Chapter 4. Electoral Reform and Forming a Constitutional Assembly.
Selecting the Constitutional Assembly that will draft a new founding document for Syria requires electoral reform. Particularly for this body, inclusiveness is paramount, as all Syrians should be represented in the assembly that will so profoundly shape Syria’s future state and society. For the election of a Constitutional Assembly, these recommendations are designed to ensure inclusiveness. For subsequent elections, the reforms recommended here may be refined or elaborated on.
4.1. Summary of Recommendations
- Adopt an electoral system to seat a highly inclusive Constitutional Assembly that will represent all components of Syrian society in the drafting of a new constitution. This may include elements of single-member districts (SMDs) and proportional representation (PR) systems.
- Form an independent Higher Election Committee to oversee the constitutional assembly elections as a whole, including preparation, voting, counting ballots, publishing and certifying results, and investigating complaints. The Higher Election Committee will oversee Provincial Committees and Election Committees.
- Review electoral district boundaries and propose adjustments if required.
- Establish explicit eligibility criteria for candidates and voters.
- Immediately begin to develop proposals for a new political party law to regulate the registration of parties competing for office.
- Accredit domestic, regional (Arab), and international observers to monitor the election process from beginning to end.
Goals, Objectives, and Principles
Goal: Electoral Reform
The goal of electoral reform is to support Syria’s transition to a political system in which public officials are chosen by voters through free, fair, and inclusive multi-party elections. Electoral reform is intended to establish laws, regulations, and procedures that create opportunities for all components of Syrian society to be represented equitably in political institutions, and that ensure citizens can hold public officials accountable for their actions. Electoral reform is further intended to provide all Syrian citizens with opportunities for political participation, regardless of minority status, ethnic origin, sectarian membership, gender identity, or any other past norm of exclusion. Political participation means not merely the right to vote, but also opportunities to hold leadership positions, organize political parties and other forms of political associations, and exercise freedoms of expression and assembly.
Objective: Election of a Constitutional Assembly
The immediate objective of electoral reform is to enable the direct election of a Constitutional Assembly. Such a body will be elected at the appropriate point in the transition process. The criteria for designing an election system for a Constitutional Assembly may be somewhat different from the criteria for future elections to a national parliament. This first legislature has the unique and crucial task of drafting a new constitution for Syria. This will be the founding document that defines the nation in its entirety, including all its diverse peoples. The constitution articulates the relationship between citizens and their government, and among citizens themselves.
In all our deliberations, the Day After project addressed how to constitute a new Syrian political order characterized by accountability, transparency, participation, and inclusiveness. That final principle merits further emphasis in the design of the electoral system that will enable the election of a Constitutional Assembly during the transition. Two aspects may be highlighted.
First, inclusion must be at the core of the mechanisms that lead to constitutional drafting. The document that defines the nation must genuinely include the nation. All components of the population should therefore be fairly represented in the assembly that will draft this founding document. Electoral reform should thus ensure that, for the Constitutional Assembly, all components of society are fairly represented. This will be central to the Constitution’s acceptance and legitimacy.
Second, the principle of inclusion also deserves specific emphasis because of the post-revolutionary moment. Uprisings are periods of flux, when many social barriers are broken and cultural norms become fluid. Previously excluded groups and individuals take on new roles, fulfill functions they were previously prohibited from, and exercise leadership. Such periods of rupture are opportunities. Too often in the transitions that follow, however, new actors are once again marginalized and divisive group identities are reproduced in the effort to establish a new system. An electoral reform that enables a highly inclusive Constitutional Assembly will help Syrians avail themselves of this post-revolutionary moment, to create a Syria that upholds some of the new social relations and opportunities that have emerged as repressive and exclusionary norms and practices have toppled.
Fifty years have passed since Syrians last experienced free elections. Since the Ba’th Party seized power in March 1963, political participation has been sharply constrained. Under non-democratic constitutions, Syria became a single-party state with a dominant executive and a subservient parliament. The constitution mandated that the Ba’th Party receive a majority of parliamentary seats. It reserved a majority of those seats for representatives of select social sectors. The establishment of political parties was tightly restricted and political activities subject to surveillance, regulation, and repression. Individuals and groups viewed by the regime as suspect or disloyal, including hundreds of thousands of Syrian Kurds, were stripped of their citizenship and their right to participate in political life. Elections, most often in the form of referendums, served merely to validate Ba’thist authority.
