Election Law in Syria: The Architecture of Unfair Representation

2014-05-22    |   

Election Law in Syria: The Architecture of Unfair Representation

On March 17, 2014, the General Election Law in Syria (No. 5) was approved by parliament.


Before delving into its provisions in detail, it should be stressed that no electoral law could have any legal and effective value on the ground unless the role and the powers of Syria’s parliament, the People’s Assembly, are also reconsidered. This is true regardless of the contents of the law or the guarantees that it offers. Stripped of its role and of its powers, the People’s Assembly has long been dominated by the executive branch of government, and in particular, the president. The former should be allowed to effectively and independently exercise its legislative and supervisory role.  


No electoral law could possibly achieve this end. Instead, one should turn to the constitution, the supreme and most exalted law in any country. As important as an electoral law might be, it merely outlines the mechanism through which the Syrian people should elect candidates to represent them in parliament. However, the constitution alone determines the consequences of such representation by clearly stating the functions and powers of the People’s Assembly.


Regarding candidacy for the presidency, Article 30, section E, of the new General Election Law decreed that candidates must have “resided in the Syrian Arab Republic, permanently and continuously, for no less than ten years prior to applying for candidacy”. This strange provision aims to exclude members of the opposition to the Syrian regime from the electoral process, as most, if not all of them, reside abroad. It in fact prevents a great many Syrians from running for president, which contradicts the 2012 Constitution itself. Indeed, Article 33 of the latter states that “citizenship is a fundamental principle which encompasses rights and duties enjoyed by every citizen and exercised according to the law. Citizens are equal in rights and duties without discrimination among them on grounds of sex, origin, language, religion or creed. The state shall guarantee the principle of equal opportunities among citizens”.


Furthermore, Article 85, section 3, of the Syrian Constitution stipulates that candidates for the presidency must obtain a written endorsement of at least 35 of the People’s Assembly’s 250 members. This is a crippling condition within the context of the current Assembly, whose every member is loyal to the ruling regime. Indeed, it would be impossible for a candidate to obtain the support of 35 Assembly members without the regime’s consent.


Article 34 of the Election Law also gives the Supreme Constitutional Court (SCC) the right to supervise, challenge and announce the results of presidential elections. It is common knowledge that the president, as per Article 141 of the Constitution, nominates and appoints the members of this court, who are then sworn in before him. Bound to the president, SCC members are thus deprived of their independence and objectivity.


Regarding the elections of the People’s Assembly and that of local councils, Article 8, section A, of the new law calls for the formation of a ‘Higher Judicial Committee for Elections’ based in Damascus. This Committee is entrusted with administering elections and referendums by fully supervising the elections of the People’s Assembly and local administrative councils, and taking all the necessary measures to ensure their free exercise, soundness and fairness. All the while, enjoying complete independence in its work.


There are no guarantees to ensure the Committee is indeed independent. In fact, when one realizes that the judicial branch of government is headed by the president -who guarantees its independence- and that most judges are members of the Baath Party, it seems that this Committee is far from impartial. Indeed, as per Article 65 of the statutory laws of the judiciary, the president heads the High Judicial Council, which controls judicial appointments, promotions and dismissals.


Article 15 of the Election Law grants regime-appointed [district] governors the power to “form electoral committees to manage polling stations”. These committees consist of three members for each station, selected from among civil servants. In the absence of impartial supervision, this allows the regime to control the electoral process and its results.


Article 20 of the law preserves the old districting, with each Syrian governorate representing a single electoral district (with the exception of Aleppo, which was divided into two districts). Such districting would exhaust some of the candidates who might fail to cover the costs of electoral publicity in the entire governorate and its countryside. It thus favors the wealthy and the regime’s electoral lists. It would have been preferable here, as a first step, to opt for a mixed system: 50 percent proportional and 50 percent smaller districts.


Article 22 of the new law also preserves the division of electoral districts into two sectors: 50 percent for workers and farmers, and 50 percent for the remainder of the population. This kind of division is too malleable and easy to circumvent. Candidates need only prove that they own a piece of agricultural land or a herd of sheep in order to be registered in the workers and farmers category.


Article 39 of the law stipulates that candidates to the People’s Assembly or local councils must: “(E) not be convicted of a felony or of a misdemeanor considered disreputable or breaching public trust, by virtue of a final and unappealable court ruling, unless legally exonerated. Misdemeanors considered disreputable or breaching public trust are determined by the Minister of Justice”. Meanwhile, candidates to the presidency must, according to Article 30, section C, “enjoy their full civil and political rights and not be convicted of a disreputable crime, even if later exonerated”. The justice minister has so far not specified which misdemeanors are considered disreputable or as breaching public trust.


