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«Dr Magnus Ohman, IFES Political Finance Advisor The analysis was conducted by Magnus Ohman as the result of an IFES and Carter Center initiative, and ...»

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The Elections Law also contains a threshold for the expenditure of candidates (including spending done in favour of the candidate as described above). To a flat amount of 150,000,000 million Lebanese pounds (USD 100,000) is added an amount per voter decided for each election by the Council of Minister on the suggestion of the Minister of Interior and Municipalities). For the 2009 elections it was the decided that candidates can spend 4,000 Lebanese pounds (around USD 2.65) per voter, above the flat amount.6 There is no explicit ban against the use of state resources in the elections. However, public media is banned from favouring any candidate at the expense of others (Elections Law Article 67).

Candidates are also not allowed to disburse more than 50% of its advertising spending to any one media outlet (Article 66(8)).

Auditing

The Election law states that during his/her nomination, the candidate should submit a notarised letter declaring name of the candidate’s financial auditor (Article 55(6)). It is however unclear if this is a requirement for a person to be nominated, as the document is not included in the required documents for nomination listed in Article 47(2).

It is not clear what the task of the candidate’s auditor is, as it is not stated in the Act that the report submitted by each candidate needs to be audited before submission. Information received from the SCEC indicates that the candidate’s auditor is intended to have an informal role in advising the candidate on his/her financial activities and submission of financial statements. The Elections Law (Article 19(1)) and the Rules of procedure of the SCEC (Article 16) state that the Commission will audit the financial statements received by candidates, but gives no details as to how this will be done.

Reporting

To ensure compliance with the Elections Law, all candidates must open an account in an operating bank in Lebanon, and information about this account should submitted together with the candidate nomination documents (cf Articles 47(2) and 55(1)). All income and expenses must go through this account, and transactions exceeding 1 million LBP must be made with a cheque.

Candidates need not make any financial reports to the SCEC before the elections, although a special committee formed by the Commission is mandated to request information and documents, and to inspect the candidate’s bank account.

After the election, all candidates must submit a report to the SCEC including information about both the income and the expenditure related to the candidate during the reporting period. The reporting period is noted as the time from the candidate’s nomination (between 2 March and 7 April) and polling day. This period is referred to as the “electoral campaign” in the chapter on “Electoral Funding and Spending”, but it is important to note that the notion of “electoral campaign” is not further defined in the Elections Law. Among other things, there is no ban on

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campaigning before the start of this period, only a statement that no campaigning must take place on polling day itself (Article 51). However, the SCEC declared in a statement dated 25 March 2009 that posters and other materials produced and paid before the submission of the candidate’s nomination is included in the definition of campaign expenses.

The submitted report should include detailed information about each transaction, and also supporting documents such as receipts and disbursement notes, along with an “exhaustive bank statement” (Article 61(2)).

While these reports will allow the SCEC to monitor the political parties’ adherence to the Elections Law, the Commission is itself not obligated to make the submitted information, nor even summaries thereof, available to the Lebanese public. Information received unofficially from the SCEC indicates that the report that they will provide to Parliament will only include information on which elected deputies that did not submit reports to the Commission.

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Apart from this, the SCEC also received additional reports which, while they directly relate to the media part of the Commission’s work, allowed the SCEC to do some direct cross-checking of the information received by candidates. Owners of billboards shall deposit copies of contracts with candidates with the SCEC, and media outlets first had to report their price list for advertising to the SCEC, and then report on a weekly basis on its broadcasted advertisements.7

Sanctions and enforcement

The Elections Law calls for sanctions in case anyone “intentionally” breaches the provisions contained in the chapter on Electoral Funding and Spending (Article 62(1)).8 Sanctions include fines of between 50 and 100 million Lebanese pounds (around USD 33 to 67 thousand), imprisonment of six months or both.

The Elections Law further stipulates that in the case of legal appeals against any successful candidate relating to the political finance regulations, the SCEC report on the candidate in question will be submitted to the Constitutional Council to assist the Council in its decision (Article 62(2)). Such processes do otherwise not concern the SCEC.

In practice, there are significant question marks regarding the whether these sanctions against breaches of the political finance regulations can be enforced (see further below).





See further the untitled declaration reported in al Nashra newspaper regarding the use of billboards in the election campaign (24 February 2009) and the Elections Law (Article 66).

As the Chapter almost exclusively relates to the obligations of candidates, it is difficult to imagine the sanctions mentioned here being applied in relation to anyone other than a candidate.

The Political Finance Framework in Lebanon Potential difficulties with effectively enforcing the current regulatory system Disclosing information about campaign finance to the Lebanese electorate The most important concern is that the law does not oblige the SCEC to make reports received from candidates public, and the Commission has indicated that it will not do so. This will make it difficult or impossible for outsiders to monitor the work of the SCEC in this regard, including their impartiality in seeking sanctions for non-compliers.9 Equally important, it makes it impossible for civil society and the media to work to verify the accuracy of submitted reports.

One way for civil society groups and journalists to gain access to campaign finance information could be through Article 55, which states that all candidates must open a specific bank account through which the campaign funds will flow, and that these accounts will not be subject to bank secrecy. The law specifically mentions that the SCEC will have access to these accounts (Article 60(2)), but does not state whether others will have the same right. Information received from the SCEC indicates that will not be the case, but other interpretations of the law are possible.