With the consolidation of authoritarianism in Syria during the long tenure of Hafiz al-Assad (1970-2000), electoral life in Syria became increasingly stunted and the actual exercise of political power diverged significantly from the rules set out in Syria’s constitution. By 2011, when Syria’s revolution began, the country’s leaders exercised virtually unconstrained authority over Syrian society and economy. Elections had little impact on the distribution of political power. Parliament was moribund. It played no meaningful role in policy making and exercised no meaningful oversight over the conduct of the executive, the use of public funds, or the activities of the armed forces and security apparatus.
In this authoritarian regime, officials have wielded power arbitrarily. They have not been subject to the checks and balances provided by legislative oversight. Public accountability has been nonexistent, a culture of impunity has prevailed, and abusive practices by officials have been widespread. Public interests and resources have been routinely subordinated to the private interests of powerful individuals. Citizens have lacked meaningful opportunities for political participation and been denied the right to organize politically. Political speech has been repressed. Citizens who have dared to speak out have been subject to harsh penalties, including imprisonment, torture, and in some cases execution. Many components of society have been excluded from participation and leadership on the basis of their ethnic, sectarian, religious, or gender identity.
4.3. Risks and Challenges
In the near term, Syria’s legacy of authoritarian rule poses significant challenges to the effective implementation of a democratic electoral system.
Challenge 1. Weak or nonexistent electoral infrastructure.
Syria lacks much of the basic legal and bureaucratic infrastructure needed to conduct and oversee democratic elections. While existing law contains some elements that can be carried over into a new electoral system, comprehensive review and extensive revision of existing laws will be required. This includes the development of a new political party law, the creation of appropriate election oversight bodies, and the introduction of regulations to ensure the independence of electoral bodies and processes.
Ensuring that these requirements are addressed promptly and professionally will be critical to the success of a transition. Yet at a moment in which the Syrian justice sector will confront enormous demands, its limited capacity may impede timely development of the legal underpinnings required for a democratic electoral system. Adequate financial resources need to be made available to the election commission to be able to administer a credible general election.
Challenge 2. Absence of political parties.
Other than the Ba’th Party, which operates as a massive patronage machine in which loyalty is exchanged for access to economic, professional, and social opportunities, Syria possess very limited experience in the formation and development of democratic political parties.
Significant resources and expertise will required to support the development of new political parties, and to build the capacity of existing parties—other than the Ba’th Party, the fate of which will remain to be determined during the transition (see Chapter 2).
Challenge 3. High public expectations.
In recent years, access to international media has given Syrians some familiarity with electoral processes. Like their counterparts in other post-authoritarian regimes, Syrians view democratic elections as a critical means for producing legitimate decisions and governing bodies. As a result, the transition to a post-Assad Syria can be expected to produce great popular demand to hold elections as quickly as possible.
Managing these demands, ensuring that the appropriate legal and bureaucratic structures are in place to respond to them, and providing Syria with nationwide training and capacity-building programs to educate citizens about new electoral arrangements will be critical in overcoming Syrians’ lack of experience with democratic practices. In particular, educational programs will need to address the legacies of Ba’thist rule that reinforced negative perceptions of political parties as undermining social unity, contributing to social conflict, and representing the narrow interests of individuals.
Challenge 4. History of exclusion and marginalization.
Syria has had a long history of marginalizing and repressing out-of-favor communities, both minorities and majorities. People have been excluded from participation, from leadership, even from citizenship, on the basis of ethnic, sectarian, religious, gender, or political identity.
The transition to democracy and the crafting of new democratic arrangements will need to rectify these past injustices. It will also be essential to protect previously advantaged minorities from being excluded and repressed under the new political system. Electoral and constitutional design mechanisms that have inclusion at their core will help ensure Syria emerges as a just and democratic state.
4.4. Detailed Recommendations
I. An Electoral System for a Constitutional Assembly
1. Options for an Electoral System
In some ways, the next step seems simple: hold democratic elections. But just as democratic governance can take many forms (e.g., presidential, parliamentarian), so democratic elections can be organized in many different ways and according to different systems (e.g., single-member districts, proportional representation). The Day After project reviewed many different democratic electoral systems and hybrid systems, in different settings and contexts. Some of these are elaborated below. The recommendations which follow present several options and the justifications for them.
