How Legal Instruments Define Electoral Processes
The structure, powers, functions and responsibilities of EMBs are defined in those parts of a country’s legal framework that deal with electoral processes. Especially in newer democracies, the current trend is to develop a comprehensive legal framework that guarantees the independence and integrity of the electoral process, promotes consistency and equality in electoral management, and supports full and informed participation in electoral events by political parties, civil society organizations (CSOs) and electors. The full legal framework for elections can be based on a variety of sources, including the following:
- International documents, for example article 25 of the International Covenant on Civil and Political Rights (ICCPR): "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: a) To take part in the conduct of public affairs, directly or through freely chosen representatives; b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; c) To have access, on general terms of equality, to public service in his country".
- Regional documents, for example the African Charter on Democracy, Elections and Governance: ‘State Parties re-affirm their commitment to regularly holding transparent, free and fair elections in accordance with the Union’s Declaration on the Principles Governing Democratic Elections in Africa’ (article 17).
- The constitution.
- National laws, which may take the form of one comprehensive electoral code, as in Albania, Argentina, Armenia and the Philippines. Alternatively, there may be a set of laws covering different aspects of the electoral process. Indonesia, for example, has a Law on General Elections, a Law on Election Organisation, a Law on Presidential Elections, a Law on Political Parties, a Law Establishing the Constitutional Court (one of whose functions is the resolution of certain electoral disputes) and a Law on Local Governance, which includes provisions for elections for the heads of the regional executive branches of government. Some countries (e.g. Latvia, South Africa, Uzbekistan and Zambia) define the structure, composition and powers of their EMB in a separate law, as does Thailand, where this law has the higher status of an organic law. Other laws, such a voter registration law, ID law or a law on the organization of the national territory, can also be part of the legal framework.
- Provincial or state laws, which in federal countries may govern the processes for provincial or state and local electoral events (as in Australia) or for national electoral events (as in the United States).
- Ordinances and regulations made by national or lower-level authorities.
- Regulations, proclamations and directives issued by an EMB, if it has the power to do so.
- Customary laws and conventions that may be integrated into electoral law, or EMB regulations or policies dealing with issues such as separate voter registration and voting arrangements for women and men.
- Administrative policies made by an EMB or other bodies, and
- Codes of conduct (voluntary or otherwise) that may have a direct or indirect impact on the electoral process, for example, for EMBs, election participants, observers and election reporting by the media.
The organization and administration of electoral processes is complex, and always involves a substantial mass of detail. It is therefore usually specified in written laws and regulations, rather than determined by unwritten tradition or administrative policy-making. Written laws and regulations provide the benefits of certainty, visibility and transparency; are easier to subject to judicial review; and are accessible to interested parties, including electors. The legal certainty provided by a detailed exposition of electoral processes embedded in law, backed by constitutional authority, will tend to promote confidence in the consistency, fairness and even-handedness of electoral administration, and provide clear opportunities for legal redress. The level of detail specified at different levels of the legal framework will vary from country to country, depending on factors such as systems of law and the level of trust in EMBs’ willingness and ability to make fair and consistent decisions and policies.
