Missing Questions in the Debate over Electoral Reform

There is much discussion at present on the subject of electoral law reform in Lebanon. The issue is debated across a wide spectrum of platforms (government, parliament, the Bkerke Committee, political parties, polling organizations and other concerned bodies) and has generated a plethora of recommendations and draft laws, endorsed and supported by the views and reports of various experts and technocrats. These recommendations, steadily accumulating since 2005, offer competing visions of what should be done to ensure the law is genuinely democratic and promotes representational government.



All these debates and recommendations revolve around two fundamental issues, the first being the nature of the electoral system (i.e. majority rule versus proportional representation) and the second, the size of the electoral districts used (i.e. small, medium, large or a single district). These two issues are accorded critical importance due to the direct impact they have on the results of elections and the nature and composition of political representation.



Looking through the totality of all the draft laws and proposals, and taking into account their various justifications and objectives, it is evident that a number of difficult and fundamentally important questions concerning electoral law are either entirely absent from the current debate, or otherwise sidelined. So long as these questions are missing and are denied serious and mature consideration, electoral law will never fully engage in reform.



This article will take a different approach to electoral law, re-examining these critical questions in an effort to shed light on the challenges confronting the process of reform in general, and electoral reform in particular; challenges whose historical context will be situated in a review of the experience of governance and the exercise of political power in Lebanon over the last two decades.



Some of these challenges are linked to the balance of domestic political forces in Lebanon, their evolution and the role they play in the reform process, while others are associated with the function of the electoral system in the strategic thinking of the country’s political actors.



What balance of domestic forces can produce electoral reform in Lebanon today?



In the early 1990s, the balance of regional and international powers succeeded in bringing an end to civil war in Lebanon for the first time since 1975 and the Syrian regime was tasked with translating this consensus into military and political reality. Using its control of Lebanon’s security apparatus, its internationally ratified political mandate and its supervisory role in the implementation of the Taif Agreement (also known as, and referred to below as, the Lebanese National Accord), the Syrians worked to create an internal balance of power in Lebanon supportive both of the international/regional consensus and of the Syrian mandate. To create this balance of power it was necessary to mount a coup, not just of the military status quo, but also at the level of executive political power, thereby laying the foundations for long-term radical change.



The coup, carried out under cover of the transitional period and supposedly “exceptional and unique” was encapsulated in Article A6 of Section 2 (i.e. that dealing with political reform) of the Lebanese National Accord which increased the membership of the Lebanese parliament by more than a third in 1991 (and by appointment) thereby altering the balance of power within the legislative assembly. Prior to this change parliament comprised 68 deputies (all that remained of the 99 deputies elected in 1972). To these were added a further 40 deputies, bringing the total to 108, which was increased to 128 in 1992.



This radical reordering of the chamber left the way clear for the new parliament to embark on a process of legislating and legalizing the mechanisms that would bring about a specific balance of domestic political power in the country, and furthermore to protect this new dispensation and renew it periodically. The electoral law was one such mechanism, and it brought into a being a dispensation that between 1991 and 2005 furthered the interests of the “mandate regime” (a term that refers to a complex and sprawling Syrian-Lebanese political structure, whose diverse web of interests and influence extended into a great number of political economic and social forces in Lebanon) and which today serves the inheritors of this regime: the princelings of political parties, sects and commerce.



The consequences of the electoral law (i.e. the legislative body and its role in forming the executive) allowed for the pre-planning and active guidance of the direction taken by Lebanon’s political dispensation and society as a whole over the last twenty years. This was achieved first by successive electoral laws and secondly by the selective and partial implementation of the structural reforms prescribed by the Taif Agreement. All these things contributed to the creation of a pliant and tame political class that was able to secure its hold on power and protect its interests under the mandate regime and in the unpredictable regional climate that accompanied and followed the Syrian withdrawal from Lebanon. The most notable factors in this class’s success were as follows:



First, it knew how to exploit the mechanisms and balances of power imposed upon it in order to realize its own political and economic self-interest, undergoing a transformation from a mere recipient and executor of orders into one of the principle partners in the mandate regime.



