PR system is further compromised in districts where seats are assigned to many sects. In this way, if two lists are competing against each other for a sect’s only seat within a given district (accounting for twenty-seven seats in total), in effect a majoritarian system—camouflaged by PR—would determine the outcome. Take for instance the West Bekaa-Rachayya district, which has six seats: One for Druze, one for Shiites, one for Greek Orthodox, one for Maronites, and two for Sunnis. In this case, candidates vying for a seat that is the lone confessional allotment in that district will only be running against one another, further weakening the PR system.
 
Third, one must consider preferential voting at the sub-district level, where voters are able to designate one preferred candidate on their ballot. While preferential voting increases intra-list competition, this brings the majoritarian system back into the fold to select individual candidates. This suggests that under the veneer of voting for a list, the means exist to maintain the often damaging clientelistic relationship between voter and politician, a hallmark of campaigning and politics under the previous electoral law.
 
Fourth, the passing threshold to gain seats further undermines representation in some districts. Under the new law, for a list to win a seat, it must garner a total number of votes equivalent to the total number of voters divided by the number of seats in a district. However, in some smaller districts such as Saida-Jezzine, the threshold could reach 20%, which means that smaller parties or lists will likely be excluded from competing for seats, hence limiting the degree of proportionality.
 
The law suffers from other inconsistencies. The drawing of districts does not seem to have followed a clear and consistent criteria. For instance, electoral districts are sometimes mohafazas (Akkar and Baalback-Hermel) or qadas (Metn and Zahle). Additionally, two pairs of qadas—Marjeyoun and Hasbaya, and West Bekaa and Rachaya—are each grouped in one sub-district under the pretext that these qadas have always been merged. 

However, the historically-merged qadas of Minieh and Dinnieh in the North have been split into two sub-districts. Of particular note is that Minieh has only one Sunni seat, hence there will be no option for any preferential vote for Minieh voters. The division of Beirut is also controversial, as districts were drawn along sectarian lines, largely in accordance with the demarcations of the green line during the civil war.
 
In addition to the aforementioned shortcomings, the law contains key mechanisms for influencing election outcomes. For one, Article 90 of the law permits each candidate on the list to have one delegate at each polling station and one mobile delegate for every two stations. Given that the new law requires lists to be formed, the number of assigned delegates should calculated according an entire list and not for an individual candidate. This practice is borrowed from the previous law, under which parties were able to inflate the number of delegates so that established parties with resources could gain a head start in voting. Using data from 2009 and based on a back of the envelope calculation, LCPS estimates that the number of delegates that could be legally paid is at least 60,000. If each brings four other family members or friends, this increases the number of votes to 300,000, which is a substantial percentage of the total number of votes.
 
This is exacerbated by the fact that the new electoral law increased the campaign spending ceiling, allowing parties with more resources to unduly influence election results. While the previous law permitted each candidate to spend up to LL150 million ($100,000) plus LL4,000 for each registered voter, Article 61 of the new law has more than doubled this amount. Now, each candidate can not only spend LL150 million but the list can also spend LL150 million for each of its candidates as well as LL5,000 for each registered voter in the larger constituency. This modification has significantly increased “legal” campaign spending, which could reach $12 million per list in Baalback-Hermel (ten seats) and $16.7 million per list in Chouf-Aley (thirteen seats). While the law prevents parties or candidates from providing services to voters in order to prevent vote buying, Article 62 permits established charitable organizations that have been in existence for more than three years to do so. This privileges political parties that have a network of organizations in place providing services to constituents in return for political loyalty.
 
We must not cast aside the fact that this law has also increased the candidate nomination fee from LL2 million to LL8 million. This, in concert with the increased electoral threshold, spending cap, and potential need for more delegates will impede new voices and groups from entering the electoral ring. This law very noticeably is designed to exclude new political challengers from becoming viable, partly with the help of a gimmick: The magnetic voting card. While the Ministry of Interior and Municipalities has been tasked with examining its feasibility, the  magnetic voting card could amount to little more than a justification for the eleven-month postponement. This delay is not necessarily aimed at determining how to motivate voters to head to the polls—given that most political parties are effective allies—but rather to figure out how to navigate the formulation of lists in various districts with other parties.
 
It is not only flaws in the electoral law that are problematic. The process of formulating the law should be considered worrisome by all Lebanese. Political leaders who are celebrating the birth of the electoral law have, once again, undermined the institutions that are tasked with policy-making. The parliamentary committee that has been tasked over the past couple of years with reviewing various draft electoral laws and proposals now seems entirely irrelevant. This electoral law was drafted behind closed doors by a few representatives of the political class. Instead of submitting it to the Council of Ministers to be properly discussed, it was approved almost a few hours after being circulated. Worse yet, when it was submitted to parliament, no time was allotted for a parliamentary committee to study it. Certain articles of the law were voted on in an expedited fashion, and the remaining sections of the draft were voted on by the plenary at once, limiting any substantive debate. While it took eight years to be drafted, the new electoral law was approved in record time—less than seventy-two hours—raising serious doubts about how many MPs have actually read it.
 
Some people may argue that the speed of passing the law was necessary to avert a fast approaching political and constitutional crisis. We argue that the crisis they were trying to avoid was of their own making and now they are trying to save their own skin above all else. The process by which Lebanon’s new electoral law came about is not how laws should be drafted, debated, and approved. In fact, this electoral law has the markings of a decree, one which has now been imposed on voters. Once again, political leaders have hijacked the very institutions that are supposed to produce laws, making a mockery of our democratic infrastructure that we, as concerned citizens, should seek to strengthen rather than undermine. 






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