Regulations are sets of norms,
procedures and rules that governmental institutions adopt in accordance with
law to implement the responsibilities delegated to them under the legislative
framework. Generally, executive agencies or ministries have the power to issue internal
rules and procedures without an additional legislative basis. If agency rules and procedures affect the
rights of persons they are referred to more properly as “regulations” and must
be based on a specific legislative mandate.
Electoral management bodies
are commonly authorized by countries’ constitution and/or electoral laws to
issue regulations. This is desirable in terms of allowing the adoption of
sub-laws that implement, interpret, clarify and – if necessary – fill in the
gaps in electoral legislation. In some
countries, however, electoral commissions are essentially non-executive. They carry out election operations but do not
attempt to regulate election-related conduct by election participants or
others. This is left to standing laws
and their implementation by line or special agencies. This is the case in Austria,[1] and
also in Croatia, where a law on the State Election Commission retained the
essentially non-executive approach while providing for permanent operation of
the commission and enhanced authority over voter lists.[2]
Electoral regulations govern not
only the conduct of elections by the authorities, but how electoral
participants (such as parties and candidates) should comport themselves.
Regulations issued by election-management bodies or other entities also apply
to other aspects of an election, such as media coverage and campaign finance.
To be effective, electoral regulations
should be clear, fair and equitable, and minimize undue restrictions on the
political freedoms of candidates and voters. Good regulations can help ensure a
fair process, equality of opportunity and the accountability of all
participants. Since regulations are issued by an agency, they are easier to modify
and update than legislation; thus they can provide electoral administrators
with tools for dealing with electoral integrity issues as they arise.
Regulations are similar to
legislation. They provide authority to election officials to act autonomously in
performing certain tasks, but they also limit their discretion. To safeguard
electoral integrity, compliance with and enforcement of regulations should be
continuously monitored.
The penalties for
non-compliance by administrators – especially disciplinary and administrative sanctions
– are usually set mainly by regulation. Penalties of violations of the law (and
implementing regulations) by electoral participants are normally based on
statutes and can comprise civil fines or criminal sanctions. In some cases, however, the electoral authorities
are enabled by law to apply administrative sanctions to electoral participants
– such as small fines for procedural violations or suspension of various
electoral privileges (such as nominating candidates or participating in certain
campaign-related activities).
Decrees
Some legal systems allow the
government to issue decrees on various subjects, including electoral matters.
Decrees are similar to regulations in that they are executive branch orders
having the force of law. In Argentina,
for example, a presidential decree in 1997 created a National Office of Public
Ethics within the Office of the President. The office was mandated to develop
national rules of public ethics and to monitor their enforcement.[3]
[1] See OSCE/ODIHR,
Final Report on Austrian Presidential Election, 2010, op. cit.
[2] See
OSCE/ODIHR, Republic of Croatia, Draft
Law on the State Election Commission, OSCE/ODIHR Commentaries (D. Finn,
drafter; Warsaw,
5 December 2005), pp. 8-9
[3] Argentina, Office of the President, Official Bulletin, No.
28,590, 1st Section, February 20, 1997,