Making access to the information public would be an important step forward in ensuring transparency in Lebanese election campaigns.

Information available to candidates on reporting requirements Campaign finance disclosure was first introduced through the 2008 Elections Law, meaning that no candidate will have experience in complying with such regulation. The difficulties that will follow from this will be compounded by two factors.

The first is that 30 days is not an especially long amount of time to compile an exhaustive report, especially as the statements need to be accompanied by detailed supporting documentation.

While candidates with significant resources at hand and/or the backing of a major political party will be able to access professional assistance to produce the required reports, less wealthy independent candidates may find it significantly more difficult to comply.

The second is that Article 62(1) makes non-compliance an offense punishable by a fine or imprisonment or both. While the threat of such sanctions can function as an effective tool in getting candidates to comply, it can make it more difficult for the SCEC to create positive interaction with candidates who may be willing to comply but who face challenges in doing so.

Of great importance will be the interpretation of the term “intentionally” in the text “whoever intentionally breaches any of the provisions of this chapter shall be sentenced to…” (62(1)). If candidates can escape sanction by claiming that any breach of the regulation was not intentional, the paragraph may be of limited use. If on the other hand a more strict interpretation is adopted, candidates who in spite of their best intentions failed to submit reports may be severely penalised.

In relation to this, stakeholder information and trainings could be of crucial importance for the effectiveness of the disclosure system. Though the SCEC provided some information through the Ministry, it only distributed the manual two weeks before the elections, and did not provide training. This is an area where there is room for future improvements in elections to come.

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The Elections Law (Article 19(1)) and the Rules of procedure of the SCEC (Article 16) state that the Commission will audit the received reports. However, with 587 registered candidates, the Commission may find it prohibitively time-consuming to audit all reports. If a selection is to be done, this should follow previously agreed procedures (for example a random selection or based on received complaints).

Expenditure by others than the candidate

A peculiarity of the Lebanese system is that candidates should report not only on expenditure by themselves, but also those “paid in their favour or with their express or tacit consent by other persons” (Elections Law Article 58). The Commission issued a statement dated 7 March 2009 specifying the interpretation of this Article (even though the Article is not referred to directly, and the statement only relates to expenses relating to media, thereby combining the two main areas of the SCEC work, as described in Article 19 of the Elections Law).

The statement clarifies that any advertisement including the image, symbol or name of the candidate; the list or political party to which the candidate belongs; the president or party leader(s) of the list or political party to which the candidate belongs; or a coalition of political parties related to the candidate, shall be counted as a campaign expense by the candidate. While it is not specified exactly, this presumably means that the total cost of advertisements in favour of a political party or list shall be divided equally between the related candidates. Two SCEC statements both dated 7 April 2009 further added expenses for rallies, renting campaign offices and the transport of voters from within and without Lebanon to the list.

This statement is in line with the Elections Law, as each candidate could be assumed to have given at least tacit consent to its political party or list to campaign on her or his behalf. It is also an innovative solution to the problem that campaign expenditure need not be channelled through the candidate or the politically party, which in most cases means that part of the funds used in a campaign are never reported. In Lebanon, the focus has shifted from who spends money on a campaign to who benefits from such expenditure.

While this is a very interesting notion, it is hard to see how it could work in practice. One difficulty lies in how candidates will be able to access information as to the value of expenses which they were not themselves responsible for. As the reports submitted by candidates should also include supporting documentation, copies of receipts for advertising expenses would presumably need to be distributed to the candidates for submission. This shows the weakness of not having political parties report on their campaign finances separately, as tends to be the norm.

It becomes even more complicated when it is considered that advertising might be paid by others than the candidate or the party or list to which the candidate belong. Such spending by third parties is normally not included in financial reporting requirements, although in the US system the Federal Election Commission monitors the spending by so called Political Action Committees.10 As the statement by the SCEC thereby requires that the cost of advertisements should be reported by candidates, regardless of who incurred the expense, it is difficult to conceive how this would function in practice, especially if tested through the legal system. There is for example no clear definition on electoral coalitions in Lebanon, nor is it always possible to establish which candidate belongs to which coalition without applying political interpretations, and such interpretation seldom hold in a Court of Law.

See further http://www.fec.gov/ans/answers_pac.shtml The Political Finance Framework in Lebanon It seems that the SCEC has adopted the view that the notion of “tacit consent” will be interpreted such that candidates are assumed to consent to all expenditure against which they do not lodge a complaint. However, the fact that candidates would need to lodge complaints against campaigning in their favour in case they do not wish or are not able to report on it seems an undue burden on candidates. In either case, a procedure of this kind would leave unresolved any case of expenditure of which the candidate is not aware.

Furthermore, given this situation, it becomes neigh on impossible for candidates to calculate their own expenditure in order not to exceed the spending ceiling established by the Minister of the Interior and Municipalities. It even becomes possible for political rivals to force each other to break the law by campaigning in their favour. Also note that if candidates representing a political party withdraw their nomination, the cost of campaigning efforts by the political party in question will have to be divided over a smaller number of candidates, thereby increasing the expense they have to report in a manner impossible to foresee in advance.

Avenues for enforcement and sanctions

There seems to be significant disagreement on how the provision to sentence non-complying candidates to fines or imprisonment can actually be enforced (Elections Law Article 62(1)).



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