Any country is free to select the most suitable electoral system. However,
such a freedom is limited and to be considered democratic has to be established
in line with international regulations and principles. Countries also bring
along their own history and context. For
example, among countries with a colonial history, there is a common trend
according to which the revision of legal frameworks includes adoption of
colonial electoral systems. That is the reason why the revision of any
country’s legal framework has to be undertaken in a sensitive way that takes
into account each country’s historical, social and cultural particularities. This
will be discussed further in the next section.
It can be said, however, that a legal framework has to be structured in a
way in which principles are included as follows:
- It has to be
straightforward;
- It has to be
intelligible;
- It has to be clear;
- It has to include all
electoral components, which are necessary to ensure the undertaking of
democratic elections.
Likewise, it is necessary that
a legal framework includes effective mechanisms to ensure full enforcement of
the law and civil rights. Punishments must follow transgressions.
Legal frameworks have to endorse the rights of voters, political parties,
and candidates to file appeals before legitimate authorities or legitimate
courts to challenge any violation against civil rights. The legal framework has
to oblige electoral authorities and courts to resolve electoral appeals related
to violations of the right to vote and provide for this to be done in an agile
way. In order to achieve definitive rulings on electoral issues, electoral laws
have to authorize higher authorities to review the orders and resolutions
issued by inferior ones. Rulings issued by the highest authorities and the
highest courts, have to be enforced immediately.
Legal frameworks also have to establish reasonable
deadlines within which electoral appeals can be filed, analyzed and resolved.
The rulings on electoral appeals have to be communicated to the contesting
parties immediately. Some appeals can be solved with no delay, while the resolution of others can take days or even longer. Bearing this in mind, the introduction of some
flexible deadlines can be useful as long as the rank of the deciding authority,
the nature of the case and the electoral urgency are all taken into account.
Many problems can be avoided when appeals are solved just in time. However,
some appeals can only be filed after the election has concluded.
Viewed from the most basic
perspective, “Elections
are examples of human rights in practice”[i] As such, free and fair elections must
always fulfill basic principles aimed at ensuring universal, free, equal,
direct, and confidential votes.
Perhaps the most fundamental
of international standards related to elections is that in fact elections must
be held. Article 21 (3) of the Universal Declaration of Human Rights (UDHR 1948)
reads, “The will of the people shall be the
basis of the authority of government; this will shall be expressed in periodic
and genuine elections which shall be by universal and equal suffrage and shall
be held by secret vote or by equivalent free voting procedures.”[ii] To do otherwise, it is observed, “the government does not ground its authority
in the will of the people.”[iii] Although non-binding the
UDHR was a watershed, establishing the broadly accepted rights of the
individual in relation to the state[iv] and important components
are now part of international customary law.
Additional core principles established and promoted by international
standards can be listed as follows:
- Voting should be universal
and the oft referred to statement of “one person; one vote” must apply. Having
set this broad standard it is recognized in international law that there
may be restrictions of the right to vote but such restrictions need to be
minimal and always demonstrably justified.
- Voting must be secret.
Not only does this imply that the act of voting must be secret but also
that ballots may never be able to be attributed to a specific voter. The goal is that, “the ballot paper when
marked and dropped into the ballot box, must be completely anonymous in
relation to the voter who marked it.”[v]
- Democratic rights and
freedoms have to be used in a free way in “genuine” elections, including
freedom of expression, association and assembly.
- The right to stand for
election should be extended broadly and limited to the minimal extent
justifiably demonstrable.
- Elections have to be
undertaken on a regular basis. Although no specific term is fixed in
international law, there is a range of views that terms should be limited
to a maximum of 5 or 6 years[vi]Electoral
authorities have to be neutral and “at all levels should act in a
professional, efficient and unbiased manner”[vii]
- Every single vote has to
be counted in an accurate and transparent way and “Ballot
papers should be deemed valid if the intent of the voter is clear.”[viii]
An independent system of
control, including the right to legal remedy, has to be installed in order to
ensure the integrity of elections It is interesting to note, that while the
requirement for genuine elections is clearly set out in international law, a
specific definition of this term is not equally well established. However, “over
time, the term “genuine elections” has come to be understood as elections that
are competitive and offer voters a real choice, where other essential
fundamental rights are fulfilled, where the will of the voters is freely
expressed, and where votes are counted honestly and accurately.”[ix] The Organization for Security and Co-operation
in Europe (OSCE) offers a further very succinct summary of key principles in
its Election
Observation Handbook (2010) stating them, “can be summed up in seven
words: universal, equal, fair, secret, free, transparent and accountable.”[x]
Such principles are usually contained in international treaties and
covenants. Yet it is interesting to observe that while international law
establishes key minimum standards regarding democratic governance, “it does not
establish a stand-alone “right to democracy” per se. This is largely
because the term and concept of democracy is too broad and too vague to be
regulated by a single legal norm.”[xi]
Nevertheless
international law and standards do establish critical rights such as the right
to genuine elections as referred to above in Article 21(3) of the UDHR and as set
out in Article 25 of the International Covenant on Civil and Political Rights
(ICCPR 1966). Together with the UDHR, the
ICCPR is among the very leading sources of international standards. In fact,
Article 25 of the ICCPR has been referred to as “the cornerstone of democratic
governance and genuine elections in international law.”[xii] Of note, the ICCPR has
been signed and ratified by more than 160 States thereby making it legally
binding in those cases.
