The legal framework for elections has several sources and each source may
have more or less flexibility for amendment.
The International IDEA publication, International
Electoral Standards: Guidelines for Reviewing the Legal Framework of Elections,
provides this very useful chart setting out the source, formal authority and
flexibility of amendment:[i]
The chart above illustrates that in order to establish fundamental aspects
of genuine and periodic democratic elections; there is an advantage to
constitutions and international agreements arising in part from their difficult
nature of amendment thereby better enshrining core principles. On the other
hand, this same safeguarding function of difficult to amend instruments, can
result in very practical problems such as how to keep up with needed change and
best practices in a current and systematic manner and how then to ensure that
in the course of an election there will be rapid decision making on matters
that may be unique to those prevailing circumstances? The degree with which various instruments can
be amended is an important consideration in the overall legal framework.
Ideally,” Democratic
legislative and regulatory processes present opportunities for individual
citizens to review existing legal frameworks and comment on proposed changes,
as well as to suggest modifications.”[ii] Similarly for those in
the political arena, “Knowing the rules, however, is not enough. The electoral
contestants must analyze the legal framework to determine whether the rules
actually ensure a genuine chance to compete fairly.”[iii] Academics, media and all manner of civil
groups as well have significant interest in how the legal framework for
elections is created and amended and so understanding these processes is very
important to the health of the overall electoral system. Each source of the legal framework will have
its own process and opportunities and challenges to change.
Usually, electoral laws in consolidated democratic systems have a two-fold
and inconsistent nature.
- On one hand, they are evolved
within political and social debates, which cause some of their weaknesses
to be more frequently addressed than their strengths. Frequently, such a
situation encloses a contradiction that can be summed up by the following example:
how come a proportional system can be criticized when a clear separation
between voters and candidates has been promoted?
- The study of consolidated
electoral systems draws a significant conclusion: electoral systems are
supported by a very important degree of continuity. A kind of universal
rule can be established as follows: electoral systems tend to consolidate
their fundamentals; however, they can be modified when the political
system is in crisis.
Such a situation is consistent with the permanent, technical, minor and procedural
changes afflicting electoral laws. Among the reasons supporting the basic
continuity of electoral systems, some can be mentioned as follows:
- First, no one is eager to
change what is known for the unknown. Agents of any electoral system have
certainty regarding the way in which such system works. Such a certainty
does not prevent citizens or even political parties from having different
opinions about the electoral system.
- Secondly, those who can
modify electoral laws are the winners of the elections. Those who have
benefited from the current system are the ones who must promote any
change.
- Besides, there are some
historical facts that make any modification more and more difficult.
Citizens usually show a kind of empathy towards their traditional
electoral system, which is by the way and according to them, the closer
representation of democracy. The older the electoral system is, the
stronger the citizens’ empathy becomes. Tradition forces legislators to
endorse traditional clauses, which may be seen as legislative relics
somewhere else.
- Finally, there are many
legal challenges derived from reforming electoral laws. The most important
electoral rules are set down by the Constitution and vested, therefore,
with such a special protection. Electoral laws can only be reformed by
composed majorities. Such a fact obliges political parties to reach a
clear and broad understanding on the subject.
Nonetheless, minor reforms to
electoral laws are frequent. Electoral laws in both new democracies and consolidated
democratic systems are constantly reformed, constantly adjusted.
[ii] Patrick Merloe, Promoting Legal Frameworks for Democratic Elections,
5.
