Political parties in representative democracies
are so important that democratic states are often described as "party
states". Among the most important functions of political parties are:
- They constitute the
basic channels for the development, compilation and representation of
political views and interests in the electoral processes;
- They contribute to
the selection of political elites and rulers;
- They formulate
programs and ideologies that compete in the political arena, combine
interests and ideological preferences, and
- Finally, they can
function as a counterweight to governmental decisions.
Given the critical role of political parties in
pluralistic electoral systems,” The legal framework
should ensure that all political parties and candidates are able to compete in
elections on the basis of equal treatment before the law.”[i]
For the purpose of this topic, attention will be directed
to the fundamental elements of the legal framework governing political parties
that are related to their participation in the electoral process. The level of
political party involvement in the electoral process varies according to the
electoral system and the level of election. In parliamentary elections,
political parties often have a near monopoly over the candidate nomination and
in most cases the fact that a list is supported by a political party is crucial
for the identification. In presidential elections, focus is obviously placed on
candidates but their party affiliation usually plays an important role.
Political parties can also be defined as voluntary groups
of citizens formed with the aim of contributing to the determination of State
policy (or at the respective territorial level) through the shaping of
citizens’ political will, the nomination and support of candidates, the
development of political programs and any other activity oriented towards the
achievement of these goals.
International law (Article 22 of the ICCPR), “guarantees
the right to freedom of association, which includes the right to establish and
operate political parties.”[ii] The establishment and functioning of political parties in
a democratic state should be free, but they may be subject to certain typical
requirements (such as the elaboration and submission of party statutes to a
public registry or to the electoral authority) and substantial requirements,
such as the obligation to conform to democratic principles respecting the
Constitution, the laws and the democratic system.
Special requirements may also be imposed on
political parties when some of their activities are funded or subsidized by the
State and considering the fact that political parties are a vehicle for access
to elected office. Certain legal orders have also created mechanisms to ensure
that the structure and operation of political parties are democratic. However, “Any limitations to the rights to freedom of
association, expression and assembly must be prescribed by law and necessary in
a democratic society.”[iii]
As such, it is up to the legal framework to protect against undue restrictions
and to entrench due process to ensure that restrictions are not applied in an
arbitrary fashion.[iv]
Political parties may have very different structures. In
contemporary democratic systems, there are two main types of political parties:
small parties marked by liberal ideas that originate from the French and
American revolutions and big labor parties that have emerged since the second
half of the nineteenth century.
Participation in democratic elections should be open to all political parties
that share democratic values and incorporate democratic rules with regard to
both their internal functioning and objectives and external functioning.
Faithfulness to the democratic system should not be conceived, however, as
absolute acceptance of existing laws and policies. Nothing prevents political
parties from advocating for legal or constitutional reforms, provided that they
respect the valid procedures prescribed by law on access to government or legal
and constitutional reforms.
Most systems impose certain minimum requirements
for the recognition of political parties. In general, these requirements aim to
ensure a minimum standard of publication of the establishment of political
parties through registration in a public record or other similar publication
depending on the country, and to determine the democratic nature of their
internal and external functioning.
Political parties are usually registered in a public register under the
authority of the administrative or electoral authorities. In a pluralistic
system, this should be a formal requirement aiming to prevent a situation where
the name or symbol of a new party is confused with the name or symbol of any
previously registered party. In
addition, political parties should submit their statutes which should prove
that the party pursues lawful purposes through democratic means and democratic
internal procedures.
However, the purpose of registration must not be
to limit or put up barriers to the registration of political parties; “A genuine election
requires an open and inclusive registration process for political parties and
candidates from across the political spectrum, contributing to presentation of
a real choice to the electorate.”[v] For example, registration is often
accompanied by the requirement of a monetary deposit and/or the collection of
signatures in support of the application.
