This question is posed by ACE on behalf of an anonymous user.

Liberia recently postponed its nationwide senatorial elections due to its current State of Emergency with the spread of Ebola.

Article 83 (a) of the Liberian Constitution requires General and Presidential Elections to be held on the second Tuesday in October during election years. The President and Members of Parliament (lower house of the National Assembly) serve 6-year terms, and members of the upper house of parliament or Senators serve 9-year terms. 

Liberia's Special Senatorial Election was scheduled on October 14th, 2014, and after postponing these elections the National Assembly adopted a Joint Resolution mandating elections to occur before December 20th, 2014.  The possibility of a delay past this date in holding senatorial elections has sparked concerns of a constitutional crisis, as any activity after January 13th (2015) without newly elected senators would violate the political term limits established by the Constitution, and nullify the constitutional legitimacy of the government.

Therefore, the question is as follows:  Are there any precedents or best practices for dealing with delays in elections caused by a national crisis / emergency in circumstances, which may cause constitutional problems due to the expiration of official terms of office?

Summary of Responses

Members' responses to these questions are grouped below under the categories of general points, and country specific examples. 

General Points:

• Many countries have electoral legislation to deal with situations where constitutional and/or electoral legal provisions cannot be met owing to unfolding natural disasters, epidemics or conflict.
• In the absence of any provisions to legislate the postponement of an election, governmental legal advisers should invoke the ‘doctrine of necessity’ and advise the deferment of the elections until the crisis has passed. The ‘doctrine of necessity’ is known to most jurisdictions and to general jurisprudence.
• If elections are to be postponed, then the body/organisation performing the elections should develop a communications strategy so that the reasoning behind the decision to postpone the elections is effectively conveyed to the electorate. By being transparent, the legitimacy of the decision to postpone elections will be more widely accepted.
• The recent outbreak of Ebola highlights the importance of being able to postpone an election. Indeed, conducting an election during the Ebola outbreak would have undoubtedly increased infection levels, since it would inescapably involve increasing contact among the population.

BANGLADESH

• Article 72 of the Bangladeshi Constitution states that elections can be postponed for a maximum period of 12 months. However, the possibility of delaying elections in Bangladesh only exists in times of war or internal disturbance, and not in response to an epidemic or disaster. A further stipulation asserts that elections cannot be extended for more than six months after the termination of a conflict.

• The Bangladeshi Constitution enables the President to issue a ‘Proclamation of Emergency’ in times of crisis. However, an abuse of this power occurred in 2006. When the President’s Four Party Alliance government stepped down after completing a full five-year term of office, the President unilaterally decided to form a ‘Caretaker’ government. This decision was vehemently criticised by opposition politicians and civil society. The Caretaker government to all extents and purposes began to contrive a ‘fraudulent’ election, to be held on 22nd January 2007.
• After it became clear that the ‘Caretaker’ government was planning to orchestrate a fraudulent election in January 2007, the opposition Bangladesh Awami League announced it would boycott the election and pledged to orchestrate an extensive programme of street agitation. Indeed, large-scale unease with the status quo led to political violence, which disrupted public life and shattered any possibility of holding a ‘credible’ election. Political analysts feared the upcoming election would not be accepted nationally or internationally. It was in these circumstances that it was decided to impose a state of emergency, backed by the Constitution.

• As a result of a state of emergency being declared, the Caretaker government stayed in power for two years and the election was delayed for the duration of this time. In this period, the government and the EMB conducted gargantuan electoral reforms, and this ensued in the orchestration of a free and fair election.

CAMEROON

• The mandate of Members of Parliament and Municipal Councillors elected on 22nd July 2007 was initially set to expire in 2012. However, through the implementation of Law No.2012/007, MPs’ mandates were extended from 21st August 2012 to 21st February 2013. This mandate extension was implemented to enable Elections Cameroon (ELECAM) to successfully carry out a biometric recompilation of its electoral rolls.
• The decision to extend the mandate of MPs was in keeping with the provisions of Article 15 (4) of the Constitution, which stipulated that the President, after consultation with the Presidents of the Constitutional Council, the Bureau of the National Assembly and the Senate, may request that the National Assembly decide by law to extend or abridge its term of office. If the National Assembly consents to such extension, then Article 15 (4) specifies: “the election of a new Assembly shall take place not less than 40 days and not more than 120 days following the expiry of the extension or abridgement period.”
• Furthermore, the signing of Presidential Decree No.2012/240 of 30th May 2012 extended the mandate of Municipal Councillors for 12 months, which enabled the biometric recompilation of electoral rolls. This presidential decision adhered to the provisions of Section 170 of the Electoral Code, which stated:
• “(1) All the seats of municipal councillors shall be renewed every five years at the same date.”
• “(2) However, if need be, the President of the Republic may, by decree, extend or abridge the term of office of municipal councillors for a period not exceeding 18 months, after consultation with the Government and the Bureau of the Senate.”