In single-member district systems, relatively small districts are represented by a single member, and the candidate with the most votes wins. This is also referred to as plurality-majoritarian, winner-take-all, and “first past the post.” The advantage of such systems is that they may facilitate strong links between citizens and their elected representatives, as voters elect local candidates familiar with local issues and are able to hold them accountable for their performance (by not returning them to office). SMD systems also create opportunities for popular independents to contest and win election alongside established political parties. Finally, SMDs allow an ethnic, sectarian, or other type of minority to elect candidates of their choice if the minority is geographically concentrated, thus constituting a majority within an electoral district.
A proportional representation system, in contrast, allocates the seats in multi-member districts according to the proportion of votes received by the various parties running lists of candidates (e.g., if a party wins 40 percent of the votes in a district, it gains 40 percent of the seats in that district). A PR system will allow for minorities to win seats and be represented regardless of whether they are geographically concentrated (as widely dispersed members of a minority can vote for a party list). It can diversify an elected assembly to include an array of communities and ideologies. It can facilitate the election of women or other individuals traditionally barred from leadership positions, as they can be included on party lists. PR systems can also nurture embryonic party systems. Finally, they can encourage voters to look beyond parochial concerns and focus on national questions.
Both systems have advantages, and many countries adopt a mixture of the two. A mixed system may be best for Syria. The options presented below explore a few different variations. If appropriately designed, mixed systems can maximize both geographic and ideological representation, provide minorities with representation, overcome the exclusion of women, and ensure that a single party or movement is not able to govern alone without the support of a majority of the electorate.
The options described below refer to a Constitutional Assembly of 300 members. The current Syrian National Assembly has 250 members. When compared to other national assemblies in countries of a similar size, this could comfortably be increased to 300 members. Further, Constitutional Assemblies are often larger than future legislatures because inclusiveness is a paramount principle for the assembly drafting a founding document, as discussed above. A Constitutional Assembly of 300 members would imply one member for each 73,000 Syrians or 35,000 voters.
Option 1: A Mixed System of proportional representation and single-member districts (63%:32%:5%)
- 190 members elected by proportional representation in 14 provinces based on population share with the requirement that all provinces receive a minimum of 2 PR seats.
- 95 members elected from 95 single-member districts. Districts drawn on the basis of population size, geography, and communities of interest, with number of registered voters not deviating from the mean more than 20 percent.
- 15 reserved seats awarded to the highest-polling candidates from minorities that fail to be elected from single-member districts (by percent of vote).
Justification: proportional representation will encourage an emergent party system and strengthen democracy in Syria. It will also facilitate the election of women (especially if gender parity is established for party lists, see below) and of minorities, even if geographically dispersed. The 95 single-member districts will allow popular independents to be represented in their local communities and enhance geographical representation generally. At the same time, the 15 reserved seats for minorities will help to guarantee that ethnic, sectarian, and religious minorities will be represented in the assembly that will draft the new constitution. Filling the reserved seats with the highest-polling defeated minority candidates enhances the legitimacy of these representatives, as they have proven themselves to have a popular following. (Precedence for this last measure can be found in the election system of Mauritius).
Option 2: A Mixed System of proportional representation and single-member districts (47%:48%:5%)
- 140 members elected by proportional representation in 14 provinces based on population share with the requirement that all provinces receive a minimum of 2 PR seats.
- 145 members elected from 145 single-member districts. Districts drawn on the basis of population size, geography, and communities of interest with number of registered voters not deviating from the mean more than 20 percent.
- 15 reserved seats awarded to the highest-polling candidates from minorities that fail to be elected from single-member districts (by percent of vote).
Justification: Option 2 gives more weight than Option 1 to the single-member districts. It thus increases the likely strength of independents (if they are successful in local races) and of geographically concentrated minorities. It would also marginally increase the accountability of members to their local constituencies, as the size of single-member districts would be reduced. Option 2 does less than Option 1, however, to ensure fair representation of women and dispersed minorities.
Option 3: A proportional representation system
- 290 members elected by proportional representation in 14 provinces based on population share with the requirement that all provinces receive a minimum of 2 PR seats.
- 10 reserved seats for minorities drawn from the highest-positioned minority candidates who failed to be elected from the lists (by percent vote).
