Keywords

Election Crimes, Electoral Bribery, Parliamentary Elections.

Introduction

Since elections are the means to achieve democracy at present, electoral legislation must fully inform the electoral process of all guarantees, guaranteeing genuine representation of the people through the deputies elected. The electoral process is constitutionally protected. Article 67 of the Jordanian Constitution according to its last amendment in 2011 stipulates that:

“The House of Representatives shall be composed of elected members in secret and direct elections in accordance with an electoral law guaranteeing the following matters and principles

1. The right of candidates to observe electoral activities;

2. Punishment of the abusers by the will of the electorate;

3. The integrity of the electoral process at all stages.”

Therefore, any action that would prejudice the electoral process or affect the will of the voter negatively or positively-in a manner contrary to the law-leads to prejudice to the right of people to vote, which requires the existence of legal provisions provide protection for the electoral process and the free will of the voter and find a guarantee for the peaceful transfer of power.

Since the integrity and credibility of the elections depends mainly on the freedom of the voter to choose the person he/she deems appropriate, any action that interferes with this freedom is considered illegal, especially since the jurists consider that one of the means of defamation of the elections is the use of pressure and coercion on voters, for example when the employers threaten the workers to dismiss or reduce their wages if they do not elect the candidate they support (Badawi, 2005). Therefore, the freedom of voters must be protected by the legislator from any interference affecting their free will.

One of the deterrent means that constitute an effective protection of the electoral process is recourse to penal legislation to consider offenses that affect the electoral process to be punishable, including the punishment of acts that affect the freedom of voters. Moreover, one of the most important means affecting the freedom of voters is to resort to candidates to tempt them by various means to force them to vote for a particular person or to prevent them from voting for a particular candidate, this is called the term of electoral bribery.

The Jordanian legislator stipulated this crime in Article 59 of the Election Law of the House of Representatives No. 6 of 2016, which states:

“A) Any person who commits any of the following acts shall be sentenced to hard labor for not less than 3 years and not more than 7 years:

1. giving, lending, offering or promising to give, either directly or indirectly, a voter an amount of money, benefits or other rewards for the purpose of making that voter vote in a certain manner, abstain from voting or influence other persons to vote or refrain from voting;

2. Accepting or requesting, either directly or indirectly, an amount of money, loans, benefits or other rewards for oneself or for another person for the purpose of voting in a certain manner, refraining from voting or influencing others to vote or refrain from voting.

B) 1. Any person who commits any of the acts stipulated in item (ii) of §(a) shall be pardoned from the penalty stipulated in §(a) of this Article if he/she discloses such act or confesses to having committed such act to the competent authority before the case is referred to the court.

2. Any person who presents malicious information with the intent to harm or entrap a candidate shall be sentenced the penalty stipulated in § (a) of this Article.”

The French legislator is no different from his Jordanian counterpart in criminalizing this type of electoral offense. Article 106L of the French electoral law states:

"Any person who affects the vote of another person or several persons with gifts, cash or in-kind donations, or promises.”

By favoring public or private jobs or other special benefits, or by obtaining or attempting to obtain their votes directly or by the intervention of others, by whatever means to carry or attempt to induce one or many of them to abstain from voting, a penalty of two years imprisonment and a fine of 15,000 euros shall be punished. Previous penalties that accept or seek for themselves the same gifts, or Donations or promises. The criminalization of the French legislator was not limited to individual electoral bribes of voters or candidates. It extends to criminalizing collective bribery of a group of voters.

“Any person who presents gifts, donations, pledges or administrative services for the purpose of influencing the voice of an electoral agency, part of a municipal electoral body, or group of citizens shall be punished by two years' imprisonment and a fine of 15,000 euros.

Importance of the Research

It is clear that electoral bribery is of great importance, as it has a significant impact on the results of the elections. Therefore, the existence of this phenomenon indicates the lack of real representation of the people in the House of Representatives. When money is dominant, democracy loses its meaning.

Research Problem

This research is devoted to the legal provisions relating to the crime of electoral bribery in the Jordanian Election Law No. 6 of 2016 (Law and Regulation, 2016), since this law is new, and this subject has not been scientifically discussed in depth. Hence this research is an attempt to fill the gap in this respect.

