For nine years, the Lebanese did not exercise their right to vote. But on 6 May 2018, extensions of the previous parliament came to an end as citizens elected a new parliament. The electoral process was run according to Law 44 issued on 17 June 2017. This law included a number of reforms, most notably the establishment of an independent standing commission to monitor elections known as the Electoral Supervisory Commission. This Commission was granted oversight in two areas essential to guaranteeing equality between candidates. The first is media, advertising, and electoral campaign publicity. The second is electoral spending. However the Commission was unable to exercise its authority fully due to a number of factors – principally, political authoritarian practices and other practices that had been established during and in the wake of decades of war. Given the circumstances, the Commission’s role focused in particular on the aspects of its mandate related to media, advertising, and campaign publicity. Accordingly, the Commission cautioned a number of media institutions concerning what it deemed to be violations of the law. It also referred some of these institutions to the Publications Court and Public Prosecution.
These referrals stirred resentment among certain media outlets, some of which earn large profits from elections. In an attempt to stave off their impacts, representatives of these outlets approached two ministers: the Minister of Information, Melhem Riachy, and the Minister of Justice, Salim Jreissati. Their meeting with Riachy took place in June 2018. Afterwards a statement was issued in which meeting attendees stated: “The conduct of the Electoral Supervisory Commission and its attempts to constrain the Lebanese media did not achieve its goal, and constitutes a precedent that the attendees are keen not to repeat.” Following this, representatives of the media met with Jreissati in August 2018. Afterwards Jreissati proposed a number of solutions as alternatives to the judiciary, which he referred to as “the process.”
The first suggestion in Jreissati’s statement was to “hold a joint meeting with the president of the Electoral Supervisory Commission, the commission itself, representatives of the media, the president of the National Media Council and [Press Syndicate] heads in order to arrive at a solution to this issue through conciliation. Nothing will change without such a solution, even on issues that are currently ongoing.” The second practical solution he proposed was “arbitration, to obviate the need for prosecution, meaning that the minister of justice shall rule on the matters or subjects being prosecuted, and provide a judgement within a reasonable period of time.” Following this, Jreissati met with the president of the Electoral Supervisory Commission, Judge Nadim Abdel-Malek, on 7 August 2018. Jreissati emerged with a brief statement of a political nature: “There is no restriction of freedoms, especially under President Aoun.” The statement denounced the Commission’s adherence to the steps it had taken as well as its rejection of the minister’s proposals. It appears, then, that the Electoral Supervisory Commission expressed its commitment to the principles governing its mandate, and blocked Jreissati’s initiative.
From this it has become clear that the two ministers are complying with demands from the media for an implicit alliance between the ruling powers and certain media outlets. At the same time it is apparent that there is a political effort underway to thwart the most important part of the Commission’s work. Practically speaking, this could effectively eliminate provisions (viewed as reformist) of the election law, which aim to enshrine equality between candidates – and thereby guarantee democratic elections. This push-and-pull sets freedom of expression and democracy against one another. As a result, we must look beyond a perspective that automatically demonizes any violation of media freedoms, and towards a rational way of thinking that allows certain restrictions only when they are required to uphold freedom and democracy.
Which Media Violations are Forwarded to the Courts?
The Commission referred 45 violations to the Court of Publications, according to a statement that its president Nadim Abdel-Malek made to The Legal Agenda. The referrals were distributed among “Courts of Publication operating in Beirut, Mount Lebanon, and the Bekaa.” He added that “the Commission also referred 15 violations to the appropriate Public Prosecutor’s Office at the Appeals Court.” Abdel-Malek also clarified that throughout the election period there was a monitoring room cooperating with the Commission. Participating in the monitoring process were “28 individuals, working around the clock, filing reports of violations and forwarding them to the Commission, which met to study them, then determined which should be referred to the Court of Publications, or to the Public Prosecutor in cases of criminal violations.”
Although Abdel-Malek would not relate the details of the referrals, on the basis that he considered that “information subject to secrecy,” he did disclose the three categories of referrals that were made:
Media outlets that did not state that an advertisement had been paid for and who had paid for it.
Instances of hate speech, defamatory and derogatory speech, and incitement to sectarian conflict, which were referred to the appropriate public prosecutor.
Violations connected to opinion polls conducted in contravention of the law. In particular this included cases in which nobody applied to the Commission for permission to run an opinion poll, as well as cases in which a poll was not presented to the Commission before it was published –– given that polls declare prospective winners and losers in advance.
Abdel-Malek says that “the Commission’s president and members guarantee freedom of opinion and expression, but within the limits of the law.” On this basis, the Commission carried out its duties without resorting to cut-throat policies. “If we compiled all of the violations that took place, especially during the pre-election silence period, they would have numbered in the dozens, and today there would be over 200 referrals to the judiciary.” According to Abdel-Malek the Commission “considered the hard realities of the media, and did not enforce [the law] based on sectarian quotas. We only referred those whose violations were extreme.”
According to Abdel-Malek, “the media did not cooperate with the Commission, despite the fact that we made numerous overtures to them. We invited members of the media to a press conference, where we distributed the electoral law and all of the Commission’s statements to them, and discussed the need for an effective partnership between us.” The Commission also “sent about one hundred warnings to media outlets that were committing violations, or that we had scrutinized for violations. After this we forwarded the individuals or media outlets that needed to be referred to the Court of Publications, impartially and with transparency.”