Justification: This system would produce a very close relationship between the votes cast for each party and their share of the Constitutional Assembly (as in Tunisia). Large disparities between votes and seats can be highly problematic where a single party can win a majority (or close to a majority) of the Assembly seats on far less than 50 percent of the popular vote (as in Egypt). The PR elections in the 14 provinces (see Figure 4-1) would provide some degree of geographical representation and ensure that cities and towns would be represented by a variety of actors from majority and minority groups (again, as in Tunisia).
Figure 4-1: Example of Seat Allocations to Provinces (PR Seats)
PR Seats (190)
PR Seats (290)
|Rif Dimashq [Damascus Rural]
2. Voting and Ballot Structure
In the PR districts, Syrians will vote for a party list and candidates will be elected on the basis of party vote and in accordance with their position on the party’s list if a closed list is used (see Closed or Open Party Lists, below). In the single-member districts, voters will choose individual candidates who may be party representatives or independents. To aid voting, the ballot will include the name and the symbol of the party or candidate in color.
3. Independent Candidates
Independent candidates will be able to contest in either the single-member districts or the multi-member PR districts—although an individual may not contest in both. If an independent candidate contests in a PR district election, that individual will be treated as a party for the purposes of seat allocation.
4. Threshold for Representation
The threshold for winning seats—the minimum level of support that a party needs to gain seats—will be the natural threshold. This is a function of the district magnitude, that is, the number of Assembly members to be elected from each province. For example, in the province of Homs, the natural threshold would be approximately 16 percent in Options 1 and 4 percent in Option 3. There will not be a national threshold set to exclude parties that win seats in the provinces. The natural threshold gives the opportunity for a greater diversity of stakeholders to gain seats, which is critical for the Constitutional Assembly. A new electoral law for subsequent legislatures may introduce an imposed threshold.
5. Closed or Open Party Lists
Within any PR system, a choice has to be made between a system which allows the voter to choose a party and accept the ordered list of candidates as presented by the party (known as a closed list), and one in which the voter is free to select particular candidates from among those presented on a party’s list (known as open list).
Option 1: Closed List. Candidates will be seated in relation to their position on their party’s list as published before the election.
Justification: Most PR systems around the world (and especially in the Arab world) use closed lists. The advantages are simplicity, a strengthening of the party system, and the comparative ease of achieving a gender balance.
Option 2: Open List. Voters will be able to vote for individual candidates on the ballot paper. Seats will be allocated to parties on the basis of party votes and those filling the seats will be the most popular candidates. If adopted, this option should also include a guaranteed minimum number of seats for women, to equal 25 percent (or 75 seats) of the Constitutional Assembly. Seats would be allocated to parties with reference to this guaranteed minimum.
Justification: Many established democracies, and increasingly emerging democracies (such as Indonesia), use open lists. This gives the voter greater choice, reduces the power of party bosses, and enhances the accountability of individual legislators to their constituents. To overcome the likelihood that male candidates will receive more votes than female candidates, this option should include a guaranteed minimum number of seats for women.
6. Inclusion of Women
Almost half of all nation-states have specific electoral mechanisms to promote the presence of women in elected office. These range from subtle and limited rules, to mandatory and far-reaching laws. Gender minimums can be an effective way of ensuring that women have access to leadership positions in public life. Mechanisms should be crafted to suit the context within which they are used and be designed to elect the most dynamic, effective, and popular female candidates—as is the case with male candidates as well. The measures proposed here should be seen as first steps towards reaching parity in gender representation.
Option 1: In the PR districts of each option detailed above, every list of candidates can alternate male and female candidates (a practice known as “zipping”).
Justification: It is increasingly common (as in Tunisia) to require political parties to balance their lists of candidates between men and women. This avoids the negative reactions to reserving seats for women, which can relegate elected women to being viewed as “second-class” legislators.
Option 2: A guaranteed minimum to equal 25 percent (or 75 seats) of the Constitutional Assembly will be filled by elected women. Seats will be allocated to parties with reference to this minimum. That is, each successful party will be required to contribute women candidates to meet the Assembly minimum. For example, if a party wins 10 percent (30 seats) of the Assembly, then it will provide 10 percent (7 seats) of the minimum female members. Candidates should be elected from the provincial PR districts in accordance to their position on the party lists to ensure this level of representation.