Research Questions

The research attempts to answer the following questions:

1. What is the crime of bribery and its elements? And what is the difference between it and the crime of traditional bribery?

2. What is the adequacy of the penalty stipulated in the Jordanian Election Law to prevent this crime?

3. To what extent the specific provisions of this crime are compatible with the general provisions of Jordanian law?

Research Methodology

The researchers adopt the descriptive and analytical methods, explaining the provisions of the crime of electoral bribery according to the Jordanian election law and analyzing it. A comparison of some of the distinct provisions in the legislation of other countries will be made with Jordanian legislation to the extent necessary for clarification.

Research Plan

Researchers will address the subject of this research in two sections, followed by a conclusion. Section 1 addresses the definition of the crime of electoral bribery and its historical development in Jordan. Section 2 discusses the elements of the crime of electoral bribery and its penalty under law. The Conclusion presents the findings and recommendations of the researchers.

Definition of Electoral Bribery Crime and Its Historical Development in Jordan

This section will deal with the definition of electoral bribery and differentiate it from the offense of traditional bribery. It will also present the historical development of this crime in the Jordanian election laws from 1947 until now.

Definition of the Crime of Electoral Bribery

Comparative electoral laws do not provide any definition of this crime, although they specify the elements of this crime in detail. If one turn to jurists, the researcher found that jurists did not clearly define this crime, although they have described it in different descriptions. Some jurists see it as an act of enticement and seduction of the voter (Baz, 2007; Afifi, 2002), as a means to influence voters (Mohamed, 2000). However, before defining this crime, researchers see that, by analyzing the text of the law, it contains the following:

1. This crime may be committed by the candidate or from others or from the voter.

2. The behaviour in this crime is not specified accurately, but the words are broad and loose, so the principle of narrow interpretation has no place in this crime, so that the terms of the articles of criminalization of these acts have been wide and loose, and thus it can include countless acts that bear this character (Afifi, 2002).

3. The type and nature of the money or interest provided, offered or requested by the perpetrator of such a crime is not specified. Therefore, the Egyptian legislator, by stating the word ‘interest’, is sufficient to indicate that.

4. This crime is intentional as it affects the freedom of the voter so that it is directed to the election of a particular person or to abstain from voting. Consequently, researchers define this crime as: a behaviour involving the exploitation (of interest) committed by the person - whether a candidate, a voter or others - in order to influence the freedom of election.

There is a difference between electoral bribery and traditional bribery. The crime of traditional bribery is regulated under the provisions of the Jordanian Penal Code (Articles 170-137 of the Jordanian Penal Code). This crime differs from the crime of electoral bribery in several means, the most important of which is the condition of title, purpose and cause as follows. The crime of bribery in general requires the presence of two persons. the first one who accepts the benefit or the promise of granting it, or seeking such benefit or promise of benefit in exchange for a certain facility or abstaining from it. That is the employee in the crime of career bribery. The candidate or the person who works for the candidate in the crime of electoral bribery, and the other person who gives the gift or promise to give it or abstain from it, is the citizen who has an interest in the crime of employment bribery, and the candidate or other in the crime of electoral bribery (Salameh, 2005).

Hence, the difference between the two crimes in terms of characterization appears, since electoral bribery is not required by a public official or a person included in the bribery provisions of the Penal Code. This crime is intended only to influence the freedom of the voter as a voter, whatever his positions may be (Al-Kandari, 2000).

The traditional bribery crime is also different from electoral bribery pursuant to their purposes. The purpose of the first type is the act of employee or his abstention. On the other side, the crime of electoral bribery is aimed to influence the voter's freedom by making him/her to vote for a candidate or by abstaining from voting. It is worth to say that the causality of committing the crime between the two offenses is different. The employee or traditional bribery crime cause is to protect the employment duty. Therefore, it is considered as a crime against the public administration, while the crime causality in electoral bribery lies in protecting the integrity and safety of the electoral process and maintaining freedom of election.

