The legal framework provides
the foundation on which State institutions are built. For electoral integrity
matters, the legal framework is usually set out in a number of inter-related
statutes, supplemented with by-laws (sub-laws) or regulations. A glimpse at the range of approaches for
designing and constructing the legal framework for elections, including
provisions for electoral integrity, was provided earlier in the Fairness and
Impartiality subchapter in the Overview.
The legal framework is
one of the foundations for protecting the integrity of elections. Constitutions
enshrine the political freedoms needed for competitive elections. Regulations
ensure the fairness of the process, equality of opportunity and accountability
of all participants. Codes of conduct help prevent unethical behaviour.
In most cases the groundwork
of the electoral system is found in the Constitution -- the supreme law of a
country. (Electoral system, in the broad sense, is meant primarily the way
citizens may seek elective office and by what method those offices are awarded
as a result of elections.) While a full
description – such as the precise number of mandates which are available in the
national parliament –is contained in the Constitution itself, often the precise
specifications are addressed through legislation (sometimes high-level organic
[constitutive] or constitutional legislation).
For example, in many countries the Constitution indicates a range for
the number of seats in parliament.
In some countries, the basis
for election administration proper – such as the appointment, structure and
functions of a national electoral commission – is also established under the
Constitution. This strong basis raises
the perceived rank of electoral administrators and helps to guarantee their
independence and professional status.
However, the electoral administration structure can also be established
effectively through other law(s).
Just as there are two broad
approaches (professionalism and impartiality vice political balance) in the membership of national electoral
commissions, there are different approaches to making appointments to electoral
administration. In some systems,
Parliament itself supervises electoral bodies and makes appointments to them
(although both such roles could be seen as contrary to Separation of Power
principles, in that the Legislative branch would be exercising certain
Executive functions). In other systems,
checks-and-balances approaches are followed, whereby a body or bodies (which
could include Parliament as well as non-governmental associations such as
judicial or juridical councils) propose appointments and Parliament and/or the
Head of State makes the appointments or vice
versa.
By introducing checks and
balances into the appointment process, or more broadly the notion that
appointments must be based on a political consensus, the confidence in and
credibility of an EMB can be strengthened.
An important political challenge in this context is the process of appointing
the chair, particularly if she or he holds a tie-breaking vote in a commission. This issue became a major sticking-point in
negotiations among the political parties, facilitated by the OSCE, EU Special
Representative and US Embassy, in the Former Yugoslav Republic of Macedonia
prior to the 2002 parliamentary elections that were the first such elections
following a civil conflict. (Ultimately,
it was agreed that the President of the Republic would nominate a person for
Chair of the State Election Commission, subject to approval by Parliament.)
Other legislation including electoral laws, judicial
and penal codes and civil rights statutes, as well as regulations and codes of
conduct/ethics promulgated by electoral authorities, usually in consultation
with the affected organizations (such as political parties, civil society, the
media and the civil service) is also included in the legal framework.
The legal framework may give
powers to certain bodies over specific functions. It may also constrain these
powers by dividing them between different institutions subject to a series of
checks and balances. For example, electoral administration may be separated
from enforcement; or an electoral agency may be given the power to administer
elections, but another body authorized to delineate the electoral districts or
administer public funds for political parties. Checks may be provided by
delegating responsibility to an oversight agency or office (e.g., an inspector general) to monitor the
administration of elections, identify problems and recommend solutions. In several countries (including Austria, Croatia,
Germany and Romania),
the Constitutional Court
exercises supervisory as well as appellate jurisdiction over the electoral
process.
Enforcement is essential for
protecting election integrity. The legal framework should establish mechanisms
for enforcing electoral regulations, ensuring accountability of electoral
authorities and other participants in the electoral process, and deterring improper
or illegal behaviour. Enforcement jurisdiction is usually assigned to the
justice system, the police, and the courts; but administrative and civil
sanctions can also be provided for in less serious cases.
In newer democracies, the rules
for holding free and fair elections may still be evolving. In such
circumstances, it may be important to include the basic principles of electoral
administration in the legal framework. Once the basic legal framework is in
place, further development of the institutional and administrative frameworks
for elections can proceed. In countries
in transition from authoritarianism to democracy, “the challenge is to
negotiate electoral rules that all parties can accept and respect.”[1]
A reform of the legal
framework for other purposes can be used to bring greater integrity into the
electoral process. This was the case in Mexico,
where legal reform led to democratic changes. A new institutional framework,
including the Federal Electoral Tribunal, and new modes of citizen participation
were created. The new institutions then established procedures and operating
methods that reinforced the electoral integrity provisions in the new
legislation.[2]
In most countries, the legal
framework for elections has evolved into a complex combination of statutes,
regulations, judicial rulings and actual practice. Some election laws may be
new and up-to-date, while others remain unamended but still in effect. For
integrity purposes, it is important to review the entire legal framework periodically
and determine whether changes are needed.
It is important to address gaps, overlaps and conflicts among
various provisions in the legal framework.
Whether designing a new system or revising an existing one, electoral
administrators and policy makers would need to take a comprehensive look at all
of the different laws, regulations and procedures that help protect election
integrity.
Electoral administrators must be
able to understand how the different legal and administrative pieces fit
together, providing a consistent legal framework for promoting and protecting
electoral integrity. For example: does the Penal Code cover election fraud that
is criminal in nature? In a federal system, do national or state governments
have jurisdiction over election conduct? Could a violation go undetected or
unpunished because of a gap in the legal or administrative framework?
[1] Pastor, Robert A., “Mediating Elections,” Journal
of Democracy, 9(1), 1998, p. 160
[2] Schedler, Andreas, Distrust Breeds Bureaucracy: The Formal Regulation of Electoral Governance in Mexico,
Mexico City:
FLACSO, 1999.