Second, the political class converted their own quarrels, petty disputes and internecine wars into issues of major import in public life that reinforced and dominated Lebanon’s factional divisions and recruited all classes and sectors of society (i.e. youth, media, civil society organizations and unions) into their struggle. These conflicts were accorded a primacy that superseded all other reforms, laws and institutions.



Third, they exploited the right of veto (one of the four key characteristics of any consensus based political system, along with broad-based coalition government, proportional representation and self-governance in certain areas such as personal affairs and education) as a means of obstructing and delaying reform and preserving the status quo. The exercise of the right of veto at different stages in the flawed implementation of the Taif Agreement took three principle forms, all opposed to the principle of the separation of powers and obstructive to reform:



The first approach to the veto manifested itself during the mandate regime (1991-2005) and took the form of the “presidential troika”. In other words, no decision could be ratified without the consent of all three presidencies on the grounds that they represented the interests of their respective factions. In the majority of instances such consent should have been technically impossible. In all cases the final word went to the Syrians. In 1992 a clear majority of Christian politicians and religious figures rejected the electoral laws and subsequently boycotted the elections by use of a veto that should have prevented them taking place. However, the elections were held with the approval of the troika, who ratified the results, and the foundations for the next phase of Lebanon’s political history were laid.



The second type of veto manifested itself in the period of national unity governments following the Syrian withdrawal (2005-2010). In the absence of any foreign power and the consequent destabilization of the domestic balance of political power, the “vetoing third” principle was a necessary trump card in the hands of the political minority, allowing them to obstruct the passage of important pieces of legislation. Very quickly however, it became a means to block reform and derail governance, which led in turn to renewed calls for foreign intervention in Lebanon’s internal affairs. For instance, the Doha agreement which stipulated Arab and international oversight of the country’s affairs was necessary to check the declining state of the country’s domestic fortunes and to find a way out of the paralysis affecting Lebanon’s constitutionally established institutions by drawing up a road map of presidential and parliamentary elections in 2008 and 2009 respectively.



The third form of veto is a kind of “sectarian veto” that extends the right beyond the presidential troika and parliamentary and government blocs, to encompass the interests of various social factions. This form of veto has been slowly taking shape since the formation of the majority government in 2011 and ensures that no resolution can be passed without the consent of the heads of the different religious sects and that no legislative measure can impinge on the interests of the established political forces, whether in government or opposition. In effect, it amounts to a return to the old approach to reform of trade-offs and allocations and to the use of the veto (or fatwa) to defend sectarian privileges and gains. It is a step back for reform, a regression not just to the status quo of 1960 but beyond, to the time of princedoms and loyalties, to the bonds of blood and tribe.



Four, the political class’s exercise of power over the last twenty years—distorting the constitution and abusing the function of state institutions—has created a self-sustaining political dispensation with its own interests, alliances and strategic goals and which enjoys a degree of freedom and independence from the circumstances that created it (i.e. the former mandate regime). Yet for the past five electoral cycles, this political dispensation has never once been able to freely ratify or draft an electoral law: all the electoral laws in this period have been imposed on them by mandated foreign powers. It is thus a very fragile balance of forces, founded on an approach to governance that is based on horse dealing and the most basic form of mutual interest.



Paradoxically this fragility is the secret of its longevity: no member of this class is strong enough to tilt the balance of forces in his favour without placing his position and interests in jeopardy.



The question thus arises: What balance of domestic political forces can achieve electoral reform and in the process alter the current make-up of political power in Lebanon? Given that the political class have failed to effect radical change in electoral law, that electoral law has failed to change the composition and role of the political class (especially the role they have played over the last two decades) and that none of the changes in the Lebanese political scene since 2005 have come about as a result of electoral law or the political class, but as a consequence of dramatic developments imposed from without; given this, the question of the potential future function of electoral law within the Lebanese political system becomes of vital importance.