Historical Development of the Electoral Bribery Crime in Jordanian Law

Jordanian election laws have applied punishment to election bribery as an act affecting the integrity of elections. In the electoral law of the House of Representatives No. 9 of 1947 (Law and Regulation, 1947), the legislator set a punishment for the electoral bribery committed by the candidate or the voter or others with imprisonment for a period not exceeding 1 year and a fine not exceeding 100 Jordanian dinars, in addition to depriving the offender of this crime of the right to vote for 5 years from the date of his sentence (Article 37 of the Election Law No. 9 of 1947). Then the election law to the House of Representatives No. 24 of 1960 was issued and keeps the criminalization of electoral bribery in Article 63 but it changed the penalty by becoming a term of not less than 1 month and not more than 1 year or a fine not less than 50 dinars and not more than 150 dinars or both penalties (Law and Regulation, 1960). It is noted, that the penalty becomes a choice for the judge who may elect imprisonment or imposing a fine or both, and it is noted that the legislator in this law abolished the penalty of deprivation of offenders from election as in the previous law (Article 63 of the Electoral Law No. 24 of 1960).

The election law came to the House of Representatives No. 22 of 1986 (Law and Regulation, 1986) and considered that the crime of electoral bribery is part of the electoral campaign rules. It is prohibited in Article 65 and punished for violating Article 66 by imprisonment for a period not less than 3 months and not more than 1 year or a fine not less than 200 dinars and not more than 500 dinars or both penalties (Article 65 of the Election Law No. 22 of 1986). It should be noted that under this law, it is considered that the perpetrator in this crime is either the candidate or the voter or the representative of the candidate or the person requesting the voter, and therefore the images of this crime were limited to these persons only, and consequently the text fails to face the person who commits the offense by promise or giving without having to do with the candidate or the voter.

This has been the case in both Election Law No. 34 of 2001 under Articles 20 and 47, and Election Law No. 9 of 2010 under Articles 20 and 44 thereof. The House of Representatives Election Law No. 25 of 2012 (Law and Regulation, 2012) which considers the electoral bribery as a crime under Article 63 in all its forms and as an independent crime not related to the election campaign and regardless of the perpetrator and the penalty of hard labor for a period not less than 3 years and not more than 7 years (Article 63 of the Election Law No. 25 of 2012).

Finally, the House of Representatives Election Law No. 6 of 2016 keeps the same content of the previous law, but added new provisions as follows:

1. This law calls for not imposing the penalty from committing the crime stipulated in §2 of §(a): the form of electoral bribery committed by the voter or others by accepting or requesting benefit if the person discloses this act to the competent authorities or confess it before proceeding the case to the court.

2. Any person who submits any malicious information with the intention of harming or abusing the candidate shall be punished by the penalty of electoral bribery mentioned in the law.

Researchers have some comments on the provisions of the new electoral law for the year 2016, the most important of which are the following:

1. First comment: Linking the exemption of the offender to his confession that he committed the crime before being referred to the court means that it is possible to negotiate confession between the general prosecutor and the perpetrator, and it is established that the plea bargaining is a system that the Jordanian legislation has never taken (Al-Shahat, 2008). In fact, the system of plea bargaining does not comply with the rules of justice. This system has many disadvantages, the most important of which are:

1. It contradicts the role of the Public Prosecution, since its function is to collect the evidence of the crime in full and submit it to the court to issue the decision and it may not require the complainant to confess in return for obtaining certain merits;

2. Negotiation of confession will result in illegal practices, such as the general prosecution will address more severe charges than the original charge, for the purpose of supporting its position in negotiations with the accused party (Ateeq, 2005);

3. Negotiation of confession may lead to unequal application of the law among the accused party whose conditions are similar. In this regard, Dr. Hatem al-Shahat says:

“Negotiating justice may benefit the accused that is from a middle or high social class, either culturally, allowing him good thinking, foresight and the ability to weigh things properly in order to achieve his interest, or in terms of financial options that helps in choosing the best or most appropriate lawyers. while the accused coming from poor classes does not get anything from it, so his destiny leads him to the choice that he sees according to his simple thinking, therefore this leads to harming him” (Al-Shahat, 2008).

2. Second comment: The application of the punishment of electoral bribery on anyone who submitted any malicious information in order to harm or adversely affect the candidate does not comply with the protection which the law must impose on the election process, because the existence of such a text will prevent people from reporting the occurrence of electoral crimes for fear of punishment. In fact, there is no need for such a provision to generate fear in the person concerned, especially since the submission of the false communication is punishable in traditional texts of the Penal Code.

Elements of the Electoral Bribery: CRIME and Punishment

The topic electoral bribery has been divided into two sections, devoted to defining the elements of the crime of electoral bribery and indicating punishments for this crime.

Elements of the Crime of Electoral Bribery

The three pillars for this crime concern the role of the actor, the material element, and the moral element.

Status of the Actor

Where the legislator in the Penal Code has stipulated that the crime of traditional bribery should include the status of a public employee or the like, but the legislator under the electoral law does not require this in the field of electoral bribery, as already explained above.

The assumption in this crime is that it is possible to be committed by the candidate by giving or promising the voter a certain benefit in order to vote for him/her or to abstain from voting for others. However, the legislator did not limit this picture to the candidate only, where the text did not specify that the briber should be a candidate. The first part of the text states:

“... Whoever gave a voter directly or indirectly ...?”

This indicates the wider range of using the status of the actor. The briber may be someone other than the candidate, but he is working under his control, the so-called mediator. In this case they are considered as joint partners in the crime (Naji, 1978). A briber may have nothing to do with the candidate and he can imagine that if he/she wants to harm a particular candidate, he/she will use money or other means to prevent voters from voting to this candidate.

The crime of electoral bribery is also committed by the voter himself/herself, and this situation presumes that when the voter accepts or requests directly or indirectly a benefit for himself/herself or for others with the intention of voting or abstaining from voting. Thus, it is clear that the legislator does not give importance to the character of the actor in the crime of electoral bribery, when the material and moral elements of this crime are established regardless of the crime.

Actus Reus

The Jordanian legislator does not limit the text of Article (59) of the new electoral law to the acts carried out by this crime. The text stated a general rule without specifying a particular action, although it tried to collect all the acts, as stated in the text: “Give, lend, ... before, the request”, and this means that the legislator's desire to expand the rule without specifying the acts of the crime, any behavior can be done by this crime if it includes prejudice to the interests of the criminal protection that prompted the legislator to criminalize. The Egyptian and French legislators also came to the general texts without specifying an explicit picture of behavior. but the latter expanded the number of acts considered electoral bribery to include acts of collective bribery provided to a group of citizens, or the provision of administrative services to voters during elections, as expressed in Article 108L. French election law refers to the term "electoral body, or part of an electoral body". Regardless of the extent to which these acts are widely enumerated or differ in the formulation of comparative texts relating to electoral bribery,

The legislator does not specify the type of interest in which bribery could be in accordance with the text (amount of money or benefit or any other consideration). While the Egyptian legislature was even more precise in that he made the bribe (interest) without specifying it and without citing examples. The meaning of interest in this crime is not different from that of the traditional crime of bribery. According to the jurisprudence, interest in the crime of bribery is interpreted to the widest sense. It means absolute benefit, whether it is direct or deferred, whether visible or hidden, whether material or moral.

Interest may be simply addressed as, a promise of benefit or then it is a deferred, and may be a gift that is urgent. A phenomenon may be presented in the form of money, costume, clothing, or food, and may be concealed in the form of a contract in which the bribe is met as a sale, purchase or rent. The interest may be material, which can be assessed by cash or moral, such as the employment of a relative, promotion or transfer, or spending a dirty night with a woman. It is not required in the material interest to be in the ownership of the neck, but it is right to be able to benefit from the rental of a car or rent a house with a nominal wage or the postponement of debt owed to the employee or hosted for a period or involved free of charge on a trip (Mohammed, without a year).

The legislator does not require that the behavior of the electoral bribery to be positive or negative. The crime may be committed in both cases. The positive behavior is that the perpetrator gave, lent, offered or pledged to benefit or to induce or attempt to induce the voters to vote in a certain way in the electoral process. Therefore, by giving or lending or offering or commitment to provide interest, even if not accepted by the voter, and this behavior, intended to provide a bribe to the voter whether it has already been promised or promised, and then to achieve these images, the perpetrator must exert a positive behavior involves the offer of bribery, where the intent is not enough (Ahmed, 2003).

