As the World Justice Project’s Rule of Law Index® illustrates, a country’s adherence to international standards for the rule of law depends on both written laws and actual compliance. Governments that respect and enforce the rule of law and actively work to ensure equal opportunity for all citizens will be more successful in protecting human rights and, importantly, will be perceived as being more fair and legitimate. This notion is enshrined in international public law, such as the International Covenant on Civil and Political Rights (ICCPR), which states that every citizen shall have the right and opportunity to take part in the conduct of public affairs by voting in secret in genuine, periodic elections. This requires a clear electoral legal framework that respects the rule of law. Further, an effective electoral complaints adjudication system must be in place to lend legitimacy and credibility to an election, and also to function as a peaceful alternative to post-election violence.
In an effort to assess and support the resolution of election complaints and disputes, IFES has identified seven global standards for effective electoral complaints adjudication:
- A transparent right of redress for election irregularities
- A clearly defined regimen of election standards and procedures
- An impartial and informed arbiter
- A system that judicially expedites decisions
- Established burdens of proof and standards of evidence
- Availability of meaningful and effective remedies
- Effective education of stakeholders
Some countries, such as Mexico, focus mainly on addressing administrative and campaign finance problems, while individual criminal penalties and procedures are underutilized (and frequently overlooked by election observers). This approach, prevalent in developing and advanced democracies, focuses on the administration and oversight of elections. In the case of Mexico, this function is conducted professionally and effectively. However, criminal legal frameworks are weak, prosecutors are under-resourced and political actors have little incentive or will to push for reforms. As a result, individuals can criminally influence the political process with impunity.
The Universal Declaration of Human Rights notes the importance of the “right to an effective remedy by the competent national tribunals for acts violating the fundamental rights [such as voting] granted him by the constitution or by law.” This language is mirrored by most major international legal documents. We read the right to an effective remedy, within the electoral context, to include both administrative and criminal proceedings and states must address both to have in place meaningful, effective remedies.
Courts might also find it difficult to make a clear distinction between purely political allegations and legitimate complaints. Some candidates may refuse to accept defeat, and make frivolous and unsubstantiated charges, whereas others may have valid grounds to justify a complaint. Resolving these questions fairly and with finality may be the difference between a legitimate, stable transition of power and descent into violence. While there are clearly difficulties in determining whether a system provides adequate remedies in response to electoral irregularities, an election complaint adjudication entity that establishes guarantees for a timely decision, a legal justification, a final decision that is no longer subject to appeal and effective remedies for both administrative irregularities and criminal behavior, will go a long way to meeting the subjective standard of “fairness.”Tags: