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SELECTED ISSUES IN THE LEBANESE ELECTORAL LAW

 

The debate surrounding the amendment of the Lebanese electoral system and the electoral Law[1] for the legislative elections of 1996, has largely been focused on the size of the electoral districts, and on the independence of the electoral process, given the current military and geo-political pressures. Many additional issues have to be addressed however, to insure the holding of free and fair elections, irrespective of which electoral system or voting districts are adopted.
 
This article will briefly outline a number of important electoral issues that are relevant for the improvement of the electoral system, as well as to insure a good implementation of the provisions of the current Electoral Law[2].
 
 
WHO CAN VOTE?
 
 
1.         AGE OF VOTING MAJORITY:
 
The age of voting majority is set by the Constitution and the Electoral Law at 21. It has always been requested to bring this majority age down to 18, so that a larger number of the young population participate in the electoral process. Such an amendment will further put the Lebanese Electoral Law in line with the current international practice and standards and will be an additional incentive for young citizen to participate in the political process. This action will require, not only an amendment of the Electoral Law, but also of art. 21 of the Constitution.
 
 
 
 
 
2.         THE RIGHT TO VOTE OF NON-RESIDENT LEBANESE:
 
This right to vote of non-resident[3] Lebanese, has long been a matter of disagreement, whether on grounds of principle or of administrative feasibility. However, arguments against non-residents voting have neither been convincing, nor have they proved to be democratic. Furthermore, the demands for a right to vote, were rejected on grounds that left residents and emigrants equally frustrated, because it was felt inconsistent with a long stated unchallenged policy, to invite and incite “Lebanese emigrants” to invest in Lebanon, and to remain in touch with the mother-country, as an international political and economical asset to Lebanon worldwide.
 
There has been three major arguments against allowing non residents to vote: that they do not pay taxes; that it would unfairly favor Christians; and that non-residents are not in touch with political realities in Lebanon.
 
          The arguments that non-residents should not vote because they fail to pay taxes is undemocratic and restrictive, given that tax-paying is not legally stipulated as a pre-condition to vote. Furthermore, this implicitly tends to assume that resident Lebanese voters are in good tax-paying standing; this is certainly wrong. If paying taxes were to become an eligibility condition, very few resident Lebanese will be permitted to vote.
 
          The notion that Christians would benefit from non-resident votes more than Muslims, is both incorrect and misses the point: for one thing, Christians no longer form the majority of non-residents; and, even assuming they did, elections are supposed to reflect the social fabric of a society; in Lebanon’s case, anyway, confessional representation is always reflected and guaranteed in parity between Christian and Muslim deputies in Parliament.
 
          The third argument, namely that non-residents are not in touch with the political realities in Lebanon, and may therefore make distorted or wrong choices, is equally unconvincing. It is in this context that attempts at defining the length of the “emigrant residence” were made to separate non-residents in categories that would be eligible for voting, while other would not. However, this argument is wrong, because it is based on the false assumption, that non-residents are necessarily indifferent to domestic developments; if a non-resident is not interested in Lebanese affairs, he or she will not bother to register and vote. Similarly, is a non-resident does follow Lebanese affairs, given modern communications, he or she can easily keep abreast of domestic developments as well as most resident Lebanese.
 
Since all Lebanese have a recognized right to participate in elections, one cannot question the right of non-residents to vote. The issue remains primarily an administrative matter, namely whether or not the means should be provided to allow non-residents to exercise their electoral rights.
 
It has been argued that organizing elections for non-residents is technically or administratively or legally difficult, if not impossible. However, this is hardly true, given that many countries have a long standing experience in organizing the vote of their non-resident citizen in embassies. Nor from a legal point of view, are there obstacles to assign to embassies abroad the functions of polling stations.
 
It is recommended only to organize legally the controls of eligibility to vote of the non-residents, as the current system of lists drawn on a geographical and religious bias, cannot be applicable. Therefore, non residents need to be invited to register on special embassy lists, and identify their religion and electoral residence in Lebanon. Once completed, the embassy lists could be sent to Lebanon for the validation of entries by the various competent regional Committees. The work should be coordinated by a special Committee that will be granted the authority to validate the Embassy lists. A procedure, both legal and administrative to that effect, must be incorporated by an appropriate amendment to the Electoral Law.
 
