(DRAFT) CONCEPT PAPER DEVELOPED AND PRESENTED BY OROZCO HENRÍQUEZ AND DR RAUL AVILA TO EDR EXPERT GROUP WORKSHOP HELD IN MEXICO CITY, 27-28 MAY 2004 OPPORTUNITY, SCOPE AND METHOD OF THE HANDBOOK AND OTHER RELATED MATERIAL ON ELECTORAL DISPUTE RESOLUTION SYSTEMS
CONTENTS I. Justification 1. Context 2. Empirical background 3. Comparative theoretical overview II. Methodology 1. Specific objectives 2. Expected results 3. Beneficiaries 4. Strategy for implementation III. IV. Structure and contents of the Handbook Bibliography
Introduction Electoral dispute resolution (EDR) is a critical issue which impacts on the extent to which elections are considered as free and fair. Since disputes are inherent in elections all over the world, EDR mechanisms that are put in place should be effective to deal with any challenge that arises during any stage of the electoral process. This concept paper aims to provide a methodological framework for a comparative global study on contemporary electoral dispute resolution mechanisms or systems. The development of this concept paper has been facilitated by the Electoral Tribunal of the Judicial Branch of the Federation (TEPJF/Mexico) within the context of an existing cooperation agreement between TEPJF and International IDEA. The concept paper forms part of IDEA s thematic work in the electoral field in general, and the electoral dispute resolution in particular which aims to study EDR mechanisms and processes around the globe with a view to highlighting the strengths and weaknesses in each EDR system. This project is expected to produce a handbook and other related by-products on EDR which can be used by political and electoral decision-makers in creating and strengthening electoral dispute resolution structures. The paper has been divided into four parts: i) justification of the relevance of researching and publishing a handbook on this topic; ii) research methodology for the handbook; iii) the structure and content of the handbook; and iv) the bibliography. I. Justification 1. Context. There is growing international consensus, particularly in political and legal circles, that the principle of free and fair elections is a core value of electoral democracy. In fact, this principle is contained in key international instruments and also regional protocols which deal with issues of promoting human rights, democracy, and good governance. In addition, the principle has been incorporated, albeit with different expressions, in national constitutions and other domestic laws. Thus, as electoral democracy has extended to various continents and regions of the globe, the principle of free and fair elections has emerged as the standard for evaluating the extent to which democracy has been attained and entrenched in each part of the world. However, this principle does not operate in a vacuum. On the contrary, in contemporary democratic states, the principle of free and fair elections can only find practical expression through a series of interrelated principles, institutions, guarantees, and rules provided for in the legal order. Such interrelated principles include constitutionality and the rule of law; universal, free, and secret ballot; separation of powers; representative and participatory democracy; judicial
independence and impartiality; freedom of information and free press; political pluralism; transparent and accountable governance, among others, all of which represent values without which free and fair elections would not be possible. Equally, free and fair elections will not be possible, as documented experiences have shown, without credible and effective institutions such as electoral commissions which are supported by a well-trained and professional staff. Beside these elements, there is also a general understanding that effective electoral dispute resolution mechanisms and processes are sine qua non for free and fair elections. Such EDR systems should serve as the ultimate guarantor of the principle of free and fair elections. To fulfill this requirement, the EDR systems should uphold, among others, values of independence, impartiality, and the rule of law. In contemporary democracies, EDR systems play a decisive role in ensuring the stability of the political system and the regular operation of a society s legal machinery. Accordingly, they make a clear contribution to ensuring the implementation of fundamental political-electoral rights and the sustainability of democratic governance. 2. Historical background: The function of electoral dispute resolution has gained importance in recent years, not only in emerging democracies, but also in mature and advanced democracies While in the first stage of European and American democratic constitutionalism the EDR function was the domain of the legislative organs, through the electoral colleges, a gradual reorientation ensued whereby this came to be seen more as a judicial function. To cite some examples, in Latin America, the Electoral Court (Corte Electoral) of Uruguay and the Tribunal for Qualifying Elections (Tribunal Calificador de Elecciones) of Chile were established in 1924 and 1925, respectively, whereas their counterpart entities in the various countries of the region became common in subsequent decades, especially in the second half of the 20th century, and, in the context of the third wave, in the last quarter. In Europe, that function was taken up in England as of 1879 by two judges of the King s (Queen s) Bench Division of the High Court of Justice; whereas in Austria, under the Weimar Constitution of 1919, that authority was vested in the Constitutional Court of Justice; in France, it was vested in the Constitutional Council as of 1958; and in Spain, in the Constitutional Court in 1978. In Mexico, the Electoral Tribunal of the Judicial Branch of the Federation was established in 1996 (Orozco Henríquez, 2000), and in Indonesia the Constitutional Court assumed that function in 2003.