Justification: Option 2 is a more intrusive gender-balancing mechanism. It avoids the scenario under Option 1 where, if the vote is highly fragmented, most parties win only one, two, or three seats per PR district, and—with zipped lists—far fewer than 50 percent of elected candidates are women. (Tunisia, for example, used Option 1 in 2011 and achieved only 24 percent representation of women in its Constitutional Assembly.) Option 2 also avoids a scenario where enough individual votes are cast for male candidates to push them above female candidates who had been located higher on the party list. This has occurred in Iraq, Serbia, and Indonesia, weakening gender representation.
7. Inclusion of Minorities
In each of the three electoral systems options offered above, a small number of reserved seats (10-15 out of 300) are reserved for minority communities (Option 1 has 15, Option 2 has 15, and Option 3 has 10). The allocation of reserved seats between and among minority communities will be pre-determined on the basis of population. Seats could be distributed to recognized ethnic, religious, and sectarian minorities. These reserved seats will be awarded to the highest-polling candidates (as measured by percentage of vote in a district) who fail to be elected from single-member districts (in Option 1 and 2) or PR lists (in Option 3).
Justification: While most minorities will be able to elect candidates of choice under each of the election systems outlined (because of the proportional and single-member district elements) these reserved seats will guarantee that minorities are represented in the Constitutional Assembly. Reserved seats are, in effect, a backup mechanism to ensure that Syria’s new constitutional drafters are representative of the entire nation. As noted above, filling the reserved seats with the highest-polling defeated minority candidates enhances the legitimacy of these representatives.
8. Education of the Public
Any of these electoral system options will require education for the public on their many elements. This will include general information about how the electoral system overall will operate, as well as specific guidance on how to participate. It will also include efforts to encourage a new perception of parties as a means to represent collective interests and channel participation. Lastly, it should involve public message campaigns regarding tolerance, diversity, and inclusion (see Chapter 2).
9. Engagement with Non-partisan International Organizations
Non-partisan international organizations (such as Democracy Reporting International, International Foundation for Election Systems, International Institute for Democracy and Electoral Assistance, the Netherlands Institute for Multiparty Democracy, and the UN Electoral Assistance Division; see Selected Resources) can provide support for lawmakers and politicians in establishing the electoral system and educating the general public about that system. The transitional government and the Higher Election Commission (see below) should engage with such organizations.
II. Electoral Laws
1. Election Administration
Figure 4-2 illustrates a proposed election administration structure:
Figure 4-2: Notional Election Administration Structure
Higher Election Commission
Syria needs a Higher Election Commission (HEC) that is independent and free from government control. This commission will oversee election preparation, vote, counting, the publication and certification of results, and post-election complaints. The commission will also register domestic and international election observers. It will receive its funding from the government, but be free from government control and influence. The commission will oversee the work of the electoral bureaucracy. The HEC should consist of respected individuals who have demonstrated competence and integrity in their professional lives.
Option 1: Between three and seven commissioners: including but not limited to retired judges, independent current judges, attorneys, professors of constitutional law or political science, and civil society advocates.
Option 2: Five judges named by the Higher Council of Judges, with the highest-ranking judge among them to be the president of the HEC.
Justification: In current Syrian law, the Higher Election Commission consists of five judges. Option 1 would enable greater diversity of expertise and experience.
Provincial Committees. Each province will have a committee consisting of three judges named by the HEC. These committees will conduct the business of the election commission at the local level and work under the auspices of the HEC.
Review Committees. Three judges in each locality will be appointed by provincial committees. Their responsibilities will be to adjudicate candidate and voter eligibility and to assist Provincial Committees in investigating post-election complaints and grievances.
Election Committees: Three individuals will be named by the Provincial Committees to oversee the election process in each election center.
2. Electoral District Boundaries
The Higher Election Commission will be responsible for drawing electoral boundaries. The HEC will review existing administrative boundaries and take into account issues of population size, geography, communities of interest, contiguity, and equality. Where existing electoral boundaries are already appropriate, they may be retained for use in elections for the Constitutional Assembly.
Justification: Fair electoral boundaries are crucial to competitive elections. The drawing of district lines should be done on a regular basis by a body free from partisan considerations or political pressures. The HEC will utilize statistical and demographic evidence applied to the best practices of districting.
