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Topic IndexConstitution

Reasons and Functions of Constitutionalisation

It has often been said that in democratic systems electoral regulations are just as important, functional and tend to be just as permanent as the laws of succession in absolute monarchies.

In effect, insofar as being an instrument that imposed access to power in accordance with dynastic rules, the laws of succession were not considered modifiable by any specific king who reigned by virtue of these very regulations. For this reason Bodino believed that, along with natural law, they were the only limits to the power of absolute monarchs. In coherence, they were constitutionalised very early on and acquired a high degree of stability. For example, article 57.1 of the Spanish Constitution of 1978, which regulates the rules of succession to the Crown, literally comes from the Alcala Rules, Ordenamiento de Alcala, of 1217.

In a parallel manner and precisely because its function is the same--to ordain access to power peacefully--there is a dual universal tendency in the treatment of electoral regulations:

The most important elements of the system are constitutionalised, which make them unavailable to the ordinary legislator. Pro futuro delegating elements are introduced, so their development has to be by parliamentary law and often by qualified majority, seeking an integration of the main political forces in the elaboration of these regulations.

But over and above these legal considerations, it can be said beyond doubt (Noehlen) that there is great stability in the electoral systems. This is the case in the majority of the European systems, with the exception of France and recently Italy, whose basic lines have not been reformed since the victory of universal suffrage and in some cases, have even been 'recovered' after authoritarian periods between wars.

Empirical Study of the Scope of Constitutionalisation

Electoral elements that were introduced into the various constitutions, however, have not at all been uniform. We will try to establish some general categories by means of ten selected elements of the electoral system in a broad sense and their application to four different groups of countries. The following are the specific elements chosen for this empirical analysis:

definition and characteristics of voting rights

other dispositions of active and passive suffrage (age, ineligibility, etc.)

total number of representatives

constituencies

electoral formula or principle (proportional, majority)

form of expressing the vote

dispositions on the electoral roll

provision for institutions of control (other than ordinary courts)

rules relevant to the funding of electoral campaigns

reference to electoral laws, including their nature as a general electoral code and their rigidity in the face of reforms.

The countries whose constitutions are being studied, can be grouped as follows:

member countries of the European Union (lower houses);

main Latin-American Countries (parliamentarian and presidential elections)

East European Countries

other countries whose legal tradition is based on common law

The following tables show the electoral contents of their constitutions or constitutional laws:

Table A. Electoral Elements of the Lower Houses Regulated by the Constitutions of the European Union Countries

GUIDE TO THE CONTENTS OF THE TABLES

1- Definition and characteristics of the right to vote.

2- Other provisions on the right to active and passive suffrage (age, ineligibility factors, etc.).

3- Total number of representatives.

4- Constituency.

5- Electoral formula or principle (proportional, majority) .

6- Form of expressing the vote.

7- Provisions regarding the voters register.

8- Provision for control organs (other than the ordinary Courts).

9- Rules pertaining to the funding of electoral campaigns.

10- Remission to electoral Laws:

remission

nature of general electoral code

rigidity towards reforms

Table 1: ELECTORAL ELEMENTS OF THE LOWER HOUSES CONTAINED IN THE CONSTITUTIONS OF THE EUROPEAN UNION MEMBER COUNTRIES (1).

Germany	38.1	38.2								38.3
Austria	26.1	26.1,4,5		26.2	26.2		26.2 y 7	26.6		26.1
Belgium	64	61	63		62					62, 63
Denmark	31	29, 30	28							31
Spain	23, 68.1	68.5, 70	68.1	68.2	68.3					82
Finland (2)	11
France (3)	24.2									25
Greece	51.1,5	51.3	51.3							51, 54
Holland	53.2	54, 56	51.2		53.1					59
Ireland	16&1	16&1			16&2	16&2				16
Italy	56	56	56
Luxembg.	51.5	52, 53	51.3	51.6	51.5	51.6				51
Portugal	116.1	153	151		116.5, 155		116.2		116.3.d	151
Sweden (4)	III.1,2	III.2	III.1			III.1	III.2	III.11		III.12

NOTES:

(1) Great Britain has been excluded from this chart, due to the peculiarities deriving from the non-existence of a written constitution. Neither does a written constitution exist, nor do the materially constitutional regulations, such as the Parliament Act of 1911 and the Parliament Act of 1949, refer to the subject of elections.

(2) Finland does not possess one sole constitutional text, and it is organised according to various basic laws or constitutional laws, among which the Act on the Form of Government promulgated on 17 July 1919, stands out and is the one considered here. It has to be pointed out, however, that some constitutional regulations on this subject are found in the Parliament Organic Act (the last significant reform of which took place in 1993), along with the characteristic contents of some parliamentary regulations.

(3) The traditional French double round majority system by voting is, however, envisaged in the present Constitution, of 3 June 1958, for the election of the President of the Republic (art. 7).