The central role that these entities in charge of constitutional and statutory review of elections have played since the year 2000 is illustrated by the importance of some of the disputes they have resolved: They voided elections for governor (in Tabasco in 2001, and in Colima in 2003), and imposed historical sanctions on the leading political parties (2003), the first decreed by and the second ratified by the TEPJF/Mexico, in recent years; the resolution of the Supreme Court of Justice of Argentina voiding the primary elections in the Partido Justicialista (2003); and the judgment of the Electoral Tribunal of Paraguay adjusting the percentage and placement of electronic polling places to be used in the general elections (2003). Also relevant in this vein are the judgments of the electoral-judicial bodies of Guatemala regarding the presidential candidacy of Efraín Ríos Montt (2003), and those handed down by the electoraljudicial entities of the Bolivarian Republic of Venezuela around the referendum to recall the president, still under way (2003-2004). In other contexts, special mention should be made of the decisive role of the United States Supreme Court in the last presidential election (2000); the decisions of the Supreme Court (Tribunal Supremo) and the Constitutional Court (Tribunal Constitucional) of Spain in relation to the illegality and unconstitutionality of political parties with possible ties to terrorism (2003), as well as the role of the Central Elections Board (Junta Electoral Central) of Spain from March 11 until election day, three days later (2004); and the judgment of the Supreme Court of Justice of the Russian Federation drawing a distinction between general information disseminated by television and election publicity (2003-2004). These precedents clearly underline the legal and political significance that has been attained through the constitutional jurisdiction of electoral oversight authority, and guarantees of electoral legality in the context of the new democracies of the 21st century. 3. Theoretical framework and comparative perspective: While electoral democracy and election systems in general, and the entities entrusted with organizing the elections, in particular, have been studied and documented in a broad, profound, specialized, and professional international and even global bibliography (e.g. IDEA, 1999; López Pintor, 2000), the same cannot be said of the EDR systems. The information available on the EDR systems shows three main lines of research: in the European context, in 1997 IDEA initiated a project to pull together a handbook on EDR systems, with a global perspective. Major strides were made analyzing and organizing the volume based on a series of methodological exercises and abundant material in the form of case studies by experts such as Paul Pretorius, Peta Dawson, and Rodney Harris (Rukambe, 2003). And second, in the inter-american context, the multi-institutional efforts of IDEA, IFES, UNDP, and the Mexican institutions Instituto de Investigaciones Jurídicas, IFE, and TEPJF which organized a seminar in Mexico City in 1999 yielded a first volume that classified
various electoral justice systems in Central, Eastern, and Western Europe, as well as the Americas (see Orozco Henríquez, 2001, based on a conceptualization and typology by Héctor Fix-Zamudio and Judge José de Jesús Orozco Henríquez, 2001). In addition, a second seminar was held in San José, Costa Rica, in 2000, with additional support from the Tribunal Supremo de Elecciones of Costa Rica, and the Inter-American Institute of Human Rights, which looked further into specific experiences of EDR systems in Central America, Mexico, and the Dominican Republic, and which produced a second volume (2000). Secondly, the compendium Administration and Cost of Elections (1999 and 2003), and the project Electoral Process Information Collection (EPIC) (2002) contain only brief indicative references to EDR. Thirdly, some EDR-related work has been done by the Office for Democratic Institutions and Human Rights (ODIHR) during 2000 in central and eastern Europe and culminated in the production of Handbook on Resolving Disputes in the OSCE Area (ODIHR, 2000). Apart from these pioneer efforts in the literature, there is clearly no work that sets forth the principles, structures, characteristics and performance of EDR systems, with a theoretical and comparative framework, in context and a global perspective. And we are farther still from having a work that records, in comparative and contextual terms, in a global perspective, the principles, structures, characteristics, and performance related to the EDR systems. Certainly, there is no theoretical and practical handbook to multiply and make available relevant knowledge on the contemporary EDR to several audiences. II. Methodology 1. Specific objectives The specific objectives of the research project will be: a. To increase knowledge and motivate learning of the procedures for electoral conflict resolution, complaints handling, and means of challenging election results; b. To provide reference materials and guidelines to those who intend to design, establish, reform, and strengthen the EDR procedures and processes; c. To promote the democratic principles of constitutionality and the rule of law, as well as the independence, impartiality, transparency, professionalism, accountability, and effectiveness of EDR systems; d. To highlight the various contemporary models of EDR and how they are set up and perform against principles identified earlier; e. To emphasize the positive experiences of the various EDR models in the context of their respective legal traditions and models, innovations at the national level, as well as best practices in EDR;