 
 
3.         THE RIGHT TO VOTE OF THE RECENTLY NATURALIZED CITIZEN:
 
The recent massive naturalization of over 130,000 people by special Decree on 30 June, 1994 has raised debate over two main issues, namely, (i) can these newly naturalized citizen vote, and (ii) where are the new citizens to be registered and what effect this will have on their electoral behavior.[4]
 
As the law stands presently, newly naturalized citizen can vote, because a 10 years standing as citizen is not required as a condition for the eligibility to vote, while it is a condition for the eligibility to stand as candidate. However, it is argued that in view of the massive and exceptional nature of the recent naturalization decree, the newly naturalized citizen should be excluded from the voting rights, at least for the next elections. This becomes particularly critical, since the naturalization decree is the subject of a suit before the Administrative Court (Conseil d’Etat) that seeks its annulment.
 
 
 
 
Furthermore, and irrespective of the decision relating to their voting rights, the issue of where to register them, is a issue that needs to be addressed. For newly naturalized citizen may only be registered according to the place of their real domicile. Yet, as a large and new group in Lebanese society, the recently naturalized represent a fertile field to gain political votes. In this respect, one should be watchful that the newly naturalized are not included by political figures, eager to build-up their electorates, in regions outside their real domicile. Already, however, there has been reports of such an unprecedented “personal gerrymandering”.
 
 
 
ELECTORAL LISTS
 
 
4.         REGISTRATION AND RESIDENCY ON ELECTORAL LISTS:
 
The registration of electors in electoral lists is determined by one of two criteria: either one’s original domicile place of residence; or one’s real residence, defined as the place where a voter has been living for at least six months (art. 12).
 
In practical terms, however, the legal right to register in one’s real place of residence, as opposed to one’s original residence, is administratively very difficult. If this right were exercised freely by large numbers of voters, this would drastically change the demographic distribution of electoral lists and significantly alter the traditional power bases of many politicians (e.g. it will inflate the numbers of voters in Beirut; it will highlight the religious/regional segregation that the wars since 1975 have generated). The effect of such choice must be simulated in order to assess its effect on the electoral system.
 
 
 
5.         THE PREPARATION AND REVIEW OF ELECTORAL LISTS:
 
The validity and accuracy of electoral lists has always been a subject of criticism and complaints. Repeatedly in past elections, ballots have been cast in the name of voters who were either dead or who had moved to and registered in other districts[5]. Other complaints focused on the selective exclusion from the lists of voters known to be favoring a candidate or another, thus creating undue administrative hurdles for registration, particularly on election day.
 
 
 
 
Before we can make recommendations for the prevention and solution of such problems, we shall outline briefly the process meticulously set by the Electoral Law to review and correct the electoral lists, although it is seldom respected. The process includes eight stages:
 
1.         By December 24: the government must have already appointed Special Review Committees for each qada’ (art. 14) and an Appeal Committee for each muhafaza (art. 24 & 26). It also has to announce in the press the beginning of the review process (art 13).
 
2.         Between January 1 and 20: The civil servants in all the concerned administrations and courts must automatically transmit to the Committees all information necessary to update and/or correct the voters’ lists, i.e. the Civil Status Department (art. 16), the Police Registry (art. 17), the bankruptcy and حجر courts (art. 17). In addition, every citizen who is over 100 years old must provide the committees with a certificate proving that he or she is still alive, otherwise the citizen’s name is automatically deleted from a voters’ list.
 
3.         By March 15: the quada’’ committees must have completed their review of voters’ lists (including additions, deletions and transfers to other lists). They must also justify each of the changes effected (art. 18).
 
4.         Before March 25: The Committees must publish and make copies of the lists available to the public, by distributing them to the Municipal and regional authorities (Mukhtars, Caimmakam, Muhafez). Any individual has the right to review the lists and copy them. Once the lists are deposited with the above administrative authorities, this must be announced publicly in the news media for each instance of deposit (art. 20).
 
