The topic of the conference:
‘Judicial protections of electoral rights’

A fundamental principle

The international standard for democratic elections is the very transparency and integrity of the process itself. Any nation’s constitution stipulating the rules for electing its own parliament must include in its electoral laws the ability for its citizens to seek legal redress. It must be ensured by law, that individual citizens are empowered to challenge any election event, that they are able to lodge a complaint regarding its legality, and that such complaints be adjudicated fairly and the results be made public.

Every country must create a practice which in fact guarantees the legal right of complaint, even if the complaint is subsequently proven baseless. The election authorities and the courts must be vigilant so that electoral complaints are weighed in an independent and impartial manner. The framework of this process must be laid down by parliament, while the requisite financial and logistical conditions must be guaranteed by the government.
An extraordinary level of responsibility rests on the shoulders of parliamentary parties, that must play a pioneering role in maintaining electoral integrity. Every participant in the process must be ready to deal with the potential of combating election fraud. Subsequent to the final legal adjudication of post-election challenges, the validity of the results should be unassailable.

The Constitutional Court plays a pre-eminent role in the process of providing legal remedies, or other courts (if, such exist) that are specifically charged with being the final arbiters of election disputes.

At the 18th annual conference of ACEEEO to be held in Yerevan, Armenia (Sept 3-5, 2009), and in conjunction with the main topic of ‘Judicial protection of electoral rights’, we would like to discuss some additional related topics, as listed below:

1. International standards
2. Legal principles regarding remedies
3. Formulation of practices
4. The process of independent adjudication
5. Responsibilities of parliament and the government
6. The pioneering role of parliamentary parties
7. Responsibilities of all election participants
8. Street demonstrations and disturbances

The most important democratic guarantees of electoral rights are the legal guarantees accorded to it by the courts.
In Central and Eastern Europe, and in countries in transition, as part of the transformation to the new constitutional order (since 1990), the principle of the supremacy of law has been formulated. An indispensable prerequisite in the formulation of this principle is the guarantee of legal protection of political rights from encroachment by the executive branch, as well as the protection extended to individual and personal freedoms from violation of the law committed by other individuals, or political parties.

Based on the principle of the separation of powers formulated by Montesquieu, a judiciary independent of the executive and legislative branches must be charged with defending constitutional, as well as human rights. In all social relationships, courts are responsible for enforcing laws (civil, criminal, etc.); hence, legal protection must be accorded to the exercising of rights of political freedom, such as the rights embodied in the concept of electoral rights. Scientific literature is replete with a wider and more detailed definition of what they are.

In a narrower sense, by electoral rights we mean the rights of an individual, or a person, the specific right of a citizen to vote, an active and a passive right to vote. (i.e., qualifications to participate in an election, as well as the criteria for eligibility to be elected to office). According to generally accepted international rules, an individual may cast his ballot in an election, if he/she is listed on a voter registry list. On the other hand, it can happen that a citizen is accidentally (due to an administrative mistake, or technical glitch, etc.) dropped from the list, or for that matter, is listed multiple times. It can also happen, that for social or political reasons applying negative discrimination, election authorities may exclude certain groups. In view of this, regardless of whether a purposeful act, or an inadvertent mistake, it must be rectified; this responsibility belongs to courts independent of the government. The so-called passive right of election, or determination of eligibility to be elected to a certain office) is a subject of frequent argument among political parties. A decision in this area is also an important area of responsibility for the courts.

By a wider definition, all election related rights falling into the category of legal protection are those, when certain individuals, political groups, parties or the media violate the right of an individual to cast a ballot, by either preventing them to exercise this right, by purposely violating election campaign rules, or by falsifying election results. In this sense, the courts are the final arbiter and guarantee for the conduct of democratic elections, enforcing compliance by everyone, including the government. This legal protection is the guarantee of the legitimacy of elections.

According to the most expanded definition, the Constitutional Court (or, a court empowered to render decisions based on the constitutionality of an issue) also protects the right to vote by having the authority to declare parliamentary laws or directives null and void, when it considers them unconstitutional. In this sense, the court fulfills an oversight role over parliament. In certain countries, the Constitutional Court is charged with a specific role during elections: it decides legal issues regarding them, or approves the final results.