2. Expected results This project is expected to produce: a. an easy-to-read, practical, and informative handbook that sets forth principles, structures, typologies, functions, performance, alternative methods, cost considerations, and policy issues in the area of EDR, and which would become a key reference for studying, understanding, and improving them; b. possibly, a second volume made up of the case studies which, in summary form, are incorporated in the Handbook, so as to better understand the strengths and weaknesses of the EDR systems in each country; c. a data base that contains all the information collected, organized, and analyzed in the course of preparing the handbook and tits second volume; d. a new topic for inclusion in the electronic compendium on Administration and Cost of Elections (ACE) and relevant IDEA tools. 3. Beneficiaries Various types of actors would benefit from the existence of a handbook with these characteristics (as well as the secondary and tertiary by-products). Beneficiaries of this handbook and related materials will include: electoral management bodies; political and electoral decision-makers; legislators; government leaders and officials; civil society organizations; researchers and academics; mass media; international observers; inter-governmental organizations and international non-governmental organizations in the area of electoral assistance and promotion; and, of course, the citizenry. 4. Strategy for implementation The strategy for producing the handbook (and other by-products) will follow these guidelines: (a) (i) (ii) The development of the handbook structure along the following lines: An introduction, based insofar as is pertinent on the introductory section of the work by Paul Pretorius and reviewed by Peta Dawson. A chapter that not only sets forth but also explains, based on the pertinent international and domestic law sources, and the relevant professional bibliography, the minimal general principles (free and fair elections) and other principles that should be guaranteed by a political-electoral system so as to make it possible to consider it democratic (whether democracy in transition or a consolidated democracy).
(iii) A chapter with a conceptual framework that would define the main expressions to be used, particularly the expression EDR, as well as the relationship between EDR systems and the guarantees for holding free and fair elections, as well as the other principles involved, and the criteria for evaluating the performance of the respective EDR systems. (iv) A typology that would seek to understand the various configurations of the EDR systems. Comparisons would be based on where the institution of last resort in charge of resolving election disputes is situated within the structure of the state (national legislature; regular supreme courts that are part of the judiciary; constitutional courts; electoral tribunals, be they autonomous or under the judiciary, or ad hoc or independent commissions, in the understanding that such types of models often combine with other means of judicial challenge that must first be exhausted). The typology would have to be representative in a global perspective, consider stability of the institutional structures over time, as well as the various legal cultural traditions or families, and institutional configurations. The following typology is proposed, in principle: Model Sub-model Country Region Level of democratic consolidation Legislative Australia Oceania Advanced United States Americas Advanced Italy Europe Advanced Switzerland Europe Advanced Regular or judicial courts India Asia Advanced United Kingdom Europe Advanced Tanzania Africa Consolidation Electoral Tribunals Autonomous Costa Rica Latin America Consolidation Nicaragua Latin America Consolidation Part of the judiciary Argentina Latin America Consolidation Brazil Latin America Consolidation Mexico Latin America Consolidation Constitutional Court Germany Europe Advanced
Burkina Faso Francophone Africa Consolidation France Europe Advance Indonesia Asia Consolidation Taiwan Asia Consolidation Transitional Bosnia Europe Consolidation Cambodia Asia Consolidation Palestine (?) Middle East Consolidation Alternative solution South ( 94) Africa Africa Consolidation (v) (vi) After each type of EDR system and its explanation would follow, in summary form, one to three representative case studies (in the style of the Handbook of Electoral System Design). A conceptual and empirical review of the types of disputes or electoral acts and causes for voiding elections on which the study will focus, and which would be limited to those that arise in the election process (before, during, and after an election), though noting as well the most significant of those that occur outside of this context. In addition, the paper will attempt to classify some points that appear, a few lines down, under the topic procedural guarantees. (vii) A chapter that summarizes the main findings and conclusions, based on the typology and case studies, and that establishes the most important recommendations for the handbook s target audience, especially in the context of unconsolidated democracies. Case studies with a wide geographical spread, based on the typology given above and also the various legal tradition of the world, will form part of the handbook. The case studies will follow the following broad guidelines and cover the following issues: (i) (ii) (iii) (iv) Description of the political and legal system (form of government, electoral system, and party system, with the relevant constitutional and statutory references); Social, economic, and cultural context in which the system operates; Political and legal context that determine the current status of the EDR; Organizational guarantees (autonomy of the entity of the EDR structure,