5.         Within one month following the publication of the Lists: any interested citizen, the Muhafiz (governor) or the Mukhtar (mayor) may apply for the correction of the list entries, whether this involves him or herself or any other person, if an entry was neglected or inserted or amended illegally (art. 23).
 
6.         Within ten days from a quada’ committee’s decision: one has the right to appeal to a higher Muhafaza Committee (art. 24).
 
7.         As of May 15 each year: the electoral lists are blocked until May 15 of the following year.
 
8.         Before May 30: The quada’ committee must forward to the interior ministry copies of the corrected lists. The interior minister can request the introduction of further corrections (art. 25). Such amendments can be incorporated into the lists even after May 15.
 
In order to insure that the preparation of electoral lists is properly carried through, three major short-term recommendations can be made, to be performed by the voters, candidates or independent monitoring groups:
 
              1.       To educate citizens in the list preparation process and in their rights to control and monitor the process.
 
              2.       To monitor the process of the list’s review and ascertain that all the deadlines are respected, particularly those related to the timely publication of the modified lists.
 
              3.       To monitor very closely the lists themselves, to insure their accuracy and respect for the law (e.g. automatically delete all above 100 years old, check if newly naturalized were not added in other than their place of actual residence, invite people to review the lists and assist them timely with the correction process). This monitoring could be effected either by interested candidates or by independent citizen monitoring groups.
 
In the medium or longer term, the administrative supervision of the lists review process must be further shielded from any political intervention. One measure, for example, may be to insure that the appointment of the members of the quada’ and muhafaza committees are entrusted to the Constitutional Court or to the Supreme Judicial Council.
 
 
THE ELECTORAL/POLLING PROCESS
 
 
6.         ELECTION IN THE ISRAELI CONTROLLED SOUTH:
 
In the 1992 elections, a large group of voters in the Israeli-occupied zone of southern Lebanon were not allowed to vote in their areas of residence. Moreover, not a great deal is expected to change by next year.
 
In 1992, there were several arguments against the setting up of polling stations in the Israeli occupied zone. They can be summarized as follows: (i) citizens who, for political reasons, could not visit the occupied zone, would be barred from voting; (ii) the Lebanese government would be unable to guarantee the independence, integrity and fairness of the elections in a region that it does not control; (iii) it could be interpreted as a sign of collaboration between the government on the one hand and the South Lebanon Army (LA) and the Israelis on the other.
 
It is for these reasons mainly, that a special provision in the 1992 amendments to the Electoral Law (art. 7), allowed exceptionally and for one time only, to establish special polling stations outside the occupied zone.
 
 
 
 
These arguments, however, and the resulting legal measures were and still are criticized, for the following reasons: (i) they unjustly and unequally limit the voting rights of Lebanese living under occupation; (ii) the Lebanese government should assert its legal sovereignty in the occupied zone, by organizing elections there; (iii) there are ways and mechanisms through which the integrity of the polling could be ascertained.
 
Under the present conditions, we favor a combination of both measures, i.e. maintain special polling stations outside the occupied zone for those unable to enter, while allowing regular elections within the zone, under UN supervision and assistance. Violations of electoral procedure can be sanctioned by the voiding of votes and results in polling stations where a violation or illegality is evidenced. Although this mechanism should not be used to block the entry of potential opponents into Parliament.
 
 
 
7.         ELECTIONS LOGISTICS
 
Elections have been held on separate days for each District (Mohafaza), with no rationale stated for this deviation from the standards provided by Law, which stipulates that the polling process must be held and be completed within 10 hours time[6] on a single Sunday for all districts, unless security reasons mandate that the elections for each district (Mohafaza) be held on a separate date[7].
 
The problem with such elections logistics, is that election results made public in one given district affect the voting behavior in other Districts. Also, it is widely considered that if the Administration were to intervene to fraud the elections in one way or another, it will be much easier to achieve the needed results if elections are held one District at a time over a number of different days, than throughout Lebanon in one single day.
 
Although one may not challenge the security rationale in the abstract, it is the undersigned’s opinion that another reason seems to be more commanding than security, and that is logistical preparedness of the Administration in terms of adequate numbers of ballot boxes, separators, administrative supervision ... etc.
 
