The study of electoral processes
in any particular jurisdiction will always reference specific considerations of social and
political context. Even in the context of international law and standards, “States have,
and must have, wide discretion to establish institutions in accordance with
national and local conditions and requirements.”[i]
As any other legal institution, electoral systems cannot be created or
adopted in a blind way. Historical, social, political, economic and cultural
particularities of each country have to be taken into account. Such
conditions will likely be central to the planning, definition, objectives and
the stages that the democratization of any single country has to follow.
For example, the starting point for a country which has overcome an
authoritarian regime is not always the same. While some countries have been
democratic (as the Czech Republic), others may have never or not recently been
so, such as may happen with those that have just finished a lengthy colonial
period. The democratization strategy followed in a country characterized by
high levels of social development and education is unlikely to be similar to
the one followed in a country lacking minimum social structures.
Democratization seen as the conclusion of a process suggests that it is
necessary to take into account each country’s particularities. Democratization
is the final stage of a process that must not to be extended more than
necessary. Democratization requires, however, a period of stabilization and a
number of successful elections and stable governments to be become consolidated.
It can be risky to rush the undertaking of a democratization process. Any
democratization process based on undemocratic institutions and on undemocratic
laws will be frustrating. Exaggerated expectations as well as impatient actions
are always dangerous. Social and political particularities have to support the
adoption of democratization models.
There are no bulletproof solutions, but taking into account social and
economic particularities represents a reasonable starting point. Such is also
the case when the particularities distinguishing judicial and administrative
systems, the prestige of legal systems, political parties and political organizations, media and broadcasting corporations, educational level and previous
democratic experiences are taken into account.
A fundamental component of national particularities can also be found in
the so-called historical or institutional memory: other times, in countries
just liberated from dictatorships, electoral preferences are guided by
territorial and social facts in an astonishing way.
The extension of the right to vote and the evolution of the role played by
the main actors in a representative democracy (political parties) are closely
related to each other. In their origin, political parties reflected the basic
structure of constitutional law. Back then, voting was undertaken to limit
governmental powers, and political participation was limited to a small number
of individuals (usually male and adult individuals). At their origin, flexible
programs and ideologies ruled political parties. As a matter of fact, personal
interests often guided the existence of political parties. The evolution of
political parties in America has been quite different to the evolution of
political parties in Europe. However, both models have tried to export their
fundamentals to other regions of the world.
The endorsement of the right to vote as a universal right had quite
different effects in democratic regimes from those in undemocratic ones.
Recent decades have borne witness, to a kind of “democratic wave”, which
began in Southern Europe at the end of the seventies and was extended to Latin
America during the eighties and more recently in the phenomenon popularly referred
to as the “Arab Spring”. Such “democratic waves” have been supported by
effective international cooperation and have also affected Eastern Europe and
Africa.
Furthermore, normative designs, the reform of normative designs, and the
creation of international or regional electoral systems (European Union,
Central American Parliament, for instance), the creation of national (in each
single country), state, autonomous, departmental, municipal, or county
electoral systems must take into account cultural, economic, legal, social and
political particularities which affect electoral institutions and electoral
processes. This reality is also imposed on both the execution and the
adjudication of electoral laws.
An electoral system context can be seen as a group of conditions which are
closely related to each other, and which are fundamental for the design,
execution and results of such a system, not as a group of isolated referents.
Electoral models are not perfect. Different electoral systems can be used
to reach the citizens’ aims in a particular place. An electoral system will be
adequate as long as it fulfills the expectations of democratic development of
the political community in which it will be applied, or as long as it
facilitates the transitional period or the democratic consolidation of such
country.
Electoral designs can produce some results, help build-up ruling majorities
or represent in a more faithful way the existence of political groups. Nevertheless
there are some other non-electoral elements that can produce the existence of
non-representative majorities, just as happens with the size and distribution of
a Congress, the balance of powers between political parties, and the
construction of alliances and coalitions, territorial distribution of voters,
electoral agreements, and so on.
Any democratic undertaking, which aspires to be legitimate, inclusive and
viable, has to be cognizant of and answer to all the expectations and political
ideologies from every single political agent (citizens, political parties,
citizens’ organizations, interest groups, and so on), whether such political
agents’ opinions are opposite or not.
Political agreements, social
contexts and contingent circumstances, are important in designing and
developing the legal framework for electoral systems. Electoral systems have to
avoid turning themselves into unsustainable or unrealistic theoretical
postures. However, they cannot violate principles on which free and fair
elections are based, which can be listed as follows: the human’s right to vote,
to be elected, to hold regular elections, to have neutral electoral
authorities, to vote in a secret way, to have an equal access to elections, and
to have a judicial review of electoral
disputes. Therefore, as concluded in the 2005 UN Declaration
of Principles for International Election Observation, “while all election processes should reflect universal
principles for genuine democratic elections, no election can be separated from
the political, cultural and historical context in which it takes place."[ii]
[i] DRI and The Carter Center, Strengthening
International Law, 10.
[ii] European
Commission, Handbook for European
Union Election Observation, 181.