independence and impartiality of its members, requirements for eligibility and how they are appointed, stability in the post, professionalism and specialization as the case may be, transparency, responsibility and accountability, budget and relevant functions of the system for ensuring that election are held in keeping with constitutional and statutory requirements); (v) Procedural guarantees (procedures and qualifications for filing a petition, access to justice and rights of defense, securing protection for electoral rights, due process of law, terms for presenting and ruling on challenges, means of proof and systems for weighing evidence, time-frame of the procedures, transparency and publicity of the procedures, grounds for nullity of elections, finality and effective enforcement of the decisions); (vi) Contextual guarantees (role of the social actors mass media, civic organizations, non-governmental organizations, educational institutions, lawyers organizations, business organizations in relation to the justice system and how these actors promote observance of principles of free and fair elections); (vii) Assessing the credibility and efficiency of the EDR systems; (viii) Assessing the strengths and weaknesses, positive experiences, and, as applicable, best practices of the respective EDR, and recommendations for improving them. Each case study should be no longer than 50 pages. The case studies will provide input for the second volume and the data base, plus executive summaries of three to five pages each, to be included in the handbook, which should not exceed 200 pages (in approximately the same style as the Handbook of Electoral System Design). In addition, tables should be designed to set forth the information in comparative format. (b) The second part refers to the critical path for achieving the expected result, and includes the following: (i) Distribution of this concept paper by IDEA to the expert group members invited, on Monday, May 17. Name Gender Nationality Profession 1 2 3 4 5 Judge Orozco Male Mexican Judge Mr. Raul Ávila Male Mexican Academic Judge Ismael Hussein Male South African Judge Mr. Vishan Krishnadasan Male Sri Lanka Attorney Ms. Peta Dawson Female Australian Researcher
6 7 Mr 'Juan Ignacio Garcia' Male Chilean E-practitioner Dr. Liza Handley Female American Academic Dr. György Szoboszlai Male Hungarian E-Practitioner/Lawyer 8 9 Joram Rukambe Male IDEA staff (Namibian) EDR Project Manager (p) Pending (ii) (iii) The preparation of a first draft questionnaire on topics related to the EDR systems to report on the case studies, and to distribute it among expert consultants for their discussion. Holding a Workshop of the EDR Expert Group on EDR in Mexico City, Radisson Hotel, 27 28 May 2004, for the purpose of discussing and improving on the concept paper, as well as the questionnaire, and to establish the final terms of the content, preparation, timetable, and publication of the first part, with the theoretical framework and empirical bases (case studies) for the handbook. 111. Structure and contents of the handbook The third part of this concept paper proposes a draft general table of contents for the two volumes. * Volume I General table of contents 1. Introduction Objectives of the handbook Methodology Contents and how to use the handbook II. Theoretical framework: Electoral democracy and the principle of free and fair elections III. IV. Conceptual framework: EDR Systems Typology of the EDR systems and summaries of each case study
V. Findings and recommendations VI. Bibliography * Volume II Case studies
IV. References LÓPEZ Pintor, Rafael, Electoral Management Bodies as Institutions of Governance, UNDP, September, 2000. OROZCO Henríquez, José de Jesús, Sistemas de justicia electoral en el Derecho Comparado, in: J. Jesús Orozco Henríquez (ed.), Sistemas de Justicia Electoral: Evaluación y perspectivas; IFE, PNUD, IIJ/UNAM, IFES, IDEA, TEPJF, Mexico City, 2001., Los sistemas de justicia electoral en el derecho comparado; in: International seminar on electoral dispute resolution: Comparative perspective on Central America, Mexico, and the Dominican Republic; IFES, TEPJF, TSCR, IIDH, IFE; San José, 2000., El contencioso electoral/la calificación electoral, in: Dieter Nohlen, Sonia Picado, and Daniel Zovatto (eds.), Tratado de derecho electoral comparado de América Latina (Treatise on comparative electoral law of Latin America); IIDH, University of Heidelberg, TEPJF, IFE, FCE, Mexico City, 1998. Rukambe, Joram, Memorandum Andrew Ellis, November 2003. Pettit, Denis, Resolving Disputes in the OSCE area: Towards a Standard Electoral Dispute Monitoring System, Warsaw, 2000.