The solution to this issue seems therefore simply a practical one, that is to make sure that elections are adequately prepared from a procurement and logistical point of view, so that the debate about the date of elections be limited, on a case by case basis, to whether or not the security reasons really mandate separate election days.
 
 
 
8.         THE ELECTORAL IDENTITY CARD:
 
While the Electoral Law mandates the use of the electoral identity card, it has yet to be introduced into electoral practice as it has systematically been suspended in each election. The existence and use of an electoral identity card is the object of often contradictory expectations, with some considering it a major improvement in the Lebanese electoral system, and others arguing that it may become an additional administrative hurdle or even an additional instrument of fraud.
 
According to the Electoral Law, the use of the election card is limited to that of a proof of identity and vote. The description and use of the election card is briefly spelled out by provisions which remain in force, unless they are suspended again in 1996: (i) the card must be distributed to electors prior to voting; (ii) it is a material condition that allows an individual to vote[8]; and (iii) one it is punched through, it provides evidence that a vote was cast.
 
One may consider at least two further uses for the electoral identity card:
 
          1.            It can streamline the election process by allowing voters, in applying for the cards early on, to forego several of the administrative steps which accompany the election process and which are time-consuming.
 
          2.            It can also provide a means to replace or complement electoral lists: election cards would potentially allow voters to vote in embassies abroad or closer to their place of actual residence (vs. the place of legal registration on electoral lists). This, however, would pose a variety of legal, political and administrative problems.
 
Irrespective of either use that can be made of the election card, three conditions must be imposed if the cards are used it guarantee that abuse is kept to a minimum:
 
          1.            The technical specifications of the card must be such that their forgery is very difficult or impossible. While this cannot curb abuse if there is a conscious decision by the authorities to favor certain candidates, it can at least insure that fraud is kept to a minimum if the elections are held in an acceptable political climate.This can be easily resolved, provided there are good intentions and appropriate funds[9].
 
          2.            There must be guarantees that additional cards will not be illegally distributed by political figures to their supporters to insure that they can vote repeatedly for them.
 
          3.            The election rules must insure that an appropriate process exists for the timely and widespread distribution of electoral cards to all voters without hindrance.
 
 
THE ADMINISTRATION AND SUPERVISION OF ELECTIONS
 
 
9.         NEUTRALITY OF THE EXECUTIVE
 
The Law, in a number of its provisions, (particularly related to the polling process on elections day), attempts at establishing systems that limit the influence of the executive in the electoral process. However these systems were always considered insufficient to curb a systematic trend experienced in past elections in varying degrees, of ingerence in and influencing of the process. This governmental ingerence was possible because the administrative preparation and supervision of elections is controlled by the ministry of Interior. This undue influence has been ranging from (i) administrative obstacles and lack of responsiveness, selectively put on voters and candidates not favored by the government, to the appointment of biased local police officers or presidents of polling stations, to (ii) direct fraud, by stuffing ballot boxes with pre-prepared ballots, or drawing forged minutes of counting ballots ... etc.
 
The following are a number of suggestions that may foster, to the maximum extent possible, the neutrality of the executive in the electoral process:
 
          1.            That the president of the polling station be selected as independently from the process as possible, following objective criteria (e.g. not from the electoral district or the religious majority of the polling station). His name should be known ahead of time to allow opposition following a process to be established.
 
          2.            The police officer in charge of an electoral district should not be appointed or changed at a date of at least two months prior to elections.
 
          3.            That an independent government be specially formed to oversee the election process, or at least, that an independent -- non candidate -- minister of the interior be appointed to oversee the elections.
 
          4.            On the longer term, it is recommended that the organization and administrative supervision of elections be entrusted to a special elections committee that is non-partisan in nature, providing the appropriate guarantees of neutrality[10].
 
 
 
10.       SUPERVISION AND MONITORING BY CANDIDATES AND CITIZEN
 
The monitoring and control of the electoral process is of prime importance, during all phases of the election process, and particularly during the voting per-se on election day. Furthermore, and given the controversial political climate which prevailed in 1992, a number of political figures and parties have demanded that the validity of future election be determined by independent monitors. Some have even made this independent monitoring a condition for their participating in the 1996 elections.
 
