On May 6, 2018, elections took place in Lebanon in accordance with a new electoral law. The law was based on four primary characteristics:

 

1. Competition between electoral lists on the basis of proportional representation.

 

2. The exclusion of all lists that do not reach an “electoral threshold,” calculated as a certain percentage of parliamentary seats  allocated to a district. The threshold is relatively high, especially in electoral districts where the number of seats is low. Overall the threshold ranges between 7.7% and 20%.

 

3. Permitting voters to cast a preferential vote for one of the candidates on the list they choose. Successful candidates on the winning lists are elected according to the number of preferential votes they receive.

 

4. Taking into account the sectarian makeup of each district. This means that candidates with a high number of votes may be excluded in favor of other candidates from the same list, if the number of seats allocated for their sect has already been filled.

 

Leading up to the elections, the Interior Ministry, in the guise of electoral education, broadcast a film depicting a wedding in all of Beirut’s neighborhoods, and making reference to an “electoral wedding.” The broadcasts coincided with a significant number of electoral irregularities, including the resignation of one of the members of the Electoral Supervisory Committee. In this pre-election atmosphere, The Legal Agenda published a special elections issue. Here we translate some of its key articles.

 

 

Walk through the streets of Beirut in the run up to election and your eyes will be assailed not only with images of candidates everywhere you look, but a video playing on constant loop about a “people’s wedding.” We are meant to understand that the wedding is a celebration of  democracy, after nine years without such a celebration. It was hoped that the joy of the wedding would erase the democratic deficit caused by laws extending the parliamentary mandate [beyond its four-year term]. The ruling authority emerges triumphantly, its achievements today independent from its previous actions.

 

But wait. We may be at a “wedding” in which the ruling power renews a consensus by popular mandate. But this is not, as is claimed, a celebration of democracy. Once it became obvious that the former regime was to be re-established, with all of its constituent parts, [the “wedding” language] can only be understood as propaganda or glorification of the regime in power. This is propaganda because it besieges and besets the eyes, constantly playing in order to force people to believe that elections that return the same authorities to power constitute “democracy,” even though we have seen signs and heard reports that say otherwise. And these are what we will discuss in this special issue of The Legal Agenda, beginning with the following observations:

 

1. The Election Law Entrenches Sectarianism and Serves the Powerful

 

It was a surprise, no doubt, when the legislature decided to abandon a majority-based system in favor of an electoral system based on proportional representation. But it soon became clear that the intricate rules of the new system maintained a strong majoritarian element in the electoral process. These rules strip proportional representation of some of its advantages, such as ensuring fairness in representation, revitalizing political life and restoring its rationale. This occurs through three negative factors in the electoral law.

 

The first is making representation contingent upon receiving a high proportion of votes, up to 20 percent of votes cast in some cases. This leads to a distortion of representation in parliament, because it excludes any political movements (namely reformist ) unable to attain such a high number of votes. Meanwhile, this system increases the level of representation of the major parties, once the votes from the disqualified lists are settled.

 

An even more serious matter is the indirect impact of this system: it encourages candidates to assemble disparate lists and coalitions in order to bolster the chances of representation. Such coalitions resemble those that existed under the old, majority-based system. Major parties lean towards coalition-based lists out of a desire to circumvent the proportional system and secure more seats than their level of support among voters would otherwise allow. One way they achieve this is by adding prominent individuals from a district to their programs. The individual gains a seat in parliament, and the parties benefit from their vote on important issues and in calculating the size of their voting bloc.

 

The second factor lies in the voter’s ability to determine the winners of an electoral list by specifying a preference for one of the candidates on the list they select. In the context of a list-based system, the function of this principle is uneven. It transforms the members of a given list into potential opponents––unless they are willing to play the role of the “extra”, merely to complete the number required to make up a list.

 

Moreover, this widens the field of competition, making representation a matter not only of competition between lists but competition between members of a list among themselves. This has the effect of transforming elections into an occasion for increased partisanship and division, rather than an opportunity to build sound political alliances. Adding to the social divisiveness is the context of sectarian divides, wherein voters are directed to give their preferential vote to whichever candidate is from their sect, or to a candidate specified by the leader of their sect, whenever possible. This strengthens partisanship , making it even more difficult to overcome.

 

The third and final factor undermining the principle of proportional representation is how the “rules of the game” are defined in the election law. The spending ceiling is very high; and the only element of equity when it comes to candidates’ media  visibility is the fact that the same fee is imposed on all candidates. As a result, candidates who pay more enjoy greater exposure. All of this is in the context of a supervisory committee that has kept its supervisory role to a minimum. It is as though the election law is establishing an arena of open conflict, the goal of which is not the selection of the most convincing candidates (which would be preferable) but rather the victory of the strongest. As such, it undermines the foundations of democracy.

