By Dr. Najem Al Ahmad for VT
Elections are the best way to practice democracy. In order to achieve the desired results in a realistic manner that is not tainted by fraud, the need for sound management was to ensure that the vote of the voter arrives in its correct framework, and to guarantee the right of the voter to obtain the votes that were given to him, in a manner that achieves the elements of impartiality, integrity and independence. What can fulfill this task in this way as it is the judiciary, for judicial supervision leads to ensuring the electoral process as a whole, and then ensuring the right choice accordingly.
Therefore, international covenants affirmed that the authority of governance must be based on the will of the people according to free and fair elections, in accordance with the principle of secret balloting, and the enjoyment of equal opportunities for candidacy.
Although the constitutions of several countries had adopted the principle of judicial supervision of elections, this principle did not appear in concrete reality until the past short period, and it is a principle that will become clear to us that it was not decided in the Syrian Arab Republic by a constitutional text, but by a law General elections issued under Legislative Decree No. (101) on 3/8/2011, and then the General Elections Law issued under Law No. (5) issued on 3/24/2014. However, since it was decided, it found its way into concrete reality in practice, in addition to The role that was given to the Supreme Constitutional Court in Syria according to the Syrian constitution of 2012, in terms of elections related to choosing the President of the Republic, or elections related to the People’s Assembly. In France, judicial supervision of elections actually began with the promulgation of the Constitution of the French Fifth Republic in 1958.
A- The competent judiciary to supervise the presidential elections:
What is the role assigned to the Supreme Constitutional Court, the Supreme Elections Committee, and the judicial subcommittees?
1- The Supreme Constitutional Court:
Article (85) of the Syrian Constitution of 2012 clarified the provisions relating to the role of the Supreme Constitutional Court in the presidential elections, whereby the nomination to the position of the President of the Republic is upon an invitation from the Speaker of the People’s Assembly, and the nomination application is submitted to the Supreme Constitutional Court, and it is registered in a special register, within a period of (10) days from the date of announcing the call to elect the President. Candidacy applications are examined by the Supreme Constitutional Court and decided upon within five days following the specified period for registration.
The provisions contained in Article (85) of the Constitution have been emphasized in Articles (32- 33-34) of the General Elections Law No. (5) of 2014. The role of the court in supervising the presidential elections and organizing their procedures in accordance with Article (5) has also been (34) of the law.
Under Article 35 of the General Elections Law, those whose candidacy application was rejected by the Supreme Constitutional Court is entitled to grievance against this decision within three days from the date of the rejection of his application, and the court shall decide on this grievance within the three days following its submission with a final decision. After the end of this period, the court prepares a final list of candidates and announces this list by way of publication in the Official Gazette and in two daily newspapers, within fifteen days at least from the day set for polling.
It is clear to us that the role assigned to the Supreme Constitutional Court is of great importance, whether in relation to supervising the presidential elections, submitting the candidacy application to the Presidency of the Republic to the court initially, or examining and deciding on candidacy applications.
Under Article (89) of the constitution, the Supreme Constitutional Court has jurisdiction to hear appeals for the election of the President of the Republic, provided that appeals are submitted by the candidate within three days starting from the date of announcing the results, and the court decides on them with final judgments within seven days from the date of the end of the period for submitting appeals.
This indicates the constitutional and normal tendency of legislators to give the greatest guarantees related to the election of the President of the Republic, in accordance with the best internationally recognized democratic standards. This comes on the basis of the fact that the constitutional judiciary is the one that ensures the proper implementation of the constitution in the correct manner. Likewise, the possibility of influencing the court’s judges seems unlikely, given that the court’s judges enjoy immunity from removal or transfer for any reason.
2- The Supreme Judicial Committee for Elections:
Article (8) of the General Elections Law stipulates the formation of a judicial committee called the “Supreme Judicial Committee for Elections” based in Damascus, which will assume full supervision over the administration of the elections and take all necessary measures to ensure its integrity and freedom, and enjoy complete independence in its work from any other party. That the committee be composed of seven judges from the Court of Cassation, to be nominated by the Supreme Judicial Council from among the counselors of the Court of Cassation, and the same as a precaution, and a decree shall be issued naming them.
According to Article 38 of the law, the Supreme Judicial Committee for Elections and the Sub-Judicial Committees assume their duties with regard to the election of the President of the Republic, under the supervision of the Supreme Constitutional Court.
