«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 ...»
Information received from the SCEC indicates that they are mandated to take such matter to the regular court system. However, other knowledgeable persons have expressed doubt that this interpretation is legally valid, and that this subsection may prove without effect. On August 25, the SCEC submitted to the Public Prosecutor the list of names of those Parliamentary candidates who had not submitted their financial report. The actions taken by the Public Prosecutor will be of the outmost importance for the future of political finance oversight in Lebanon.
In addition to this, it is unclear whether the immunity provided elected Members of Parliament can be lifted to allow such sanctions to be provided. If not, breaching the political finance regulations may prove unproblematic as long as the candidate is elected.11 This issue is not likely to be tested in relation to these elections, as all successful candidates submitted their financial reports.
The issue is further complicated by the fact that it is unclear if breaches of the articles on political finance can be grounds for appeals (Elections Law Article 62(2)). Such appeals can be made by losing candidates against the election of a candidate, in accordance with the law on the establishment of the Constitutional Council (Chapter four). However, and importantly, there is no indication in the Elections Law that breaching Chapter five of this law can invalidate a candidate’s election. It seems that the current possibilities for sanctioning breaches will not become clear unless one or several cases are brought to the legal system.
The ban on contributions to charities, sports clubs etc.
The ban on political parties and candidates to provide funds to individuals, charities, sports clubs etc is an interesting approach, and may have beneficial effects. A risk with a ban of this kind is however that it leads to candidates making such contributions secretly, thereby reducing transparency without enhancing equality.
Also, contributions to organisations “owned or run” by a candidate or a political party for at least three years are excluded from this rule. In practice, this means that older and more established
political parties that have run such organisations for a longer period are not affected, whereas new, smaller political parties, are banned from such activities. This risks skewing electoral competition in a manner hardly conducive to a level playing field.
Recommendations The following recommendations are made to further improve the political finance regulatory framework in future elections in Lebanon. References have here as applicable been made to international documents for guidance purposes.
1. The information belongs to the Lebanese public The UN Convention Against Corruption states that “Each State Party shall also consider taking appropriate legislative and administrative measures, consistent with the objectives of this Convention and in accordance with the fundamental principles of its domestic law, to enhance transparency in the funding of candidatures for elected public office and, where applicable, the funding of political parties“. The issue of transaparency needs to be discussed more thoroughly, and as an important step, the SCEC should make received reports public. While arguments have been presented that easing the bank secrecy in Lebanon may undermine the work of the country’s banking sector, the electoral campaign accounts are a very specific type of bank accounts for which the secrecy has been lifted through law. Publicising the information received will allow the Lebanese electorate to make judgements as to who they should support in future elections. In addition, the current veil of secrecy is likely to encourage unhelpful speculation as to the financial dealings of candidates and political parties, and may also weaken public confidence in the SCEC and potentially in the electoral process as a whole.12 Some guidance can be found in the Venice Commission13 Guidelines on the Financing of Political Parties, which states that “The transparency of electoral expenses should be achieved through the publication of campaign accounts” (Article 12). See also the Council of Europe, Committee of Ministers Recommendation (2003)4, which has recommended that “independent monitoring should include supervision over the accounts of political parties and the expenses involved in election campaigns as well as their presentation and publication." (Article 14b).
Overall, there is need to review the secrecy surrounding political finance and its regulation in Lebanon. Without transparency, any effort to control abuse of financial resources in relation to elections is unlikely to be successful.
2. The rules regarding political finance in Lebanon need to be clarified While some aspects of political finance are regulated in significant detail, substantial gaps exist in other areas. The notion of candidates being obligated to report on expenses that they did not approve and may not be aware of is such an area, and another is the role of the candidate auditors. In addition, article 59 of the electoral law should ban monetary contributions to individuals during the campaign period, even if such contributions have been ongoing for more than three years. While ongoing contributions to charities and sport clubs that have lasted for more than three years can be excluded from the spending limits, such contributions should be While reports are also not made public in the French system which has inspired the Lebanese, it should be noted that the French system has subsequently been criticised for its lack of transparency. See for example Austin, Reginald & Tjärnström, Maja Ibid.
