Processes to resolve disputes, “are well established
in international law through the rights to an effective remedy and the right to
a fair and impartial hearing”[i]
and although international law has not explicitly tied these concepts to
electoral disputes the same rights are generally held to apply. However, in terms of international standards,
the following are suggested as guidelines for the design and administration of
complaint adjudication systems:
1. A right of redress for election complaints
and disputes
2. A clearly defined regimen of election
standards and procedures
3. An impartial and informed arbiter
4. A system that judicially expedites decisions
5. Established burdens of proof and standards
of evidence
6. Availability of meaningful and effective
remedies
7. Effective education of stakeholders[ii]
Electoral laws establish different systems for the resolution
of electoral disputes. This is to be expected as just with other aspects
of the electoral process the, “electoral frameworks and administrative practices for election
complaints adjudication must be based on the unique cultural, political and
legal traditions in each country. No single approach or model works everywhere”.[iii]
Such diverse systems can be classified according to the nature of the top
institution in charge of undertaking the legal review of electoral actions and
electoral procedures alike. While the procedures
for dealing with complaints and appeals vary among countries they will be
expected to provide for a hierarchical right of appeal.[iv] Clear and hierarchical processes of the right
to appeal also helps, “avoid the potential for a complainant to appeal to the body considered
likely to offer the most favourable consideration of the complaint. It can
ensure that all complaints are addressed in a consistent manner.”[v]Different systems can be distinguished
as follows:
- Systems for the
resolution of electoral disputes which are based on a system of judicial
appeals (which can be used to challenge the planning, undertaking and
results of both legislative and presidential elections);
- Systems for the
resolution of electoral disputes which are carried out by political
institutions (congresses or representatives which can review whether the
elected officials’ history can be considered legal or not, and by ruling
over electoral appeals), and
- Those which can be seen
as alternative systems of resolution of electoral disputes.
Therefore, based on the methods and institutions established by modern
electoral legislation, there are two core distinguishable models of resolution
of electoral disputes: political systems are those carried out by political
assemblies, and judicial systems are those carried out by judicial
or by quasi judical institutions. In addition, there are alternative systems for the resolution of
electoral disputes that have been usually adopted by emergent democracies. Such
systems involve the intervention of international agencies empowered to resolve
electoral disputes.
Judicial systems can be also be distinguished from each other. The criteria
to do so is based on the nature of the Court empowered to sort out electoral
disputes brought before it. There are systems in which ordinary courts (i.e.
the judicial Branch of government) review electoral disputes. In some other
places, specialized tribunals (external or internal to the Judicial Branch of
Government) undertake such a responsibility (such is the case of so-called
electoral courts or tribunals prevailing in Latin America). Finally, there are
some places in which constitutional courts are empowered to sort out electoral
disputes. It is important to note that the idea of vesting the powers to sort
out electoral disputes in non-ordinary courts is aimed at preventing ordinary
judges from getting involved in political disputes or being subject to
political parties’ pressure.
Electoral Judicial Review must be generally seen as composed of the legal
disputes derived from electoral actions or resolutions taken by executive
officials. Such disputes are brought by two contesting parties before a court
or before a tribunal that is empowered to act as a referee in order to sort out
such disputes in an imperative and impartial way.
There is a clear trend aimed at setting down
different systems of judicial review regarding elections. Such systems can be
distinguished according to the nature of the court that is empowered to sort
them out. Electoral disputes can be brought before ordinary judges (as is the
case for Canada and Great Britain); before an specialized area within the Judicial
Branch of Government (as is the case for Argentina, Brazil, Mexico, Paraguay
and Venezuela); before specialized and independent courts (as is the prevailing
case for so-called electoral courts in Latin America); or before constitutional
courts (as is the case for Austria). As each country develops systems in its
own unique context the result is often, “a coordinated mix of election administrative and
election complaints adjudication duties, including specialized responsibilities.”[vi]
Whichever systems are adopted, it is very
important that the legal framework is clear because, “Ambiguous or conflicting jurisdictions among
courts and administrative bodies are confusing and unfair to political parties,
candidates, the news media and the voting public.”[vii]
For example, systems that allow the choice of venues to appeal (as is
often the case in the former Soviet Union and new democracies in Eastern
Europe) may result in counterproductive results including duplication, dual
appeals, institutional rivalry and ‘forum shopping’.”[viii]
[i] DRI) and The Carter Center, “Overview of State Obligations relevant to
Democratic Governance and Democratic Elections.” 17.
[ii] International
Foundation for Electoral Systems,
Guidelines for Understanding, Adjudicating, and Resolving Disputes in Elections
(GUARDE),Edited by Chad Vickery (United States of America: IFES, 2011), 16.
[iii] Robert Dahl and Michael
Clegg, 100.
[iv] European
Commission, Handbook for European
Union Election Observation,
60.
[v] OSCE,
Election Observation Handbook, 51.
[vi] Robert Dahl and Michael
Clegg, 121.
