The legal framework provides the foundation on which the institutions are built and determines the scope and nature of political participation. The legal framework for elections, and especially election integrity issues, is usually found in a number of inter-related laws and regulatory provisions.
The foundation in most nations is the Constitution which is their supreme law. This foundation is supplemented by legislation enacted by the parliament or legislature, which includes election laws (laws that include the provisions for the electoral process, campaign finance and voting rights), criminal laws, penal codes, and Regulations, including Codes of Conduct/Ethics, issued by the different regulatory agencies related to elections.
Within the legal provisions are the guidelines for the structure of the electoral administration, instructions for the electoral managers on how to administer the elections, and the rights and responsibilities of political parties, the media, the voters and other participants.
The legal framework authorizes the election management body to administer the elections according to the structure detailed in its provisions. It empowers the political parties to raise funds and participate in the elections according to the legal provisions. And it ensures that the voters retain their political rights to vote and elect their government representatives.
In most countries, the legal framework for elections has evolved into a complex combination of legal statutes, regulations, judicial rulings and actual practice. Some election laws may be new and up-to-date, others may be old statutes that are outdated but still in force. There can be gaps, conflicts and inconsistencies between the different pieces of the legal framework that forms the electoral process. In Argentina, for example, the Argentinean chapter of Transparency International found that there were more than 90 different pieces of legislation on political party financing. 73
For integrity purposes, it is important to review the entire legal picture in order to understand the legal framework and to determine whether corrective action is needed, and, if so, what type of action should be taken.
The Foundations for Integrity
To ensure that the election results accurately reflect the will of the voters, the legal framework must protect the principles of a free, fair and competitive election (see Fair Process). They can be designed, as, for example, in the Philippines, towards having '.. honest, orderly, peaceful, credible, and fair elections, and to give our countrymen equal opportunity for public service.' 74
The legal framework can protect election integrity in several ways. Power is given to specific bodies for specific functions. But the amount of power can be limited by separating it among different institutions and subjecting it to a series of checks and balances. For example, an election management body is empowered to administer the elections but another body may be authorized to set the boundaries of the electoral districts or to administer public funding for political parties.
Checks can be provided through power delegated to an oversight agency or office, such as an Inspector General, to monitor the administration of the elections, identify problems and make recommendations for corrective actions. Enforcement of the laws is usually handled by the judicial system, the police, the courts and the prisons.
In the newer democracies, the rules for free and fair elections are still evolving. In these instances, it is important to include the basic principles in the legal framework. According to Robert Pastor, in the case of elections in countries undergoing a democratic transition from an authoritarian regime 'the challenge is to negotiate electoral rules that all parties can accept and respect.' 75 Once this basic legal framework is completed, work can then start on the development of the institutional and administrative frameworks for the electoral process.
Reforming the legal framework, can be the starting point to bring integrity back into the electoral process. For example, this was the case in Mexico, where legal reform provided the 'lever'76 for genuine democratic change. Using their new election law as the foundation, a new institutional framework and modes of participation were created. These institutions then established procedures and operating methods that reinforced the election integrity provisions in the new legislation. These series of reforms successfully brought integrity into the Mexican electoral system. 77
More information on the legal framework for elections can be found in Legal Instruments (Doctrine/Theory).
