The battle over privatization in Lebanon has trodden the same well-worn path for decades; the left decrys the idea as a nepotistic sell out and the right lauds the concept as the only way to reform the country’s decrepit public services. But, for now, the two sides may have found a compromise in the form of a draft public-private partnership (PPP) law.
The idea was first proposed and approved by the cabinet in 2007. But Lebanon was in the midst of a political hurricane which swept away any sense of due process, leading parliament and its speaker to simply ignore the law.
Today, the country has both a functioning cabinet and parliament and the issue of PPPs is back on the table. Chatter over the prospect of passing PPP legislation recommenced when the Finance Ministry issued the current budget proposal in April. That same month, Amal Member of Parliament Ali Hassan Khalil proposed a version of a PPP law to parliament, aimed mainly at infrastructure projects.
“The PPP law was seen as a compromise between the two political camps after value added tax was dropped from the budget,” says Dany Haddad, lead researcher at the Lebanese Transparency Association, Transparency International’s local chapter.
The Finance Ministry and the parliamentary majority have long advocated privatization of key sectors in accordance with Paris III reforms, while the opposition has either been reticent to agree or voiced all-out rejection of any of privatization.
In July, the Higher Council for Privatization (HCP), the government body in charge of planning, initiation and implementation of privatization programs drafted a new version as the issue picked up steam.
“PPP is not privatization and PPP is not privatization-lite,” says Ziad Hayek, secretary general of the HCP, which has been in operation since 2000 but has is yet to oversee any form of privatization, due primarily to wrangling between political camps over the issue. As such, PPP legislation could well prove to be a boon for the HCP, which would act as the effective regulator of all PPPs.
According to Hayek, under the new law the government will not actually sell anything to the private sector; rather, the private sector will own and operate an asset such as a power generation plant and sell its products to the government for a price. Where the private sector is providing a front-end service — as with the private firm that manages the Jeita Grotto — the draft law says that the private sector may collect on behalf of the government. That, however, does not mean that the private sector can set prices. The government may also reserve the right to buy back capital assets over time.
“The government has responsibility but has authority as well. It is not that the private sector is now sitting by licking its chops and waiting to make a killing,” insists Hayek, adding that the state will maintain full control over pricing of services to the public. “The responsibility to maintain the public good is still with the government. The private sector is not dealing with the consumer, it’s dealing with the government.”
Now fund and regulate it
One of the greatest fears associated with private sector engagement in Lebanon is nepotism, and PPP is no exception.
“The legislation does not even mention conflict of interest,” says the LTA’s Haddad, whose organization has long advocated conflict of interest legislation. The latest draft law currently places the authority for overseeing the tendering process in the hands of the HCP and only alludes to “the principles of transparency and equality among competitors.”
The only other safeguard that exists against conflicts of interest is the Privatization Law 228, passed in 2000 as an adjunct to the PPP law. It states that for a period of two years, members of the HCP, monitoring bodies under it and legal persons who provide assistance to it are “not allowed to be associated directly or indirectly, in Lebanon or abroad, with any kind of work in the private institutions participating in the privatization operations, or with any of the privatized institutions.” In addition, they are not allowed to acquire “directly or indirectly” any shares in the concerned companies unless they do so through the stock exchange. But that will not stop public officials — such as MPs who own companies — from bidding on projects that ministers from their own political party are tasked with overseeing. This is already happening now, according to Haddad.
“This is a framework law and you cannot include everything in a framework law. If you find a way to do that, let me know,” Hayek quips in response. “You have to look at whether that person is in a decision making position for that project. If he is not, then he is a citizen.”
The HCP comprises the prime minister and the ministers of finance, economy and trade, justice and labor — all of whom, at the moment, are members of Prime Minister Saad Hariri’s political coalition. If a PPP project concerns a ministry that is not already part of the Council, then that minister also joins.
Then a “PPP unit” will be formed under the auspices of the HCP with representatives from each of the concerned ministries preparing tender specifications and dividing the risks of a project between the ministry and the private partner.
Since many of the projects ripe for PPPs are in sectors controlled by the opposition’s political camp, such as energy, tourism and health, it is likely that PPP units will be bipartisan.
“We have removed the decision from a minister who… will bring in his people and fix them up,” says Hayek. “Is someone going to bribe six ministers, six director generals and keep those involved quiet and happy? I’m not saying it’s impossible, but it’s improbable and much more difficult.”
That pesky procurement
Another notable omission from the proposed PPP legislation is a streamlined procurement procedure, which is currently in the works at the Office of the Minister of State for Administrative Reform (OSMAR). That draft law intends to bring Lebanon in line with international procurement procedures, replacing the present law that dates back to 1963. Hayek says that he asked OSMAR not to include PPP in the law and they agreed but have since come under pressure to include it.
“The reason [for not including PPP under the new law] is that doing so puts the authority back under the minister in question,” says Hayek. “When a ministry does such a contract, either the provider is desperate or they are from the minister’s own people, who will agree on how to fix it afterwards. There is always some type of conflict.” OSMAR did not respond to repeated requests for comment.
After over three years in the pipeline, passing a PPP law now seems to have become a priority. At a press conference in July, MP Robert Ghanem, who chairs the parliament’s Administration and Justice Committee, which is tasked with pushing legislation to the floor, said that the PPP law was fifth on his priority list, behind a law to allow the private sector to produce electricity.
That may not be much of a signal, however, given that neither of the two laws parliament passed since July were in the top five on Ghanem’s list. But perhaps this time, if a sufficient spirit of partnership prevails in parliament, it could translate into a partnership for the people.