 

2. Overt Exploitation of Influence

 

The 2018 elections were not merely a matter of electoral law. The main players also wielded a number of instruments for peddling influence––tools as diverse and varied as the sources of influence.

 

The first means of exploiting influence was a 2017 decree on the organization of the courts. This was based upon three party lists and enabled both of the ruling parties to appoint judges who were close to them in public prosecution offices, and in sections of the investigative judiciary in areas that were their strongholds. Consequently, these parties had a wider margin for interfering in judicial work, particularly on the issue of whether individuals were detained or released. As a result, these judicial offices became tantamount to centers of influence and cogs in an electoral machine, rather than sites where justice was served.

 

The second example of exploiting influence occurred in the legislative branch. One of its most telling instances was the Budget Law of 2018, which included an entire section dedicated to tax exemptions and reductions in penalties for late payments. In some cases these exemptions amounted to 100% of the amount owed. This created an exceptional situation in the law, effectively granting greater rights to those who had been late in paying their taxes than those who had paid them on time. Another instance of the use of legislative influence as a form of electoral bribery were negotiations between the major political forces for a draft amnesty law. This is notable particularly in light of the politicization and sectarianization  of groups demanding amnesty (which ranged from “agents of Israel” and their families, to the Free Patriotic Movement and Islamists of the Future, to those implicated in producing or trafficking drugs to Hezbollah and Amal).

 

A third use of influence occurred in the executive branch, specifically when 17 government ministers entered electoral races––but also through local authorities making public spaces available for enormous images and campaign advertisements. This was documented by numerous civil society organizations, yet the the Electoral Supervisory Committee remained silent on the subject.

 

3. Actions and Efforts to Avoid Regulations Ensuring the Democratic Nature of Electoral Races

 

The most significant testament to such practices is Sylvana Lakis’s letter resigning her membership on the Electoral Supervisory Committee. Lakis had been appointed to the committee as a representative of civil society. Her resignation letter declared that the Electoral Supervisory Committee was either unable or failed to carry out the greater part of its mission as commissioned by law. She cited numerous reasons, all of which compromised the independence and powers of the committee.

 

The committee’s failure to fulfill its mission is not only attributable to the interference of the executive branch in its work, or delays in securing the resources it needed. It is also largely due to the fact that most of the committee’s members adopted a policy of self-restraint, whereby a conservative interpretation limiting the committee’s powers has consistently prevailed––especially when it comes to their relationship with the Interior Ministry, or with various political authorities.

 

This was confirmed in a press conference convened by the president of the committee Nadim Abdel-Malek on April 23, 2018. He declared time and again his adherence to limiting the committee’s powers according to the letter of the law, with no expansion of scope. Stemming from this conservative reading, Abdel-Malek took the view that that the committee’s powers were limited to monitoring violations committed by candidates, and that the committee had no right to take actual measures regarding the candidates. He reiterated his views sharply and emphatically: the committee has no power regarding “the political candidates” or ministers who wield constitutional powers––“end of discussion, full stop” (his words). The attitude was the same when it came to the failure of the executive branch to take measures allowing people with disabilities to exercise their right to vote independently, as there was no explicit text granting the committee the capability to intervene in the matter. Facing the media’s disappointment regarding the committee’s lack of authority to play an active role, Abdel-Malek finished the press conference by invoking the words of a French jurist: “The law may be harsh, but it is the law.” Of course, what he meant by “the law” was the interpretation of the law by the majority of committee members.

 

Thus it appears that Lakis and Abdel-Malek were evoking a discussion about which principles should be heeded in interpreting the law. Lakis interpreted the powers of the committee as encompassing any matter that would enhance the transparency and integrity of the elections. Her interpretation was based on the purpose for which the committee was allegedly established, most specifically the principles of a democratic system. Abdel-Malek, on the other hand, took the opposite approach. He favored adhering to the text of the law, with no further interpretation, even if that meant turning the committee into a false witness for unfair and non-transparent elections. Indeed he favored this interpretation even if that kept the committee from fulfilling the aims for which it had been established, transforming the body into a tool for intensifying discrimination among candidates, rather than a means to eliminate or lessen discrepancies. Such an interpretation can only be understood in an undemocratic framework.

 

Finally, the ruling powers were not satisfied with merely obstructing the work of the Electoral Supervisory Committee. In parallel, suspicious efforts emerged with the aim of appointing new members to the Constitutional Council, the body that oversees electoral disputes, in the weeks before the election. These efforts were revealed in a draft law prepared by the government in late December 2017. It is as though they were attempting to free themselves from the oversight of the Council, just as they had freed themselves from the oversight of the Electoral Supervisory Committee. In this case, however, negotiations between the political factions about the new appointees to the council ended in failure.

 

This article is an edited translation from Arabic.

 

Keywords: Lebanon, Electoral Reform, Civil Society, Nadim Abdel-Malek, Sylvana Lakis