LIBERIA

• In Liberia’s Constitution, the measures outlined below are designed to inhibit the abuse of power.
• Article 83 requires elections to be held on the second Tuesday of October, and does not countenance any flexibility with regard to election days.
• However, Article 86 states that the President has the power to declare a state of emergency, with the pertaining capacity to suspend certain rights, freedoms, and guarantees contained in the Constitution.
• Article 87 imposes limitations on the scope of action that can be undertaken during a state of emergency. Article 87 stipulates that emergency powers cannot suspend the Constitution, dissolve the Legislature or dismiss the Judiciary, and also prohibits the promulgation of any constitutional amendments during the state of emergency. Article 87 also enshrines habeas corpus, forbids its suspension during a state of emergency, and protects the right of citizens to challenge perceived human rights violations in a court of law.
• Furthermore, Article 88 creates procedural limits on the circumstances surrounding the declaration of a state of emergency. Before a public emergency can be declared, a two-third majority in the legislature must vote in favour of the ‘public emergency declaration’ in question.

• Therefore, whilst the Liberian President has the capacity to postpone elections during a state of emergency, the aforementioned Articles above highlight the safeguards which exist to prevent an abuse of power. If the Supreme Court challenges the President’s decision, then the President would be compelled to convince the Supreme Court of the validity of his/her attempt to promulgate a state of emergency. In delivering its verdict, the Supreme Court ought to be aware that it may be setting a precedent, upon which future legislators and judges would make their decisions.
• In the aftermath of elections being postponed, one issue that must be addressed is the length of time the next office holders would be elected for. Would they be elected for the remaining, unexpired portion of the following term of office?
• Since the threshold for obtaining constitutional amendments in Liberia is already very high, we can be assured that the pre-requisite of achieving judicial consent prior to executing election-postponing powers, as embodied in Article 86 of the Constitution, will suffice to guarantee stability.

MALTA

• Article 76 of the Constitution of Malta sets a maximum five-year term for Parliament, but allows for extensions in times of war… “At any time when Malta is at war, Parliament may from time to time extend the period of five years specified in sub-article (2) of this article for not more than twelve months at a time: provided that the life of Parliament shall not be extended under this sub-article for more than five years.”
• The possibility of delaying elections in Malta only exists in times of war, and not in case of any other epidemic or disaster.

SIERRA LEONE

• On paper, Sierra Leone has a robust constitutional framework by which elections can be lawfully and legitimately postponed. The Constitution provides both a mechanism by which this can happen and sensible checks (i.e. parliamentary approval by a two-thirds majority) against the abuse of this power.
• Sierra Leone’s Constitution makes provision for multiple forms of ‘public emergency’.
• Article 85: “Parliament shall stand dissolved at the expiration of a period of five years commencing from the date of its first sitting after a general election… If there is in existence a state of public emergency in accordance with Section 29 of this Constitution and the President considers it not practicable to hold elections, Parliament may, by resolution, extend the period of five years… from time to time but not beyond a period of six months at any one time.”
• Under Article 49 of the Constitution of Sierra Leone, it is also provided that, “the President shall not resign or retire from his office even at the due expiration of his term of office while a general election of Members of Parliament is pending within the ensuing three months, or where a state of public emergency has been declared.”
• Under Article 29, a declaration of public emergency is permitted by the President (to be approved by a two-thirds majority of Parliament within seven days if Parliament is sitting and within twenty-one days if it is not) in the following situations:
• Sierra Leone is at war;
• Sierra Leone is in imminent danger of invasion or involvement in a state of war;
• Public order/safety breaks down, resulting in the required implementation of extraordinary measures;
• If the threat of imminent danger exists, such as the occurrence of a natural calamity or disaster;
• ‘Any other public danger’ which clearly constitutes a threat to the existence of Sierra Leone.