3. Overseas Voting
All overseas voters who are eligible may vote in the PR elections in their home province.
Justification: Syria has a long history of expatriates voting in domestic elections. Voting helps invest the Syrian diaspora in the politics and future of their home country and will also allow for Syrians displaced by conflict to play a part in their country’s future. When mixed electoral systems are used, overseas voters are commonly allowed to vote in PR districts, but their participation is more problematic in single-member districts. (In Tunisia, expatriates had their own overseas districts, with France constituting one such district.)
4. Eligibility of Candidates and Voters
Candidates should meet the following criteria:
- No criminal convictions (excepting convictions related to political matters);
- Completion of secondary education;
- Syrian citizenship;
- Aged 25 years or older;
- Not on active duty in the armed forces or security services;
- Providing the requisite number of signatures and financial deposit (The Day After project suggests 100 signatures and a financial deposit of 50,000 Syrian pounds).
Voters should meet the following criteria:
- Aged 18 years and above;
- Syrian citizenship;
- No criminal convictions (excepting convictions related to political matters).
Justification: Regarding the eligibility of members of the armed forces and security services (including the various intelligence agencies and local police), active duty members may vote but may not run for office. This is to ensure non-interference of the armed forces and security services in elections, while providing for the participation of individuals. It also aims to discourage these entities from continuing to function parallel to and outside of civil society, if completely excluded.
In making this recommendation, The Day After project reviewed election laws in other newly formed or forming Middle Eastern democracies. Libya and Egypt have both excluded law enforcement personnel from voting, at least for the current election cycle. In Libya, the decision faced substantial criticism. In Egypt, the armed forces and security services comprise some ten million potential voters. With civilian voters numbering 50 million, allowing members of the armed forces and security services to vote would have created the risk of the military dominating the election results. In Syria, better information is needed regarding the number of people on active duty in the armed forces and all security services (see Chapter 3). Once this information is known, the eligibility of these voters may need to be reconsidered if a similar concern arises.
Regarding the eligibility of convicted criminals, the recommended criteria make an explicit exception for “convictions related to political matters.” This is because under the Assad regime, many legitimate political activities have been criminalized. Thus, political dissidents carry criminal convictions based on their political speech, criminalized under such rubrics as “inciting disobedience,” “working with foreign entities against the Syrian people,” or “suspicion of intention to participate in protests.” These political dissidents should both have the right to vote and be eligible to compete for a seat in the Constitutional Assembly or to run for office in a democratic Syria.
The exclusion from voting and candidacy on the basis of standard criminal convictions of course requires an individual be able to challenge the criminal conviction before a quasi-judicial body. The formation of this body may be included under the election commission or established as an independent body.
5. Candidate Nominations
If a candidate is nominated by a party on a party list (for PR elections) or in a single-member district, then the party may apply for all their candidates together or individually.
If the candidate applies as an independent, then she or he will apply individually.
The Review Committees will examine the applications to verify the eligibility of candidates in accordance with the relevant law.
Candidates are not allowed to run in both PR elections and single-member districts simultaneously.
6. Party Registration and Regulation
A new political party law will regulate the registration of the political parties competing for office.
Review Committees will assess party applications for registration in light of these laws.
7. Election Observers
Domestic, regional, and international observers should be accredited to monitor the election process from beginning to end.
8. Voter Registration Cards
Voter registration cards should be introduced, designating the specific local voting district for each voter. This will increase logistical efficiency and diminish the possibility of multiple voting.
4.5. Timeline to Implement
Figure 4-3 depicts a notional timeline to implement Electoral Reform recommendations.
Figure 4-3: Timeline for Electoral Reform
4.6. Selected Resources
Democracy Reporting International. http://www.democracy-reporting.org/ [July 2012].
EuropeAid .http://ec.europa.eu/europeaid/where/worldwide/electoral-support/index_en.htm [July 2012].
International Foundation for Electoral Systems. http://www.ifes.org/ [July 2012].
International Institute for Democracy and Electoral Support. http://www.idea.int/ [July 2012].
Netherlands Institute for Multiparty Democracy. http://www.nimd.org/ [July 2012].
United Nations Electoral Assistance Division. http://www.un.org/wcm/content/site/undpa/main/issues/elections [July 2012].