Do the Judicial Referrals Infringe Upon Freedom of Expression?
Following a meeting between representatives of the media and the minister of information, a statement was issued announcing that both sides deemed “the conduct of the Electoral Supervisory Commission” to entail “constraining the Lebanese media.” The statement added that “referring the media to the Court of Publications in a haphazard manner infringes upon Lebanon’s vanguard role in safeguarding freedoms in the region.” In a subsequent statement Riachy set forth the reasons for the Ministry of Information’s intervention in the issue of the referrals. According to the statement, the most important reason was that the Ministry is a “spearhead” in defending freedom of the media. Along the same lines, and also under the banner of media freedoms, the minister of justice proposed himself as a go-between, acting as a conciliator or arbitrator. But in this situation, are there considerations beyond freedom of expression to account for? We asked a number of associations specializing in this field our questions on this matter.
In response, the Lebanese Association for Democratic Elections (LADE) expressed its reservations: “the lack of equality between candidates within the media is not a marginal matter. It does affect electoral campaigns and it could affect electoral outcomes as well. For this reason it should not be tolerated under any pretext.” For his part, lawyer Tony Mikhael of the Maharat Foundation shares Abdel-Malek’s opinion. Mikhael says that “the Commission observed violations and referred media outlets to the judiciary. It is up to these outlets to defend themselves before the judiciary, and lastly it is up to the the judiciary to rule.” In the same vein the media spokesperson at the SKeyes Center for Media and Cultural Freedom Jad Shahrour states, “so long as the grievances filed by the Electoral Supervisory Commission do in fact involve violations, it follows that it is impossible to say that this is a matter of infringement upon freedom of expression.”
Consequently, it appears that organizations concerned with defending media freedoms do not perceive the Commission’s work as infringing upon these freedoms, in principle. At the same time, they do harbor fears about where this path might lead, specifically in the Lebanese context. Shahrour points out that “most of the media outlets in Lebanon are [either] owned by or tied to individuals who have run for elections.” He adds, “the prosecution of these media outlets is taking place today because the outlets effectively gave air time to their owners (that is, influential candidates) without taking into account the fact that in this situation, the media outlet is following orders.”
Is Resorting to the Judiciary Problematic?
The second issue we see raised by the ministers, particularly the Minister of Justice, Jreissati, is that tasking the judiciary with this matter is not an effective solution. According to their position, doing so is problematic and therefore other solutions must be found, such as conciliation or arbitration. But is it truly problematic? We posed this question to the president of the Electoral Supervisory Commission as well as representatives of associations who work in the field of freedom of expression and election monitoring.
Abdel-Malek responded to our question in the negative. On this matter, he clarified that his meeting with Jreissati was on the premise that “the Commission forwarded grievances to the judiciary, and we have confidence in the judiciary and respect its rulings.” He added that when arbitration was suggested, he responded, “how can arbitration be a sound solution if there are not two sides to begin with? How can it be the correct solution in criminal cases? Here in Lebanon the law does not permit arbitration in criminal cases.” As for conciliation, Abdel-Malek stressed that “the Commission is not a side or a party in a conflict that needs to be reconciled; therefore, what remains now is to wait for the judiciary to rule.” What Abdel-Malek meant was that “the Commission exercised its authority in accordance with the law. If there are breaches within the legal text, then that is what should be discussed, not the Commission’s performance according to that text.”
Rights organizations supported the Commission’s position on this matter. Commenting on Jreissati’s initiative, Shahrour remarked that “freedom of expression cannot be protected through conciliation. Meaning, it is not possible to protect it by violating the law.” Yara Nassar of LADE and Tony Mikhael agreed. Mikhael stated, “neither the minister of justice nor the minister of information have the authority to compromise when it comes to a public right, and on matters related to democratic elections and their guarantees, including the media. No such issue can be resolved through a settlement.” He added that “according to the law, the Commission is permanent, and therefore we must review what has happened and put a plan into place for next time that includes a plan for dealing with the media.” From her perspective Nassar affirmed that “LADE opposes any interference with the judiciary; in light of these statements, there is a serious concern about pressure being placed upon the judiciary.” This is especially the case given that previously “pressure was put on the Commission to retract the referrals.”
To return to Jreissati’s statement, the first aspect worth noting is his characterization of the judiciary as an ineffective solution, along with his suggestion that it should be replaced with other more practical solutions (conciliation and arbitration). Were this advice given from a lawyer to his client in a given case, this position might not be subject to criticism. But it was issued by the minister of justice, and regarding a matter that concerns public order and the soundness of citizens’ representation. It amounts to calling to circumvent the law and the system that is currently in place, and replacing them with a policy of impunity. The minister’s transgression is at its most extreme when he suggests himself as an alternative arbiter to the judiciary. But that is an issue that should be addressed in its own right.
Keywords: Electoral Reform, LADE, Lebanon, Salim Jreissati
 “Riachy meets with representatives from the media: We are committed to full freedom of expression according to one standard: respect for differences and refraining from resorting to defamation and slander.” Al-Wikala al-Wataniyya, Thursday 26 July 2018.