Contributing Members

• Carl Dundas
• Elliot Bulmer
• Susana Dione Ngole Epie
• Achuh Owen Teheng
• Abdul Alim
• Victor Hugo Ajila
• Lourenco Shiluvane

The electoral legislative scheme in some countries deals with situations of this kind where constitutional and other electoral provisions in laws cannot be met through natural disasters, epidemics or conflict. In the absence of any legal provisions to cover the situation, the legal advisers to the Government should invoke the doctrine of necessity and advise the deferment of  the elections until the epidemic passes or there is a discernible lull in its severity. The doctrine of necessity is known to most jurisdictions and to general jurisprudence.

Certainly it is not unusual for Constitutions to make provision for the delaying of elections:

Article 76 of the Constitution of Malta, for example, sets a maximum 5 year term for Parliament, but allows for extensions in time of war:

(2) Subject to the provisions of sub-article (3) of this article, Parliament, unless sooner dissolved, shall continue for five years from the date of its first sitting after any dissolution and shall then stand dissolved.

(3) At any time when Malta is at war, Parliament may from time to time extend the period of five years specified in sub-article (2) of this article for not more than twelve months at a time: Provided that the life of Parliament shall not be extended under this sub-article for more than five years.

 

Likewise, Article 72 of the Constitution of Bangladesh states:

(3) Unless sooner dissolved by the President, Parliament shall stand dissolved on the expiration of the period of five years from the date of its first meeting. Provided that at any time when the Republic is engaged in war the period may be extended by Act of Parliament by not more than one year at a time but shall not be so extended beyond six months after the termination of the war.

In the case of Malta and Bangladesh, the possibility of delaying elections occurs only in case of war, and not epidemic or other disaster.

An example extending this to other forms of ‘public emergency’ can be found in Article 85 of the Constitution of Sierra Leone:

(1) Parliament shall stand dissolved at the expiration of a period of five years commencing from the date of its first sitting after a general election.

(2) If there is inexistence a state of public emergency in accordance with section 29 of this Constitution and the President considers it not practicable to hold elections, Parliament may, by resolution, extend the period of five years mentioned in subsection(1) from time to time but not beyond a period of six months at any one time.

Under Article 49 of the Constitution of Sierra Leone, it is also provided that:

‘..the President shall not resign or retire from his office even at the due expiration of his term of office while a general election of Members of Parliament is pending within the ensuing three months, or where a state of public emergency has been declared.’

Under Article 29 of the Constitution of Sierra Leone, allows the declaration of a public emergency by the President (to be approved by a two-thirds majority of Parliament within seven days if Parliament is sitting and within twenty-one days if it is not) in the following situations:

a. Sierra Leone is at war;

b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or

c.  there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or

d.  there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or

e.  there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or

f.  there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.

In other words, Sierra Leone has (at least on paper) a robust constitutional means by which elections can lawfully and legitimately be postponed. The Constitution provides both a mechanism by which this can happen and sensible checks (parliamentary approval by a two-thirds majority) against the abuse of this power.

Unfortunately, the Constitution of Liberia contains no such provisions. Article 83, which requires elections to be held on the second Tuesday of October, admits of no explicit flexibility with regard to election days. So the situation hangs on the reading of Article 86, which states:

a) The President may, in consultation with the Speaker of the House of Representatives and the President Pro Tempore of the Senate, proclaim and declare the existence of a state of emergency in the Republic or any part thereof. Acting pursuant thereto, the President may suspend or affect certain rights, freedoms and guarantees contained in this Constitution and exercise such other emergency powers as may be necessary and appropriate to take care of the emergency, subject, however, to the limitations contained in this Chapter.

The chapter in question contains certain procedural limits on the declaration of emergency (including, in Article 88, a requirement for approval by a two-thirds majority in each house of the legislature), but the substantive limits are few, these being set out in Article 87.

(a) Emergency powers do not include the power to suspend or abrogate the Constitution, dissolve the Legislature, or suspend or dismiss the Judiciary; and no constitutional amendment shall be promulgated during a state of emergency. Where the Legislature is not in session, it must be convened immediately in special session and remain in session during the entire period of the state of emergency.