Among the guarantees created by the legislator to strengthen the independence of the committee’s work is that its members cannot be dismissed, and if the seat of one of its members becomes vacant for any reason whatsoever, the oldest reserve judges shall replace him.
According to the provisions of Article (9) of the law, the term of membership of the committee is four years from the date of the decree of its formation, and it is not renewable. As for the presidency of the committee, it is for the judge who is the most senior from among its members, and he is the one who calls for its meeting.
The law also requires all ministries, all public bodies, and others whose work relates to elections, to work to implement the decisions issued by the committee in this regard. The committee has the right to seek assistance from experienced persons it deems appropriate in order to carry out its work.
From the foregoing, we conclude the guarantees that confirm the effectiveness of the committee in its performance of its work, as it is a judicial committee of the advisors of the Court of Cassation, and is not subject to dismissal during its four-year term, the presidency is for the oldest members, as well as the commitment of all public authorities to its decisions.
Article (10) of the General Elections Law defines the competencies of the Supreme Elections Committee, including working on the proper implementation of the provisions of the General Elections Law, managing the election of the President of the Republic under the supervision of the Supreme Constitutional Court, naming members of the sub-judicial committees, defining their headquarters, and supervising their work.
We conclude from the foregoing that the supervision of the electoral process with regard to the elections of the President of the Republic is held before the Supreme Constitutional Court, while the Supreme Judicial Committee for Elections and the Sub-Judicial Committees manage these elections, which means that even with regard to the elections of the President of the Republic, the supervision and administration of the judiciary .
3- Sub-Judicial Committees:
Article (11) of the law stipulates that a judicial subcommittee shall be formed in every governorate upon any electoral merit or referendum, by a decision of the Supreme Judicial Committee, with the rank of appeal judges, noting that the judicial subcommittees are affiliated with the Supreme Judicial Committee for Elections and work under its supervision. The judicial subcommittees have the right to seek assistance from whomever it deems appropriate to carry out their work.
The Supreme Constitutional Court, the Supreme Election Committee, and the judicial subcommittees have proven their effective role in supervising the elections, in a manner that achieves reassurance for the citizen, and that the selection will be for the most worthy, the most qualified, and those who will be able to represent the people, for those who carry the concerns and aspirations of the people. And he has the ability to convince that his electoral program is the best, which was achieved in the presidential elections based on the idea of political pluralism that the Syrian Arab Republic witnessed in the 2014 presidential elections.
B- The inclusion of judicial oversight of the presidential elections
The process of judicial supervision of elections requires that it cover all stages, and not exclude any of them. And from that:
1- Justice in dividing electoral districts:
The electoral district is the frame in which the electoral process takes place. What is related to the interest of the voters is justice in dividing electoral districts, and the division of electoral districts represents the tool that enables the voter to make the best choice between candidates. Or, by enumerating electoral districts in a way that would hinder the electorate in favor of a particular party.
In other words, the fair division of electoral districts enables the proper selection of candidates, which is required by the seriousness of the elections and the extent of their expression of public opinion.
There are many trends and visions regarding the division of electoral districts, by making the entire region of the state a single district, or by adopting the principle of large districts, such as that each governorate, for example, be an electoral district, or adopting the principle of small districts, such as the number of districts or the number of seats allocated to the Parliament or local council. Each method has its advantages and disadvantages, and it is linked to the overall political, economic and social conditions prevailing in the country.
It is noticeable in most countries of the world that the issue of dividing electoral districts is left to the legislative authority. Here, the state must be divided into districts in a fair and correct manner, because too small a circle leads to an increase in the number of members of Parliament, and the large size of the constituency does not enable voters to know the candidates. This is the direction adopted by the Syrian legislator, to various degrees, depending on the nature of the electoral process. Thus, we find that Article (18) of the General Elections Law No. (5) issued on 3/24/2014 stipulated that: “The territories of the Syrian Arab Republic shall be considered one constituency for the purpose of electing the President of the Republic, and the referendum…”.
By carefully examining the text of Article (18), we find that the Syrian legislator has taken a good approach with regard to the distribution of electoral districts related to the election of the president of the republic, as well as the case with regard to the referendum, because both constitutional entitlements are matters of concern to all citizens, so Syria has made one electoral district.
2- Registration in the electoral tables:
Enrollment in the electoral roll is an objective and indispensable condition, and through the correct registration it is possible to indicate the number of the electorate and the division of electoral districts.