The negative behavior is the request or acceptance of a sum of money, loan, interest or any other consideration for himself/herself or for others in order to vote for a particular candidate or to abstain from voting or to influence others. In this case, the crime arises only by requesting or accepting electoral bribery until if the applicant does not comply with the obligation of the bribe, because the crime is considered to have taken place as soon as the applicant for the bribery of the electoral request for a gift or benefit, as this request reflects the direction of the will of the bribery seeker to trade of it. These made the law fights and criminalize it (Ahmed, 2003).

Mens Rea

The crime of electoral bribery is a deliberate crime, and intentional crimes are those crimes in which the moral element takes the form of general criminal intent, i.e., the availability of knowledge and the will of the offender. In this crime, the offender's knowledge must be focused on the elements of the crime as defined in the law and directed to the conduct of bribery.

It is worth mentioning that this crime is a formal crime, in the sense that the law did not require a result. For example, it is sufficient that the voter intends to receive the interest provided in exchange for voting or abstaining. The crime is committed even if the accused is not intended to carry out the work required. Because bribery is one of the dangerous crimes, that is, the active crimes (Al-Kandari, 2000). This means that it is not necessary to turn the will of the offender to achieve the result of changing the will of the voter or affect them negatively or positively.

However, is the general intent of such a crime sufficient or should there be a specific purpose? In fact, this crime requires, in addition to the general intention, the existence of a special purpose, which is expressed by the legislator (… in order to induce him to vote in particular or abstain from voting or to influence others to vote or abstain from voting) (Art. 59)and with a view to voting in particular or to abstain from voting or to influence others to vote or to abstain from voting (Art. 59, §2). In this regard, jurists believe that there must be a criminal intent to consider the crime as an electoral bribery crime, where the intention to provide interest or promise of interest is to influence the outcome of the elections, either by voting for a particular candidate or a specific list, or abstain, and the bribed person has determined or intended to accept or request interest in exchange for voting in the manner decided by the briber (Ahmed, 2003).

The absence of a moral element results in the absence of a crime. Hence it is not considered an electoral bribery to provide meals in the polling stations or distribute alms to the poor or to transfer voters from their homes to the polling stations when these actions are not intended to affect their electoral will.

Punishment of the Crime of Electoral Bribery

The Jordanian legislator punished the crime of electoral bribery when it is completed, with the penalty of temporary hard labor for a period not less than 3 years and not more than 7 years (See also: The Egyptian Law (regulating the direct political rights) No. 45 of 2014). It is noted that the penalty prescribed by the Jordanian legislator is a severe criminal penalty, unlike the comparative legislation, The French legislator punished the crime of electoral bribery with two penalties: the first was simple under Article 106L. It consists of two years imprisonment and a fine of fifteen thousand euros. The same penalty shall also be imposed on any person who presents gifts, gifts, promises of donations or administrative benefits to a municipal unit or group of any citizen (Article 108-L), and the other penalty shall be severe under Article 109L. Law: Punishment in the cases mentioned in Articles (106) and (108), if the offender is a public official, to ensure that the employment status is not used for special purposes in the electoral process, and since this crime is considered a felony, then the court of jurisdiction to resolve it is the first instance Court in its criminal authorization.

It is noticeable that despite the severe punishment imposed on this crime, the legislator does not differentiate between whether the perpetrator is a candidate for election or not. In this regard, researchers believe that in case the offender is being a candidate then he/she shall be deprived of competing in the election. The penalty of deprivation of election, where the text of Article 37 (... Moreover, the right to vote is denied for 5 years from the date of his sentence).

Another problem that may arise when applying the text is the announcement of the result of the elections before the verdict on the crime, where the candidate acquires a parliamentary immunity and thus suspends the proceedings against him. This is contrary to the criminalization of the person who committed the bribery, and without the ability to remove him/her from the parliament.

Cases Considered by the Jordanian Judiciary: Analysis Actual Cases or Related Events

Although the reports indicate several facts that have shown the commission of this crime, we have found only two sentences since the application of the electoral law for 2016:1. The first judgment: It was issued in case No. 125/2018 dated 10/9/2018 of the Karak Criminal Court. The facts are summarized as follows:

"The complainant is the brother of MP A.T and he on 17/09/2016 and during the parliamentary elections 2016, while the complainant was driving his vehicle, in the southern Mazar area towards Mu'ab on the night he was caught by the accused (A), who cut off the road and asked the compliant for 3000 dinars and the complainant informed him that the time was late and asked him to leave.”