What is the basic function of the electoral system?



For the past twenty years the electoral system in Lebanon has been treated primarily as a means of regulating, legitimizing and controlling the perpetuation of political power. It comprises a group of laws and procedures for electing the legislative branch (the legitimate representative of the citizenry) which in turn, either directly or indirectly, unilaterally or in concert with other parties, elects the remaining political, constitutional, judicial and socio-economic branches of government. Over the course of numerous electoral cycles, the electoral system has validated the importance of its function as a means of reproducing political power whilst maintaining the status quo, in direct opposition to constitutional and legal principles. This can be seen by the following:



The 1991 parliament was created through appointment, in defiance of the principle of political representation through democratic election. In 1992, the legislative branch voted on an electoral law and raising the number of sitting deputies still further, contrary to the National Accord (Articles A4 and A6 of Section 2 dealing with political reforms and paragraph E from the section dealing with other reforms) and article 24 of the constitution.



The 1992 parliament, with its dubious claim to represent all Lebanese citizens, also contravened the constitution in its exercise of its powers and the reproduction of political power. In addition to lending its support to flawed governments, entrenching the principle of opposition from within government (which was then adopted by subsequent administrations) and setting up a constitutional court with reduced powers in contravention of the National Accord (Article 2 of the section on rulings) and article 19 of the constitution, in 1995 this body extended the president’s term of office in contravention of article 45 of the constitution and in 1996 passed another unconstitutional electoral law.



The parliament created by the 1996 elections continued to act unconstitutionally and committed other breaches of trust including passing the law delaying local elections in contravention of the spirit of the National Accord (paragraph K of the section on general principles, paragraph A of the section on other reforms and paragraph K of the preamble to the constitution), and which was subsequently repealed by the constitutional court in 1997. Furthermore, this parliament set up a powerless socio-economic council in 2000 also against the spirit of the National Accord (paragraph H of the section on other reforms) and followed the example of its predecessor by unconstitutionally electing a president and passing another unconstitutional electoral law in 2000.



The 2000 parliament committed the same constitutional infringements, extending the president’s term in office and passing the same unconstitutional electoral law as the legal framework for the 2005 elections, despite the withdrawal of the mandate regime from Lebanon in that year.



The parliament created by the first elections to be held in a Lebanon free from Syrian control in 2005 merely confirmed that the function of successive legislative bodies since 1991 was to continue unchanged. Indeed, the parliament was not only responsible for perpetuating the flaws of the executive branch, but its paralyzing influence extended to all branches of government (government, parliament, the presidency, the constitutional court), bringing the country to the brink of a new civil war and leading it to solicit foreign intervention to help resolve the crisis. This done, it unconstitutionally re-elected the president and passed another unconstitutional electoral law in 2008. The status quo remained entirely unaffected for the duration of this time.



The current parliament created by the 2009 elections continues to perpetuate a incapable executive branch and is currently debating a series of draft electoral laws and proposals all of which are in contravention of the National Accord and the constitution.



The parliament which will be elected in 2013 will continue along the path laid out by its predecessors, in defiance of both the National Accord and the constitution.



The upshot of the electoral system functioning in this way has been to produce two decades worth of legally flawed legislatures and executives, internally incoherent and incapable either of governing the country and enforcing the structural reforms stipulated by the National Accord and the constitution. It has proved itself largely incapable of equipping the political system to make the transition from war to peace, by resolving conflict and competing factional interests through the rule of law and other peaceful non-violent mechanisms.



The two electoral cycles (2005 and 2009) since the Syrian withdrawal have not only bolstered the power of sectarianism at the ballot box but have let slip the opportunity to create real change in the political system.



Defining the strategic vision for the future functioning of the political system is therefore vital if we are to understand the ultimate purpose of these reforms.



What is the strategic vision for the future functioning of the political system?