International standards are also
contained in further United Nations and regional treaties and documents. Important
among these are:
- Convention on The Political Rights of
Women (1952)
- Convention on the
Elimination of All Forms of Discrimination Against Women (1979)
- Convention on the Political Rights of Women (1952)
- International Convention
on the Elimination of Racial Discrimination (1966)
- Convention on the Rights of Persons with Disabilities (2006)
- The European Covenant for
the Protection of Human Rights and Fundamental Freedoms (1950)
- Charter of Paris For a New Europe: CSCE Summit
(1980)
- The Document of the
Copenhagen Meeting of the Conference on the Human Dimension of the
Conference on Security and Co-operation in Europe (OSCE-1990)
- The American Declaration
of the Rights and Duties of Man (1984)
- The American Convention
on Human Rights (1969)
- American
Convention on Human Rights (1969)
- The African Charter on
Human and Peoples’ Rights (1981)
A requirement to adhere to the aforementioned principles in a particular country
depends on the inclusion of that country as signatory to the international
document. However, the normative guidance delivered by international rules is
expected to further encourage promotion and support of international rules and
guiding principles beyond simply the signatory countries. The European
Union Compendium of International Standards for Elections concludes
that legal force notwithstanding, “these instruments have strong political and
moral force.”[xiii]When a nation’s legal
framework is created or under revision, the nation is bound by the
international treaties it has signed. Therefore, electoral rules derived from
international treaties have to be upheld and will have even constitutional or
statutory rank. Other United Nations’ documents unsigned by a country can,
nonetheless, incorporate persuasive electoral standards within the electoral
regime of that country.
In addition to international and regional treaties, covenants and
convention the review and revision of legal frameworks can also take into
account additional references such as:
- Political commitments, e.g. League of
Arab States (LAS), The Organization of the Islamic Conference (OIC), The
Commonwealth, The Organization for Security and Co-operation in Europe
(OSCE), The European Union (EU), among other initiatives[xiv];
- Final reports from the
different missions of electoral observation (both national and
international), as long as such reports are available;
- Requirements from any
additional international agreement signed by the country that may have an
impact on electoral laws;
- Codes of conduct related
to electoral topics and developed by governmental or non-governmental
international organizations. (Codes of conduct are considered further in
the section dealing with legal instruments.);
- Best practices, such as
in the areas of transparency, level playing field for electoral
contestants, voter education and establishing a peaceful environment for
voting, “While
not always specifically referred to in universal or regional instruments,
many of these practices can be considered essential to a genuine and democratic
electoral process.”[xv]
As the International Institute for Democracy
and Electoral Assistance (IDEA) sums up, “The legal framework should be so structured as to be unambiguous,
understandable and transparent, and should address all components of an electoral
system necessary to ensure democratic elections.”[xvi] The requirement for accessibility of the
legal framework should also take into consideration the multiple language
requirements that may exist in a given country.
In addition to whatever force of international law may
arise from such documents, “In any case it is hoped that the overall normative
guidance they provide will nevertheless foster the promotion of, and support
for, these international standards.”[xvii]
It is important to evaluate
the way in which electoral legal frameworks governing a country are in line
with international standards. Such evaluation can offer a catalogue of
constructive proposals in order to improve and correct legal frameworks as well
as to introduce more effective practices aimed at improving the legislation. At
the same time, it is important to remember that there are no general models or
“one size fits all” when it comes to electoral rules. Therefore, systems and
practices that are applied in one country are not necessarily ideal for another
one.
[i] European
Commission and Network of Europeans for Electoral and Democracy Support
(NEEDS), Compendium of International
Standards for Elections, Second Edition (Sweden: Elanders Graphic Systems
AB, 2008), Preface.
[iv] European
Commission, Handbook for European
Union Election Observation, Second Edition, (Sweden: Elanders Sverige AB,
2008), 16
[v] European
Commission and NEEDS, Compendium, 6.
[vii] Organization
for Security and Co-operation in Europe (OSCE) Office for Democratic
Institutions and Human Rights (ODIHR), Election
Observation Handbook, 6th Edition. (Poland: Poligrafus Andrzej Adamiak,
2010: 23).
[ix] Democracy
Reporting International (DRI) and The Carter Center. Strengthening International Law to Support
Democratic Governance and Genuine Elections (Berlin, Germany/Atlanta
Georgia, United States of America. 2012),
26.
[x] OSCE,Election Observation Handbook, 7.
[xi] DRI and The Carter Center, Strengthening
International Law, 7.
[xiii] European
Commission and NEEDS, Compendium, 1.
[xv] European
Commission, Handbook for European
Union Election Observation, 15.
[xvi] International Institute for Democracy and Electoral Assistance
(International IDEA), International
Electoral Standards: Guidelines for reviewing the legal framework of
elections (Halmstad,
Sweden: Bulls Tryckeri, 2002: 11).