In the next morning, the accused came to the complainant's house and asked him for 20 Thousand dinars instead of 3000 dinars and when the complainant inquires about the reason for giving him this amount, the accused told him that he has a video indicates buying and selling votes and if the complainant has not giving him this amount the defendant will publish the video, and the complainant immediately went to the police department and filed a complaint against the accused where the accused were arrested and prosecuted). After these facts were proven against the accused, the court found him guilty and sentenced him with prison to three years with hard labor.2. The second judgment: Issued by the Criminal Court of Irbid in case No. 114/2017 on 30/4/2018, its facts are summarized as follows: (on 20/9/2016 during the control of the witness A.G pursuant to his official function during the parliamentary elections in the school of Harema, the accused were arrested with a number of identities and, at the police interrogation, accused (A) that he had collected the identities of some citizens in order to vote for the candidate (K), and that he paid 15 dinars upon receipt of any identity. Also the accused (S) indicated that he was collecting identities in return of money with the accused (A) and (M), and that he was caught by the police, and subsequently this case was formed and the legal prosecution took place). Consequently, the court decided to convict the accused and sentenced them with prison to three years with hard labor.

Conclusion And Result

1. Electoral bribery is one of the most serious electoral crimes because it affects the election results by influencing the will of voters by illegal means.

2. The Jordanian legislator criminalized electoral bribery in all election laws issued in the Kingdom since many years, the latest of which was the Election Law No. 6 of 2016, in which Article 59 is allocated for this crime.

3. For the purpose of determining a crime as an electoral bribery crime, two elements must be satisfied: the material element and the moral element. This means that the legislator does not consider the actor character in this crime, unlike the traditional crime of bribery.

4. The Jordanian legislator stressed the penalty of this crime under the Election Law No. 6 of 2016, so that the perpetrator of hard labour shall be punished for a period not less than 3 years and not more than 7 years.

5. The legislator exempts from imposition of punishment those who commences to commit electoral bribery either by the voter or others by accepting or requesting benefit “... if he disclose this matter to the competent authorities or confess it before the case is referred to the court”. Also orders to punish the electoral bribery mentioned in the law anyone who provides any malicious information intending to harm or abuse the candidate.

Recommendations

1. Since the wording of the legal text must be concise and comprehensive at the same time, Researchers believe that the text of §(a) of Article 59 of the Election Law No. 6 of 2016 be replaced as the text provided by the Egyptian law, the Egyptian wording for this crime states: gives others or offers or commits to give him or give others a benefit in order to induce him to cast his vote on a particular face or to refrain from him and any such interest or request for himself or for others.

2. Researchers recommend that the Jordanian legislator should cancel § (b) of Article 59 of the Election Law No. 6 of 2016, as the exemption of the perpetrator of the crime of electoral bribery in its demand or acceptance form if he confesses of committing the offense does not achieve justice and will lead to the use of the system of negotiation of the confession applicable in Anglo Saxon countries and legislation. This is contrary to our legal system. The imposition of same penalty for bribery on a person who gives malicious information about the crime will make people fear of reporting any case of electoral bribery.

3. Researchers recommend that the Jordanian legislator to introduce the penalty of deprivation of the right to vote for the perpetrator of this crime, as was the case in the Electoral Law of 1947.

4. To stipulate not to consider the immunity for the offender of this crime, it is required to exclude the candidate accused of this crime from parliamentary immunity pending a decision on the case.

5. The need to establish a specialized chamber for electoral crimes within the Court of First Instance, in accordance with Article 4, §(b), of the Law on the Formation of Regular Courts, which states that: (a) And the President of the Court of First Instance shall establish a specialized judicial chamber within each of the judicial chambers or criminal chambers and in the Magistrate's Court within the Court of First Instance and its Magistrate's Courts if the proper functioning of the judicial process so requires. Each Chamber shall include one or more bodies, as needed.

Acknowledgements

The authors would like to thanks Middle East University/Jordan for its support of this research.

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