At present, the principle and guarantees for the supervision and monitoring of the voting process by candidates and citizen are provided for in the Electoral Law (art. 42 and 43). Thus, each polling station is to be run by a committee chaired by an appointee of the Muhafez along with a secretary, and four scrutineers appointed half by the chairman and the other half by the attending voters present at the opening of the center (acting as observers). Furthermore, any candidate is entitled to nominate “mobile observers”, appointed by the Muhafez or Caimmakam according to a quota system[11]; these observers must be voters from the electoral district. They benefit from a number of guarantees to insure that they carry on their rights and duties unhindered (i.e. their movement and inquiries cannot be hindered; they cannot be excluded from the voting center except when they commit a felony or when they cause trouble to the rule and order).
 
 
 
 
 
 
 
 
 
 
These monitoring tools and procedures to be exercised within the polling centers are extremely important, as the most serious frauds happen for lack of appropriate supervision[12]. The process allowed by the Law may be used to establish a more effective and efficient monitoring organization(s), whether local or international, that would act throughout Lebanon, be non-partisan and be headed by prominent and respected individuals for their integrity and independence. Furthermore, it is recommended to educate the supervisors more generally in the electoral law, and particularly, in the most efficient and effective way to counter the fraud methods. This could be achieved by an appropriate training and the editing of a booklet on electoral monitoring.
 
A few comments on international monitoring. It is the opinion of the author that no agreement or licensing is required to invite international monitoring organizations. The only limit to the action of such international group, is that supervisors allowed to enter the voting offices must be Lebanese voters of the concerned district, nominated by a candidate. This indeed is not incompatible with the international nature of the monitoring, which can be a joint-venture between a local and an international group, with appropriate guarantees for integrity and independence.
 
It may not be validly argued that international monitoring encroaches on Lebanese sovereignty and is demeaning to the Lebanese democracy. but on the contrary, if the elections were free and fair and the democratic process well respected, the monitoring process will lend a further element of legitimacy and respect to the process. If not, it would have served its very purpose, i.e. to act as a moral deterrent and a fact finding/collecting body that could be produced either in the judicial or political review processes.
 
 
 
11.       ROLE OF THE JUDICIARY AND THE CONSTITUTIONAL COURT:
 
Prior to the last constitutional amendments in 1991, the opposition to elections results were limited to the Parliament. The ineffectiveness of such appeal process led to the introduction of the Constitutional Court as the competent authority to rule on the oppositions to elections. This new role is putting an important challenge to the role of the judiciary in the election process, both on the structural and substantive points of views.
 
 
 
 
 
 
 
Structurally: The Constitutional Court still has to develop an effective and efficient legal and organizational structures to allow it to handle the large number of oppositions which are expected to be filed. Up until the drafting of this paper, the operational By-Laws and budget of the Constitutional Court have not been enacted yet. Indeed, the Court may rely on the good will and efforts of its members, however, this is certainly not enough. Therefore, it is very important to allow the Constitutional Court all the means that will allow it to exercise its duties and authorities as effectively and efficiently as possible.
 
Substantively: The legal basis for the opposition to the election results, or even to the activities related to the election process, are found in the Election Law and the Criminal Code. However, these provisions of the law are little known, and the confidence in courts relatively week. It is therefore recommended to educate citizens in their rights by reminding them on the crimes and violations related to elections[13], and incite them as well to test the courts, the Government and candidates, with suits filed on the basis of any violations of the law. Furthermore, it is unclear if the criminal violations of the law can be a basis for the annulment by the Constitutional Court of the results. It is my opinion that such violations, if committed or instigated by a candidate, or if their effect is to change the count of votes, should result in the annulment of the election of the concerned candidate.
 
 
 
 
 
 
 
 
MISCELLANEOUS
 
 
12.       ELECTORAL ADVERTISING:
 
The Electoral Law contains a number of provisions aiming at organizing the electoral advertising for candidates. However, these provisions are still insufficient to curb practices that would unduly affect the voting behavior of people. This is particularly true, given the very wide number of audio-visual media[14].
 