 

International electoral standards
related to Legal remedies and electoral complaints

Primary sources for international election standards are international covenants, treaties and other kinds of international legal instruments influencing political issues.

The treaties of greatest significance to the establishment of international electoral standards are mostly those drafted by the United Nations or by regional organizations. Universal instruments have been elaborated and approved usually as a result of negotiation and diplomatic exchanges and they have a large degree of support at the universal level (for example the Universal Declaration of Human Rights (1948), or the International Convention on Civil and Political Rights (1966)). Regional instruments that establish electoral standards have been worked out and adopted within regional organizations such as the Council of Europe or the Commonwealth of Independent States (for example the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and its protocols).

Non-treaty standards, the so called „soft law instruments” come from declarations, commitments, joint statements, recommendations. While such instruments have less force to press states to comply with them, such political agreements nevertheless create international electoral standards. Non-treaty agreements could include the passing of UN General Assembly Resolutions and the agreements reached by regional organizations such as the Document of the Copenhagen Meeting of the Conference on the Human Dimension (1990) or the Venice Commission Guidelines on Elections: Code of Good Practice in Electoral Matters (2002).
The Guidelines lists the most important elements of the judicial protection of electoral rights: 1. individual citizens may challenge election results and decisions taken before the elections; 2. appeals may be heard by the ordinary courts, a special court or the constitutional court or by an electoral commission; 3. appeal proceedings should be as brief as possible; 4. the procedure must also be simple; 5. appeal procedure should be clearly regulated by law; 6. disputes relating to the electoral registers can be dealt with by courts of first instance; 7. standing in such appeals must be granted as widely as possible; 8. appeal bodies should have authority to annul elections; 9. in zones where the results have been annulled, the elections must be repeated;

The Draft Convention On Election Standards, Electoral Rights and Freedoms that was approved by the participants of the ACEEEO’s annual conference held in Moscow (Russian Federation) on September 26 - 28, 2002 contains the following recommendations.

 

Principles of law regarding legal remedies

Every democratic country’s constitution defines the right to legal redress. People have a fundamental right to challenge decisions made by the executive branch and various authorities before an independent judiciary, claiming infringement of a right or grievance suffered. This general constitutional principle must also be incorporated into electoral laws.
Every citizen must have the right to challenge the decisions of electoral bodies (authorities) and request a review by an independent judiciary.
Every citizen must have the right to challenge electoral procedures promulgated by others, such as parties, the media, or individuals and dispute their legality.
Every citizen must have the right to challenge election results, the credibility of elections data and seek final redress from the courts.

At the same time, actions by a member of the electorate could be tantamount to abuse of legal rights, should he/she exercise his/her constitutional right to redress in bad faith. There is also a generally recognized social-collective interest in that legal arguments should be limited in time and space so that an elected parliament would start its work within a reasonable time frame and in a legitimate manner. For this reason, electoral law can place restrictions on seeking legal remedies; it can place time limits on the initiation of redress, or specify that the request must be accompanied by certain types of proof. Thus, electoral law must maintain a sensitive balance between the right to remedy and citizen complaints, while satisfying the dual requirements of equity and efficiency.

 

Formulation of practices

The election experience of the transitional countries has been, that despite of having a “good law” on the books, the creation of correct practices in defense of voting rights does happen automatically. Frequently, election authorities or courts do not publicize the list of requests submitted to them for legal redress, often in partnership with the media. In and of itself, having good laws is insufficient; codification of international standards into national laws is as important as carrying out the laws in practice.
Accordingly, it is incumbent upon the election authorities, as well as the courts to provide training for their employees to familiarize them with stipulations of electoral laws and engage them in regular exchanges with one another regarding compliance procedures and experiences.


It is an important responsibility of the election authorities to organize the dissemination of information to the electorate at large, specifically detailing a list of legal remedies available to them.
NGO’s have a significant role to play in this process, by publicizing mistakes and violations of the law committed by the election authorities. Legal decisions comprise the essential elements in the formulation of proper electoral practices; often parliaments incorporate constitutional and other court decisions and judgments into future electoral laws. However, even this process is not an automatic one.