The European Commission for Democracy through Law, better known as the Venice Commission, is the Council of Europe's advisory body on constitutional matters. See further at http://www.venice.coe.int/site/main/Presentation_E.asp The Political Finance Framework in Lebanon included in the financial reports submitted by candidates to avoid a potentially significant loophole in the efforts to track campaign funding.
Future election laws, or revisions of the current law, should aim to fill these gaps. The lack of clarity makes it difficult for committed candidates to comply with the reporting requirements, while providing those unwilling to disclose their financial information with opportunities to avoid doing so.
3. The SCEC must be given the capacity to carry out its mandate
The information received indicates that the SCEC does not have the resources available to effectively monitor the finances of candidates during the election campaign, and may not have the capacity to effectively review the reports due to be submitted by candidates after the Parliamentary elections. The Commission was also created too late to be able to effectively reach out to stakeholders. For future elections, it is recommended that the institution set to monitor campaign finance starts its work earlier and is endowed with additional resources. Also, future electoral legislation should clarify the mandate of the SCEC in the oversight of campaign finance, not least in relation to sanctions.
4. Dialogue with stakeholders is necessary for effective compliance
The short period that the SCEC was in existence before the elections, and its lacking capacity makes it understandable that that the Commission had little time to reach out to candidates to inform them regarding their reporting responsibilities. This however has to be rectified for future elections, when the SCEC in accordance with its own rules of procedures, should provide detailed information to political parties and candidates. In addition, training sessions should be organised so that all candidates have the capacity to comply with the reporting requirements.
In addition, the SCEC should interact with civil society organisations that work with related issues to exchange information and ideas to the benefit of the monitoring of campaign finance in Lebanon. For example, it is difficult to see how the adherence to spending limits can be effectively controlled without the assistance of interested non-state actors.
5. Political parties should submit financial reports
While the limited attention aimed at political parties in the current structure is understandable given their unclear legal and occasionally political status, it is difficult to conceive of the SCEC receiving a complete picture of campaign expenses unless political parties are also required to report on their expenses. This may be done in connection with the creation of overall legislation related to political parties, which has been recommended by, among others, the 2005 European Union Election Observation Mission.14 In line with this recommendation, the SCEC or its successor should be given the mandate to conduct ongoing monitoring also of the income and expenditure of political parties.15 Final Report of the European Union Election Observation Mission, page 9.
It may be advisable to extend the political finance regulations also to bodies related to political parties.
See Parliamentary Assembly of the Council of Europe, Recommendation 1516 (2001), para 8F "The legislation on financing political parties and on electoral campaigns should also apply to entities related to political parties, such as political foundations."
The Political Finance Framework in Lebanon Reference can be made to the Council of Europe, Committee of Ministers Recommendation (2003)4, which affirms that” States should require political parties to present the accounts referred to in Article 11 [consolidated accounts that include those of directly or indirectly related entities] regularly, and at least annually, to the independent authority“.16
6. Sanctions against non-compliance must be clear and must be applied Article 62(1) states that anyone who breaches Chapter five of the Electoral Law (which for example bans the receipt of foreign funding and obligates candidates to submit reports) shall be sentenced to not more than six months imprisonment and/or a fine of 50 to 100 million.
Information received indicates that more than 100 candidates have not submitted their postelection financial reports, and are therefore in clear violation of article 61 of the same act. The SCEC submitted the name of these non-complying candidates to the Public Prosecutor on August
25. It is imperative that sanctions are applied against such evident violations of the law.
It is unclear whether the sanctions against breaching the political finance regulations included in the Election Law can be applied against winning candidates, as they may have been sworn in and subsequently acquired immunity by the time they are due to submit their financial reports to the SCEC. It is also unclear if any activity related to political finance can be the basis for a challenge against the election of a candidate (brought by losing candidates to the Constitutional Council).
Guidance can be found in the Venice Commission Guidelines on the Financing of Political Parties that “Any irregularity in the financing of an electoral campaign shall entail, for the party or candidate at fault, sanctions proportionate to the severity of the offence that may consist of the loss or the total or partial reimbursement of the public contribution, the payment of a fine or another financial sanction or the annulment of the election” (Article 14).