If a monetary deposit is required it should be justifiable and of a
reasonable amount and the deposit should be returned on fulfilling clearly set
out criteria such as receiving a given percentage of the vote. In the case of signatures,
an application should not be dismissed because a certain number or percentage
of invalid signatures but rather the party should be permitted to submit
additional valid signatures of support.[vi]
Neither should de-registration be taken
lightly. In order to respect the
fundamental rights of association, expression and assembly and to avoid
speculation and abuse, a review of party registration should be restricted to only
those cases of serious violations of the law and under clear and processes.[vii]
There is a constant debate regarding the extent of the restrictions that a
democratic system should impose on the functioning of associations and
political parties that advocate against the democratic system. There are, of
course, different solutions which must take into account the powers and the
roots of each system. Nevertheless, it is
essential to ensure the application of the rule of law and democratic
principles. This cannot be achieved by imposing restrictions on the freedom of
expression, but by regulating the exercise of organized political activities
related to electoral competition. In
some countries, such as Mexico, the provisions regarding political parties are
included not only in the legislation but also in the Constitution, given the
great importance of their role in the political life.
When party systems and democracies have reached a certain level of maturity,
stricter requirements are imposed with regard to the internal functioning of
the political groups seeking access to government or to other elected offices.
Thus, it is usually required that the internal functioning of political parties
is governed by open and transparent rules. The most common requirement is that
the leaders and the program of each political party are selected on the basis
of democratic procedures open to all party members. This situation most often
arises in mature party systems where there are well-established political
parties able to implement these principles. Certainly, the election of party
leaders is largely determined by the candidates’ popularity and leadership
skills. Nevertheless, regardless of the factors that determine the decision of
party members, they should be given the opportunity to make a democratic
decision which includes the possibility to seek redress through the judiciary
or other independent monitoring bodies in case their rights have not been
respected. As regards the external activities of political parties, there are two aspects that should be
regulated; the instruments used in their
general political action and the specific requirements and rules of conduct
that govern their participation in the different electoral processes.
Regarding majority parties, their activities should be governed by the current
rules for the protection of constitutional rights and the activities of other
parties. Violent, coercive, or intimidating measures must be excluded, as well
as measures that distort the rules of ideological competition between parties,
such as vote buying, the breach of the rules on political party funding, forms
of prohibited propaganda etc.
Political parties are more and more establishing voluntary codes of conduct
setting out stricter rules, especially before elections. These codes of conduct
point out the admissible means of electoral propaganda and the means that
should be avoided (for instance, exposure of the private life or personal
status of the candidates), the basic rules of political criticism among parties
or candidates in order to avoid excesses or excessive tension, and in certain
cases, those matters that should not be the subject of electoral debates due to
their particularly sensitive nature or because there is a general consensus on
certain issues that should be preserved (governmental structure, territorial or
religious issues, etc.).
The legal framework should also take into account the financing of political
parties, given that they have become almost exclusive channels through which
voters elect their governors. Therefore, political parties are considered to be
an essential element of current democracies for the exercise of political
rights, citizen participation and pluralism.
The financing of political parties consists of the economic resources at the
disposal of the party and for the achievement of their mission as set or
regulated in the law. In certain countries, such as most Latin American
countries, the regulation of political party funding has constitutional status.
Codes or specific laws governing political party financing form a complementary
legal framework providing for controls and prohibitions. Party financing can be
divided in two main categories: funding related to the parties’ maintenance,
which is used to cover their regular expenses, and funding in relation to the
electoral processes, which is used to cover the expenses of their election
campaign. Political financing is
considered in more depth in a subsequent section.
[i] OSCE, Guidelines for Reviewing a Legal
Framework for Elections, 15.
[ii] DRI and The Carter Center, Strengthening International Law, 22.
[iii] OSCE, Election Observation Handbook, 56.
[iv] Patrick Merloe, Promoting Legal Frameworks for Democratic
Elections, 66.
[v] European Commission, Handbook for European Union Election
Observation, 47.
[vi] OSCE, Guidelines for Reviewing a Legal
Framework for Elections, 16.