 

The process of rendering independent judgment

Legal remedy, the fundamental element of adjudicating complaints from the standpoint of democracy, means that the authorities and courts making these decisions must be beholden to the law exclusively and be independent of the government, political parties, or economic entities. These guarantees must be safeguarded by every country within the framework of its own independent judiciary. In some countries, under no circumstances is a judge allowed to be a member of a political party, in others it is allowed. The question is, does party membership also mean party commitment during the decision-making process in a specific court case? Be it in a form of mandatory, or a voluntary declaration, the existence of institutional rules regarding conflicts of interest issues is a good way of ensuring personal independence.

Beyond personal independence, there are numerous institutional and organizational safeguards and other practices that could be created to guarantee the practical application of legal remedies and making the principle of impartial judgment a reality.

 

Responsibilities of the parliament and the government

Based on the recommendation of the government, it is parliament that approves electoral laws. It has been the experience of the countries in transition that during the process of submission of draft laws, sometimes the interests of those parties are being placed in the forefront, that just happen to have a majority in parliament. We are aware of numerous historical examples, when proposed amendments to electoral laws specifically favor the interests of the party in power. How can this kind of selfishness be prevented?

Constitutional courts may play a leading role in this effort. The constitution in certain countries restricts electoral law amendments to a supermajority in parliament, generally thwarting one-sided attempts by the majority party. It is also an issue of safeguards, whether the parliament or the government provides sufficient financial resources to the election authorities to conduct elections properly! The approval of additional funds for the judiciary to provide legal remedy in election related issues is also the responsibility of parliament and the government.

 

Pioneering role of parliamentary parties

All parliamentary political parties must play a preeminent role in the prevention of election fraud. This, however, does require considerable amount of self-control as well as self-restraint. Among the most insidious types of election fraud are the ones perpetrated or approved by top party officials of state organizations. These kinds of fraudulent activities question the very nature of a country’s democratic character, and consequences of such actions must be drawn by the community of democratic nations.

Even in democracies, the occurrence of smaller scale election fraud is not uncommon. Overzealous local party activists can even bring embarrassment on a parliamentary party by their actions. It is of extraordinary significance, that such cases of election fraud be repudiated by all parliamentary parties, especially those for whose benefit these acts may have been committed, in all public forums.

Courts dispense their full responsibility in protecting voting rights, if they condemn all those committing election fraud regardless of a party’s parliamentary stature. The courts are the ultimate repositories of public trust.

 

Participants’ responsibilities in all elections.

a) to guard the integrity of elections and prevent election fraud,

b.) voluntary participation in the nomination, election campaigning and voting,

c.) creation of a level playing field between nominees and nominating organizations,

d.) honest and proper application of the law,

e.) provide for access to legal remedy and an unbiased adjudication process,

f.) enable the determination of final results to yake place in a speedy and authoritative manner.

 

Street demonstrations, disturbances during and after the elections

Historically, it is not uncommon to witness street demonstrations and disturbances during, or following elections.

These historical events can be grouped or analyzed from various points of view:

• revolutionary, or counter-revolutionary movements,

• simple campaign tools, or pre-planned actions,

• righteous mass demonstrations protesting election fraud, or expression of revenge by the losing party.

It is unlikely that one could provide a general theoretical answer, as these events are historically unique, and elections can be used as a ‘casus belli’, which in turn provides an opportunity for the expression of social dissatisfaction.
The courts can also play an important social consolidation role in the handling of such violent events. In democracies, the entire institutional system of a country is built on the prevention of violent transfer of power from one group to another and elections are the express vehicle of peaceful transfer of power to other social-political-economic groups.

 

From its very inception in 1991, ACEEEO’s motto has been:

“By the authority of the ballot, not the force of the bullet...”

Pursuant to these ideals, the main theme of our conference in Yerevan is entitled “Judicial protection of electoral law”.

We anticipate active participation on behalf of all presenters and participants in the amplification, discussion and maturation of the above ideas, for strengthening democracy itself.


Zoltán Tóth             
Secretary General ACEEEO