Article 50, section C, of the law sets a broad and unclear condition regarding electoral publicity: “electoral publicity must not include anything contrary to public order and decency”. Vague and undefined, the expression “contrary to public order and decency” could be used against any given candidate, as deemed appropriate by the judiciary, which follows the executive, i.e., the regime in Syria.


Article 53 states that “it is forbidden in any way, shape or form to dedicate or make use of public functions or public funds as part of a candidate’s electoral campaign. This does not include the locations placed at the disposal of candidates and political parties by the government and local administrations”. This is an important text, but will it be implemented?


Article 59, section D, states that “voters are entitled to transfer their electoral affiliation from one district to another within the same governorate, or from one governorate to another. Any piece of identification, membership card or document issued by the government, a popular organization, labor union or professional syndicate can be used for this transfer. The document must bear proof of residency in the district of transfer, and should be presented to the polling station committee”. In the absence of an automated election system, this article allows for electoral fraud by repeated voting.


Article 96 of the law states that a referendum is considered successful “if approved by the absolute majority of all votes collected”. This means that a referendum can be considered successful even with a participation rate of less than 5 percent.


Finally, Article 123 allows the Interior Ministry and the Ministry of Local Administration to delegate a number of their own employees to work under the supervision of electoral committees throughout the elections period. This could allow such employees to interfere in the electoral process in favor of the ruling party.


Free and fair elections that would give the state apparatus a democratic cachet should allow for all citizens to take part in governing and managing their country’s affairs. Yet in order to ensure free and fair elections at every level, citizens must first enjoy a number of rights.


Chief among these is the right to freedom of expression and opinion, followed by the right to assembly and to peaceful protest. This would allow for communication and interaction with people, and in turn enable the latter to find out about the opinions and programs of competing political forces. There is also the right to form political parties, political associations, labor unions and professional syndicates. Guarantees of a free media and independent press, through which citizens could voice their opinions and have access to news without any form of tutelage, are equally important.


Other required rights include the right to be free from discrimination, as well as the right to a secret ballot. Indeed, voters should be protected against direct or indirect pressure to reveal their opinion about one candidate or another. Moreover, every citizen’s vote must be equally weighted. This would require forming and allocating electoral districts on the basis of the number of inhabitants in a fair and just way, so as to reflect the will of voters as accurately and as realistically as possible.


Despite the pivotal importance of the above-mentioned rights, they are not sufficient for holding free and fair elections. The latter would also require an honest and impartial body to be able to supervise these elections in line with the highest standards of impartiality. This means the electoral process should be conducted in accordance with international standards, while accounting for local laws.


The only party able to live up to such a difficult task is a truly independent judiciary. This shows how important it is for the judiciary to be impartial, competent, fair, independent and free from any kind of influence. Ensuring the independence of the judiciary represents a true guarantee for all citizens. The role of the judiciary is not restricted to dealing with violations that might occur during the elections. The judiciary’s independence is a safeguard preserving the state’s own political, economic, social and cultural integrity. It also represents the true guarantee of strong internal cohesion in any country and society, by ensuring people’s rights and freedoms. Indeed, no individual’s freedom may be encroached upon, except and only in accordance with the statutes of public law as well as the rulings of the state judiciary and the procedures it has adopted.


In short, the current judicial structure needs to change. Political prisoners should be released and the whole issue of political incarceration put behind us permanently. Laws should be enacted that would allow for freedom of political activity, as well as for establishing political parties and a truly free and independent press in a climate of dialogue and acceptance of the other. Such laws should prevent executive and security services from encroaching upon the powers of the legislative and judicial branches of government. They should also lead to strengthening the relationship among the latter’s three branches in a healthy manner.


The election law should be amended in such a way so as to restore the principle of a free, direct and secret ballot. The people’s freedom to choose their preferred candidate for the presidency should particularly be stressed, as should the diversity of such candidates. Indeed, it makes no sense for candidacy for the presidency to be restricted to a specific religion and a specific political party – the latter imposing a single candidate from among its members to be “chosen” by the people in a public referendum. Moreover, elections at different levels should all be held under the supervision of an impartial, independent, competent and trusted party.


What is needed today is an advanced legal apparatus that would consecrate the principle of citizenship – i.e., the informed and active participation of all individuals in building the social, political and cultural framework of the state – without any kind of tutelage and regardless of religion, ethnic background, gender or political affiliation.

This article is an edited translation from Arabic.

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