(4) Just like Finland, Sweden does not possess one sole constitutional text, and it is organised according to several constitutional Laws of the Kingdom, among which the Act on the Form of Government, also denominated Instrument of the government (of which the last significant reform took place in 1994) stands out. This regulation is under consideration here.

Table B. Electoral Elements Regulated by the Constitutions of the Main Latin American countries

a = Lower House b = President	1	2	3	4	5	6	7	8	9	10
Argentina 94	37	48 89	[sgl dagger]	a)45-47	a) d)maj. 2r.		47	*64		Yes Yes No
Bolivia 94	a)60 b)86,90 c)200fol. gen.:219	a)61 b)88fol. gen.:220	60	60	60		61	67 225fol.		60 227
Brazil 88	14	14.3fol.		45	45		14.1	118fol.	19.3	16
Colombia 91	258fol.	99 a)177-9 b)191-7		176	a)263 b)190		266	264fol.	109 165-6	Yes Yes 152
Costa Rica 96	a)93-5 b)138	a)108fol. b)131	a)106		a)prop. b)maj.			9 99fol.	96
Chile 97	15 a)43	16 a)43,54 b)25	43		b)25			27 84fol.		Yes Yes 63
Ecuador 96	a)79	a)80fol. b)99, 104	80	79	b)99			137		Yes 1^st TP Yes Yes
El Salvador 92	72fol. 78	74fol. a)126fol. b)151fol. 81fol.		79	A979 b)80		77	208fol.	210	Yes
Guatemala 85	136	a)162fol. b)185fol.			a)mixed b)maj.		136	169		Yes Yes Yes
Haiti 87	52.1 89fol. b)134	91 131fol. b)135	90	90	a)90.1 b)maj.		191.2	191- 199		Yes Yes: 191.1
Honduras 91	44,46 189.3	a)198fol. b)238fol.			a)44 b)maj.		54fol.	51fol. 58	49	Yes
Mexico 95	41 b)81	55 b)82	52	53	a)52 b)54		41.iii	41.iii 60 99	41.ii	Yes 60
Nicaragua 95	132 146	a)134 b)147	132	132	a)132 b)146fol.		173.11	170fol.		Yes 132
Panama 94	129 a)141 b)172	147 b)174	141	141	141,29 b)maj.		137.5	136 138	135	Yes 130
Paraguay 92	118 182 187	a)120, 197 b)228, 235			a)118 b)230			273-275		Yes
Peru 93	31 b)110	90fol. b)110	90		b)110fol.		30 176	176fol.		Yes :90
Puerto Rico 52	6.4 a)3 b)4	6.4 a)3.5y6 b)4.1	3.2 3.7	a)3.3y4	a)mixed		6			Yes Yes
Dominican R 66	17 b)49,88 91	22 b)50		24	24 91			92		Yes
Uruguay 97
Venezuela 83	110 113 a)151 b)182	111fol. a)140, 152 b)182			113 a)151 b)183			113		Yes Amendment2

a) = regulations referring to the Lower House b) = regulations on the President of the Republic

Table C. Electoral Elements Regulated by the Constitutions of the Main Eastern European Countries

Belarus 94	38 66fol.	64fol. 69 a)80	a)80 b)96		a)80 b)97fol.	72
Bulgaria 91	10 b)93	42 a)65 b)93	63		b)93	66,149 (Cons.Crt.)	42
Czech Rep 93	18	17 a)19fol.	16		18		20
Croatia 90	45 a)71 b)95		71	71	a)71 b)95	125 (Cons. Crt.)	72 - 83,95
Slovenia 91	43 a)80	43 b)103	80		b)103		80 80 80
Slovakia 92	30 a)74	a)74	73				30,74
Estonia 92	56 a)60	57fol. a)60	60		a)60		Yes
Hungary 96	71	70 a)40					71 71:No 71:Yes
Latvia 22	6	8fol.	5	7	a)6
Lithuania	55	34 a)56 b)78fol.	55		b)78		34 55
Russia 93	b)81	81 97	a)95		b)81		a)95 b)81
F.R. Yugoslavia	a)80		a)80	a)80

NOTES

Translated texts of the constitutions of Ukraine and Poland could not be found. (May 1997).

The following common traits can be pointed out:

Constitutional regulations on electoral matters are relatively scarce;

Remission to the electoral laws leaves the regulation of the essential aspects of the electoral processes and even in a significant number of cases, the principle of the election of the lower house representatives, to the latter;

Neither are specific constitutional organs of control or electoral administration envisaged in the constitution, nor is the funding of the political parties in the electoral processes regulated.

Table D. Electoral Elements Regulated for the Lower Houses by the Constitutions of Some Countries with a Legal Tradition of Common Law

CONSTITUTIONAL CONTENTS ON ELECTORAL PROCESSES

NOTES:

The states whose constitutions this table refers to, has one common element: they are all former British colonies (obviously, with the exception of Japan).