In twenty years the political class has not achieved a single one of the structural reforms recommended by the Taif Agreement as a first step towards reforming and evolving the political system. The Taif Agreement put forward a strategic vision of the long-term objectives of reforming the political system and delineated what it saw as the proper function of this system. With this in mind it proposed a menu of structural reforms which, albeit lacking detail in some regards, was based on a precise understanding of the problems of the current system, its recurring crises and limited vision, and on a genuine appreciation of the fears and hopes of the country’s various sects.



This reformist roadmap is underpinned by three core components, each with its own functions within the political system whose overall effectiveness and performance is reliant on the balanced interaction between the three components. The first component is linked with the system’s political functions and one of its priorities is establishing the concept of citizenship based on equal rights and obligations for all citizens before the law. This citizenship is the foundation of a political representation free from sectarian/regional/loyalist concerns and fears.



The second component deals with the value system within the political system and the role of sects as the guardians of the national entities cultural and civilizational heritage.



Furthermore, it addresses the political system’s ability to liberate sects from conflict and political trading and give them the space they require to deal amicably with one another and evolve.



The third component deals with the organizational and distributive functions of the political system, whose primary purpose is to achieve comprehensive social justice and redress cultural, social and economic imbalances on the regional level.



As envisioned by the Taif Agreement, these three components are to be supported by a single national institution with the following representational and functional adjuncts:



An elected parliament free of sectarian constraints tasked with political functions.



A senate responsible for examining and debating issues that affect the country as a whole as well as matters connected to the sects. This body has a primarily cultural and civilizational function.



Local elected bodies (municipal councils and local courts) that are not only responsible for all aspects of local development but which represent their constituents, speak in their name, voice their demands and needs and defend their interests.



An independent judiciary and agencies responsible for oversight, accountability, security and defence that work with the bodies listed above and other specialist agencies.



These structural reforms are to be enacted in their totality, not partially, though they may be implemented in phases, with a specific reform in a given field paving the way for other reforms in accordance with an overall strategic vision. Any individual project that is enacted without due regard to the principle of integrating into a unified process of reform, will almost certainly be counterproductive, further complicating and hampering reform as a whole.



In the post-war period the ruling political classes were content to implement reforms with the aim of redistributing powers and favours between social factions, while actively blocking any reformist measures that would assist the creation of a political dispensation based on new political, economic, social and cultural principles. By focussing on the electoral system to the exclusion of other structural reforms they betrayed the principle of an integrated strategic vision as outlined in the National Accord. The electoral system was treated as the sole mechanism to reform the flaws of the entire political system and the only means of ensuring equilibrium between competing political and sectarian forces.



The political class could advance no vision for the future of the political system. Today they put forward draft electoral laws and recommendations that are not only unconstitutional but which actively contradict the possibility of the other reforms stipulated by the Taif Agreement. For instance, how are small electoral districts (i.e. the districts for parliamentary representative on the national level) consistent with the objective of extensive administrative decentralization, or with a system of elected municipal councils responsible for larger districts, especially when these smaller parliamentary districts are structured around a culture of client relationships based on the provision of local services? How are proposals for parliamentary districts based on sectarian and factional considerations consistent with the objective of abolishing political sectarianism and the establishment of a senate to represent the sects? Such proposals and draft laws represent either a profound incomprehension of the problems facing the electoral system (and thus a terminal inability to find appropriate and durable solutions) or otherwise a deliberate intention to hobble reform and maintain the status quo. What kind of thought process comes up with the kind of draft electoral laws currently being advanced as solutions to the crisis of the political system? What is the nature of this crisis?



The question of the reforms proposed by the country’s various political forces, indeed the attitude taken towards reform embodied in these proposals and the vision of its role in the political system is thus of critical importance. If we start from the premise that the crisis facing the political system is a crisis in the way power is exercised, a crisis of the dominant political culture, and not so much one of political representation, then we must begin looking far beyond reforming electoral law. Confirmation of this can be found in the fact that the changes being witnessed in other Arab countries, both before and after the so-called Arab Spring, did not stem from the ballot box.



Article first published in Legal Agenda issue no. 6, October 2012

Translated from the Arabic by Robin Moger