There are two ways to be registered in the electoral roll: Voluntary registration. According to this system, a person submits a request to the competent administrative authority requesting that his name be included in the election tables, and this is the method used in France. There is also automatic registration, according to which the administrative body prepares the lists, so that a person is not required to submit an application to register his name on the electoral roll. This method is better than the previous one, but it requires more expenses.
In Syria, we find that the Syrian legislator has entrusted, according to Article (28) of the General Elections Law, the task of preparing the general electoral registry at the state level at the Ministry of Interior in coordination with the Ministry of Justice, the Ministry of Local Administration and the Central Bureau of Statistics. In addition, according to Article (29), the Higher Judicial Committee for Elections has been entrusted with the task of ensuring that the general electoral registry is updated and audited at least two months before any electoral process.
Thus, the Syrian legislator has made registration in the electoral lists of a mixed nature, as in terms of “preparation” it is an administrative task that the Ministry of Interior carries out in coordination with some of the parties concerned with the electoral process. As for supervision, it is judicial through the Supreme Judicial Committee for Elections, which must ensure that the registry is updated. Electoral, and scrutinized before each electoral process.
3- Voting guarantees:
Democratic practice is realistically embodied, practical and tangible, when the citizen casts his vote for whomever he thinks is the most capable and most worthy to gain his confidence, so that we cannot say that the essence of the electoral process is revealed in this stage, i.e. the stage of voting, so everything that precedes it is a prelude to it, and all that follows it based on it .Also, the political future for a future stage of time is determined according to it, so giving it the attention that deserves the utmost importance.
The Syrian law has made the formation of electoral commissions based on a decision issued by the governor, and each committee consists of a president from among the state’s civil servants, and two members. Before the committee begins its work, its chairman and members swear an oath before the judge of the First Civil Court of First Instance to “perform their mission honestly and honestly”. The committee is in charge of managing the voting process at the polling station, registering the names of the voters, and verifying their identity. It also conducts the counting at the center, announces its results, organizes the ballot records, and submits them to the judicial subcommittee.
Among the guarantees created by the General Elections Law, which would reflect transparency and objectivity at the voting stage, is the stipulation in Article (15), according to which election committees must enable the candidates, or their representatives, to monitor the voting process, count the votes, and listen To their remarks and objections, and record that in a special record. In addition to enabling the media and the press to monitor the polling process and count the votes. These committees are also responsible for examining the objections submitted to them during the course of the electoral process, counting the votes, and recording their decisions in this regard in the special report. These decisions are subject to appeal before the judicial branch committees whose decision is final. The law granted the head of the election committee the status of a judicial police throughout the voting period, and he must maintain public order in his electoral center, and take all necessary measures to ensure the freedom of voters to exercise their electoral rights, and he may seek the assistance of the internal security forces when necessary.
4- Counting the votes and announcing the results:
Syrian law requires the election committee to work on counting the votes continuously in the polling station, to announce the results publicly, then to organize a record in one copy that includes in particular the names of the candidates, the votes that each of them received, and the decisions and actions it took during the course of the election process. This report is immediately submitted to the Judicial Subcommittee.
After the committee’s minutes are received by the Judicial Subcommittee, the committee will count the results of the elections in all the electoral district’s centers in the presence of whomever the candidates or their agents want, and it organizes a total report on this in two copies. A copy of this report is submitted to the Supreme Judicial Committee for Elections, indicating the second reservation at the governorate headquarters.
It must be noted that if the Judicial Subcommittee decides to invalidate the election in one of the electoral centers, then the election is repeated on the next day in the center in which it decided to invalidate the election, unless another date is decided, and in this case the re-election is limited to those who previously voted in it only. The announcement of the election results in the electoral district shall cease until the election process is again completed in that center.
In sum, the legislator has worked to create guarantees that ensure the transparency and integrity of the electoral process, so that the voter is the basis and source of authority, so he decides, by his own free will, who is qualified to represent him. Presidential elections are a constitutional entitlement created by the constitutional legislator, who entrusted the law to lay down the detailed provisions governing it, based on the requirements of the state’s national sovereignty, the impermissibility of interference in its internal affairs, and the regular and steady functioning of its public facilities.
Damascus in 18-5-2021
Dr. Najem Al Ahmad
Professor of Public Law at Damascus University