(b) The writ of habeas corpus shall remain available and exercisable at all times and shall not be suspended on account of any state of emergency. It shall be enjoyed in the most free, easy, inexpensive, expeditious and ample manner. Any person who suffers from a violation of this right may challenge such violation in a court of competent jurisdiction.

My reading of this is that the President could make a case to the effect that she has the power, under Article 86, and unconstrained by any explicit prohibition in Article 87, to postpone elections during a state of emergency. She could claim this and act accordingly, but if her actions were then challenged in the courts she would have to convince the Supreme Court, which under Article 66 is ‘the final arbiter of constitutional issues’, of this position. The Supreme Court might accept this position under the circumstances, and in so doing to set a (hopefully, carefully constrained) precedent that would allow postponements under similar circumstances in the future. There might be some existing jurisprudence on this subject in Liberia or neighbouring states, but I am not familiar with it. For certainty, and to avoid subsequent challenges, it would be beneficial for the Supreme Court to pronounce definitively on this question sooner rather than later. I cannot judge the political consequences of this, in terms of how it might sour relationships between the President, the people, and the Legislature.  

What next? Would the Senators whose terms have expired remain in office, or would their seats become vacant?

If their seats were to become vacant, the Senate could then become dysfunctional, since a majority of its members is required for a quorum (Art . 33), although the Senate might decide that this means ‘a simple majority of Senators in office’, not ‘a simple majority of the total constitutional number of Senators’. There is also a requirement (Article 37) that in the event of a vacancy an election must be held within 120 days, although one might reasonably conclude that if the President has the authority to postpone elections under Article 86, the provisions of Article 83 notwithstanding, then she also has the authority to postpone by-elections.

If the out-going Senators were to continue in office until such time as an election could be held, presumably it would make sense for their successors would then be elected for the unexpired portion of the following term under Article 45.

So there are some clumsy work-arounds that could enable the Constitution to remain intact through this emergency, but they depend on the extent to which the Supreme Court is willing to legitimize the actions of the President. They also run the risk of setting dangerous precedents.

Moving to the longer term, it would make a lot of sense to adopt an amendment in line with that of Sierra Leone. However, no amendment can be made during a state of emergency, and no amendment can be made without a referendum (meaning that, if it is impossible to hold elections, it is also presumably also impossible to hold referendums).  The threshold for constitutional amendments in Liberia is very high, meaning that judicial interpretation of the extent of election-postponing powers under Article 86 is probably the best course of action. 

Hope this helps.

(It comes with the usual caveat that I don’t know the first thing about Liberia or Liberian law, so these are based on reading the text, without knowing whether the Supreme Court has pronounced on these constitutional provisions before.)

Elliot

The case of CAMEROON can be explained as follows:

The mandate of Members of Parliament and Municipal Councilors elected on 22 July 2007 was to expire in 2012.

As regards the Members of Parliament, the first extension of their mandate for a period of six (06) months was ordained by Law No. 2012/007 of 19 April 2012 which extended their mandate from 21 August 2012 to 21 February 2013 in order to enable Elections Cameroon (ELECAM) to successfully carry out the process of biometric recompilation of its electoral rolls.

The decision to extend the mandate of MPs was in keeping with the provisions of Article 15(4)(new) of the Constitution, which states that:

“In case of serious crisis or where circumstances so warrant, the President of the Republic may, after consultation with the President of the Constitutional Council and Bureau of the National Assembly and the Senate, request the National Assembly to decide by law to extend or abridge its term of office. In this case, the election of a new Assembly shall take place not less than 40 (forty) days and not more than 120 (one hundred and twenty) days following the expiry of the extension or abridgement period”.

The same exercise of biometric recompilation of electoral rolls, led to the signing of the Presidential Decree No. 2012/240 of 30 May 2012 extending the mandate of Municipal Councilors for a period of twelve (12) months (31 July 2012, to 31 July 2013). This was in keeping with the provisions of Section 170 of the Electoral Code which state:

“(1) All the seats of municipal councillors shall be renewed every 5 (five) years at the same date.

(2) However, if need be, the President of the Republic may, by decree, extend or abridge the term of office of municipal councillors for a period not exceeding 18 (eighteen) months, after consultation with the Government and the Bureau of the Senate”.

The mandate of Members of Parliament was again extended for a period of three (03) months, running from 22 February 2013 to 22 May 2013, and further extended for another period of three (03) months with effect from 01 August 2013. Consequently, Legislative and Municipal elections were successfully organized by ELECAM, on 30 September 2013.