The date referred to, is the date of the last constitutional revision.

Some of the states do not have a constitution in the formal sense of the word, but they have a number of laws of a constitutional rank: Canada, New Zealand and Israel. Reference is made to such law with a constitutional rank that regulates the electoral processes for the Lower House.

	1	2	3	4	5	6	7	8	9	10
Australia 88	24	30,34 41 44fol.	24 26fol.	26 29						29 31: no
Bahamas 73	46	47fol. 67	46	68fol.				51		46 no
Belize 78	92	57fol. 85fol. 92	56	88fol.			88,93	88		56 no
Canada 1867	3		37 51fol.	40			8			41 41: no
India 96	81	84 102	81 330fol.	81	81		82
Israel 87	4	5fol.	3		4					4
Jamaica 62	36 65	37 39fol.	67	66fol.	66					36,38 no
Japan 94	15	43fol. 54fol.		47	47					43fol.
New Zealand 86	10									10
South Africa 97	19 46	47	46		46			181 190fol. 194	236	46

Conclusions

The following conclusions can be reached from an overall evaluation of the facts noted:

All the countries considered have constitutionalised the definition and the characteristics of active and passive suffrage rights as a basic right of all citizens. It must not be forgotten that the history of electoral law--and democracy itself--is the struggle for universal, free, equal, direct and secret suffrage. In all basic regulations analysed it was considered suitable to embody this definition:

in some of them, in the oldest democracies, because it reflects and consolidates the democratic progress that has been made

in others, the most recent ones, as a means of a formula of solemn affirmation of democracy, which is no longer conceivable under any other form of suffrage

The majority of the constitutions likewise introduced other regulations relative to active and passive suffrage. However, the contents vary widely. There are texts that introduce objective regulations on voting rights (age, ineligibility due to certain positions held, etc.). Others, particularly in the Latin American sphere, reflect detailed regulations on multiple questions, which echo the recent history of the countries (for example, prohibitions of former presidents are frequent, de facto or in previous regimes; so is the ineligibility of priests or military officers).

Practically all the constitutions analysed make reference to the law as the ideal instrument for the regulation of the rest of the electoral subjects. There are also a considerable number of countries--especially in Latin American but with examples in all the others--that envision, in addition, a qualified majority for the approval of this legislation and/or the regulation of the entire subject in one single law which will serve as an electoral code for elections as a whole held by direct universal suffrage.

The situation is considerably different, however, with relation to the elements of the electoral system in the strict sense of the word. Even though the majority of the constitutional texts regulate aspects such as the electoral formula, or principle, and the total number of representatives (38 and 36 of the countries studied), the number drops considerably (24) with reference to the constituency, which is a key aspect in the process insofar as it decisively conditions the application of the electoral principle. An even more striking fact is that only three constitutions (Ireland, Luxembourg and Sweden) include the form of expression of the vote, an element that defines the relation between parties and citizens when it comes to forming the area of electoral freedom, or personalisation of votes. This has perhaps been regarded as an element that is too sophisticated, especially in regulations drafted after an authoritarian period, in which the main priority is the strengthening of democracy through the political parties.

Regarding the procedural aspects considered, the following division can be made:

Very few countries outside Latin America make any reference whatsoever to the electoral roll. However, in many of them it is regulated in great detail.

Almost the same can be said about dispositions on electoral funding. Only Portugal and South Africa contain these in the form of general principles, as opposed to the detailed regulation present in many of the South American countries.

There is a recent tendency in very diverse regions to constitutionalise electoral control and/or administrative bodies for electoral processes. This phenomenon has once again reached its maximum expression in Latin America, due to the lack of professionalism, efficiency or legitimacy of the ordinary administration.

Typical Contents in the Constitutionalisation of Electoral Elements

In view of the above, one last thought comes to mind: does an ideal electoral content exist that should be constitutionalised? The answer is highly complex and should be the target of an analysis, paying attention to the historical, political and social factors of each country under consideration. However, from a strictly legal point of view, it can be stated that there is a certain risk of fossilising electoral regulations through excessive constitutionalisation of its elements. This risk is particularly serious in countries that draw up their constitutions following transition elections from an authoritarian system.

We began this section by pointing out the parallelism between succession laws and electoral laws and taking the regulation on the Spanish Crown as an example. It is worthwhile to point out a further parallelism. The regulation on succession of 1217 in Spain contains some discriminatory principles regarding gender, which would be impossible to apply to any other aspect of the legal system. An effort was made to maintain the regulation exactly as it was, and as a consequence it has become dissociated from social reality. There is no doubt that the same phenomenon could occur should an excessively detailed constitutional regulation be drawn up conditioned on the particular circumstances of the moment.

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