The last amendment to the Electoral Law in 1992 (art. 10) banned throughout the electoral campaign, any “political and electoral information and advertising broadcast by non-political written and audio-visual media”. The electoral campaign was identified as “the period between the call for elections until the final proclamation of results”. The said media are only allowed to deal with “political positions”.
 
Furthermore, the Electoral Law
 
 
 
13.       FINANCING OF CAMPAIGNS:
 
It is widely feared that the
 
 
 
14.       CANDIDACY FEES:
 
 
 


[1]  The applicable election Law was enacted on April 26, 1960 (the Electoral law) and partially amended by Law No. 154 dated July 30, 1992.
[2] The order of the issues follows the chapters as laid-out in the Electoral Law.
[3]We prefer the use of the word “non-residents” rather than “emigrants” that is more commonly used, because it puts a better emphasis on the element of physical absence from Lebanon of the citizens, rather than on the possibility for an emigrant to have lost his/her citizenship, as the latter are realistically excluded from the debate.
 
[4]  Recently naturalized persons have the right to vote and are not subjected to similar waiting periods of 10 years as candidates.
[5]  This reached absurd proportions in 1992, when one of Lebanon’s historic 19th century figures, Yusuf Bey Karam, was discovered to still be on an electoral list in the North.
[6]  From 7 a.m. to 5 p.m. (art. 41).
[7]  Art. 7
[8] The Election Identity card should include the following information: the family record number, the name and surname, the father’s name, date of birth, the religious community. It must include a picture; however, the latter is facultative for women, provided they use the election ID together with their regular identity card.
 
[9]  There were news reports that electoral cards were ordered and printed prior to the 1992. The minister of interior later stated that they will be first tested and used in the next municipal elections.
[10]  It was suggested to entrust the role of administration of elections to the Supreme Judicial Council or even to the Constitutional Court. The undersigned supports a role given to such judicial authorities, to appoint the judges chairing the voters list review committees and to call for elections (whether parliamentary or municipal) in the cases or default of the competent administration. However, it is better fit to maintain the division of powers, between the authority entrusted with the duty to administer elections and that entrusted with the duty of passing judgment relating to their legality.
[11]  One mobile supervisor for each two electoral centers in villages, and one for each five electoral centers in cities (art. 42).
 
[12]  For instance: fake voting ballots may be dumped in the ballot boxes; names written on the ballots may be willfully misread; the minutes of the counting may be forged...
[13]  The Criminal Code includes a full chapter (No. II) on crimes related to elections titled “violations of civic rights and duties”:
 Art. 329 provides for imprisonment for all types of obstacles put on the free exercise of civic rights (e.g. elections) committed by acts of coercion, physical or moral violence;
Art 330 provides for stronger penalties if the violations subject of Art 329 are committed within an organized plan;
Art. 331 provides for imprisonment for all attempts to influence the vote of any citizen with the purpose of affecting election results, through: (i) making the citizen fear damages to his person, his family, his professional situation or his belongings, (ii) offers, bribes or promises, (iii) promise of administrative favors made to a juristic person or a group of citizens; the same penalties are applied to those that would have accepted or solicited such bribes, donations or promises;
Art. 332 provides for the loss of civic rights to any public servant, agent or employee of the Government, that would have used his authority to influence the vote of a citizen.
Art. 333 provides for imprisonment for any person that would have fraudulently modified or attempted to modify the results of public elections; the penalties become stronger if the guilty person was entrusted with the responsibility of receiving, guard or count the votes, or to effect any other operation related to public elections.
Art. 334 provides that the annulment of elections will have no effect on the violations that were committed during or at the occasion of elections.
Art. 66 of Elections Law provides for a fine (L.L. 500,000 to 1,000,000) for every violation to any provision of the Election Law, not covered by the Criminal Code.
In all the above instances of violations of the Criminal Code, the candidates and any person found by a court guilty, is banned from any right to stand as a candidate for four years (Art. 68 of the Electoral Law)..
 
[14]  The audio-visual media is presently the subject of regulations that aim at limiting their number and organizing their activities. These regulations were very strongly criticized, because it is feared that they hide an intention to limit the freedom of the press through allocating a limited number of televisions and radios among identified politicians and political groups.



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