Elliot Bulmer described the one point regarding delays of elections in Bangladesh. The Bangladesh Constitution has a provision to proclaim the State of Emergency by the President "if he is satisfied that a grave emergency exists in which the security or economic life of  Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency one hundred twenty days".

In 2006, after completing the full 5-year term, the Four Party Alliance Government left the office constitutionally and dramatically a Caretaker Government was formed led by the President himself. The administration under this government proved themselves as a nakedly partisan to a certain quarter. Lot of criticism of the government and its activities was made by the oppositions and civil society of Bangladesh. But the government firmly moved towards a ‘fraudulent’ election which was scheduled on 22^nd January 2007. A lot of protests were staged by the oppositions led by Bangladesh Awami League (BAL) and the party had announced that it would not only boycott the upcoming election but also make sure that they were not held: it had promised a programme of street agitation. There were political chaos, unrest and disorder in the society.  More than 40 people were killed and hundreds more injured in political violence since President-led caretaker government assumed power at the end of October 2007. The country was thus thrown into a deep abyss of political chaos and confrontation. Large-scale unease with the status-quo led to political violence, which in turn disrupted public life and shattered people’s confidence on the possibility of a credible election. Political analyst feared that the election might not be accepted nationally and internationally, and the country would be plunged into anarchy. So fears grew that the future of the country and its 150 million people were at stake. In this situation, the state of emergency was imposed according to the Constitution.

The Caretaker Government stayed in power for about two years and the election was delayed. But the Government and the EMB did huge electoral reforms and finally arranged the 'best eelction in the history of Bangladesh'.

Considero que efectivamente nos encontramos frente a una situación difícil en varios aspectos, uno de ellos es legal pues si la Constitución o la Ley mandan hacer elecciones en una fecha y no se realizan, entonces se presenta un posible incumpimiento o desacato de la norma. Sin embargo, considero que el problema no pasa eminentemente por lo jurídico sino por la percepción de los actores políticos y de la sociedad. Si las fuerzas políticas están convencidas de la necesidad de suspender o postergar las elcciones hasta que pase la emergencia, entonces seguramente encontrarán la fórmula jurídica para normar esta situación excepcional, y habrá aceptación y legitimidad de la decisión.

Por lo tanto, lo más importante es la forma como se maneja la crisis. El organismo encargado de hacer las elecciones debe desarrollar una estrategia de comunicación e información efectiva que llegue masivamente al electorado; además, puede generar acuerdos o compromisos entre los principales actores políticos para que la decisión gane mayor legitimidad.

En el caso de Ecuador no se prevé una situación como la que se propone en la pregunta, sin embargo el Consejo Nacional Electoral, dentro de su competencia para "Organizar, dirigir, vigilar y garantizar, de manera transparente y eficaz los procesos electorales, convocar a elecciones, realizar los cómputos electorales, proclamar los resultados y posesionar a
quienes resulten electas o electos" (numeral 1, Art. 25 del Código de la Democracia del Ecuador), puede tomar la resolución que sea más conveniente para el normal desarrollo del proceso electoral.

Por ejemplo, cuando han existido catástrofes naturales (inundaciones, deslaves, etc.) las elecciones se han postergado en años anteriores.

....No contexto juridico mocambicano posso querer opinar que ha dois direitos que concorrem: A vida e o sufragio.

Em geral a Vida, eh um valor supremo que na hierarquia supera outros, mas nao os exclui. Assim, julgo que a situacao na Liberia merece um tratamento adequado,  tambem para proteger a humanidade. Uma eleicao no contexto de Ebola implicaria contacto com a populacao e isto influenciaria os niveis de infeccao de ebola, primeiro a nivel nacional e depois a nivel internacional crescendo assim a probabilidade de muitos paizes enfrentarem o desafio de Ebola.. A situacao pode ser muito dificil de controlar.

Nao tenho dominio da legislacao daquele pais, sobretudo quanto ao tratamento que eh dado ao estado de emergencia, forca maior  entre outras imposicoes (legalmente aceites) de mudanca de atitude que nao dependa da vontade humana.

ERGO: A situacao daquele pais merece uma apreciacao precisa, para nao se fazer aproveitamento politico da situacao e respeitar ao mesmo tempo a vida humana.