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Strasbourg, 19 December 2000
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CDL (2000) 103
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE
COMMISSION)
COMMENTS
ON THE ARMENIAN ELECTORAL LAW
AND PROPOSED AMENDMENTS
AFTER THE VISIT OF THE VENICE
COMMISSION
TO EREVAN ON 15-18 NOVEMBER 2000
Presented
by
Mr Bernard OWEN
at the 45th Plenary
Meeting of the Commission
Venice, 15-16 December 2000
The 1999 law
is an improvement over the previous one as our Armenian friends were aware of
its weaknesses. In 1997 four drafts
were presented but the March 1998 presidential elections retarded the final
draft.
Certain articles in the
current version should be amended to simplify procedures, for example the way
in which the voting takes place, or to explain clearly procedures that are
complex and difficult to follow, for example the adjudication/appeals system.
The latter provides for the competency of law courts and superior commission.
In order to clarify this system, we have drawn two tables that we suggest be
placed in an annex to the law.
1. The Voter Register
Armenia’s choice of voter
registration is part of a current international trend. Armenia has a permanent voter register, one
which is liberally construed as far as « transparency » is
concerned. The permanent list is
reviewed twice a year with another review 35 days prior to election day (Article 9.9). This is quite a burden on those that have to deal with this
matter. On this point the Armenian law
goes too far because one review a year is considered sufficient. In addition, the fact that citizens who are
not on the register can be included up to 5 days before the election day (Article 101) is also quite liberal. But
it is also a more reasonable provision than that of the previous law where
registration was possible right up to election day and could only burden the
work of electoral commissions at an already very tense moment.
The time-frame and
administrative distribution of information having to do with voter registration
(Articles 12, 13 and 14) is logical
and includes the usual checks at precinct level. Article 10.3 deals with the military, and their families, who are
included in normal precinct registers.
This registration is based on the data submitted on a « general
basis » by the authorities of the military unit. The law should have included a deadline for the data submission
to the relevant Precinct Electoral Commission (PEC) and Regional Electoral
Commission (REC). As far as the military that are stationed in barracks 50
kilometres away from the nearest polling station, the register is compiled by the Head of the military unit and
submitted to the relevant regional commission 20 days before voting (We will
deal later with the military vote).
According to Article 12 the voter register should be
displayed in a « place visible to
everybody », another step in an already transparent process. The register is shown to the public
until 7 days after the election. Article 14 states that a voter can request
that changes be made (by the community head) if there are inaccuracies
concerning himself or others.
The identification documents
other than passports mentioned in Article
55.3 are not clearly designated but many electoral laws do not go into
greater detail about this issue. There
are exceptions who do so for special reasons.
As for Armenia, the word « document » means a great variety of
them because of internal and refugee problems; for example, Soviet, Russian,
Azerbaijan, Karabagh, a non-inclusive list which could not at this time be
written into a law.
2. The Time-frame
Article 117 gives the time-frame of the steps that have to
be taken from the moment an election is called to the registration of
candidates. This article simplifies the
work of those who have to apply the law because the information contained in it
is usually (in other electoral laws) spread in different articles throughout
the law.
3. Pre-election
campaign.
Article 18.23 deals with the pre-election campaign. It provides the electoral commissions with
the means to appeal against violations (18.8)
but no mention is made of what should be available to a candidate if there are
violations of his rights (for example: if local authorities deny the candidate
the room that he has tried to reserve for a meeting).
4. Permanent Election Commissions
Armenia understood quite
early the usefulness of having permanent electoral bodies. The Armenian approach is pragmatic : a
three-member permanent body at the national and regional levels. The nature of
the commissions is mixed, with 3 members designated by the government, the
others by the parties represented in parliament and the first four other
parties contesting the election having obtained 30.000 signatures. Because it
is unknown beforehand if all parties represented in Parliament will either
reach the required number of signatures or will even run for the elections, the
law does not give a fixed number of members of the CEC and other commissions (Article 35).
Fraud is difficult but, of course,
not impossible even when with members of commissions belong to different
political parties. On the other hand,
commissions that are only made up of party representatives can lead to lengthy
and protracted discussions that slow down decision-making. Efficiency is an
essential element of credibility vis-à-vis the voter and therefore an essential
element of the process. The mixed
nature of the commissions adopted by the new law would seem the right way of
doing things. Note: the secretary of the old CEC has been included in the new
CEC which brings continuity to the electoral administration.
The Chairman of the
commissions has significant powers but it must be borne in mind that, rules and
regulations are, in the
way the Armenian CEC has worked in the past, decided by a vote of the whole
commission after heated discussions while the media observe. In 1998, legal or technical experts who were
among the audience were at times asked to give their opinion.
5. Recall of Commission Members
The procedure for the recall
of commissioners when the mandate comes to an end is provided for in Articles 35.4 and 38.2.2-3-4. The different
procedures are explained in a logical manner.
Some concern has been raised by this right to recall. It is a fact that
the recall of elected members of parliament has disappeared in Western
democracies because there is a two level reason for their election :
1. Nomination
by the party.
2. Election
by the voters.
The CEC members are not
elected by anyone, they are only designated by the party and they represent the
party even if they have to act for the general interest.
The Chairman of the CEC (who
is elected by the members of the CEC) has the right (Article 39.3) to hire a staff whose task is clearly limited by the
law to « auxiliary works ».
It is then « headed by the Secretary of the Commission » (Article 39.3) which means that that this
staff will not be engaged in decision-making or activities of a sensitive
political nature. Should the whole
commission have a say in the choice of the technical staff ? Democracy is not only about
« multiparty control » in the commissions, it is also about efficient
decision-making. The law gives the Commission decision-making power on the
crucial political issues and in so doing, is in conformity with democratic
values.
6. Transparency
An efficient way to make an
election more transparent is to communicate information on the participation
(turn-out) on polling day from the polling station to the regional commission
and, in turn, to the CEC. Article 7.6, deals with this matter.
Data on the turn-out is transmitted every 3 hours and published by the CEC from
11a.m. onwards. This information is
taken up by live TV programs every 3 hours.
For this reason every precinct station should have a telephone.
It is most useful to have
regular data on the turn-out because this makes it more difficult to stuff
ballot boxes at a given time without the local proxies or those at the regional
level not being aware of the fraud.
7. The Required Signatures for the Registration of Candidates
The amendments have reduced
the number of signatures required to register as a candidate. It is a liberal measure. Nevertheless, when making comparisons at the
international level, it is a true and surprising fact that even the most
peculiar parties obtain easily large number of signatures. This holds true for different types of
democracies such as Russia or France.
In principle, signatures are asked-for in order to limit the number of
fancy parties. As a matter of fact, the
more efficient and long-term method is the electoral system itself (we will
look into this later).
The number of signatures
obtained by parties not represented in parliament have an important impact on
the composition of electoral commissions (even until the following
parliamentary elections) as the 5 « new » parties that get the most
signatures are included in the commissions.
This is a liberal measure but gives an exaggerated importance to signature
collection. It can be expected that
very weak parties will make huge efforts not just to be registered but to get
into the commissions. Another way
should be considered.
We have witnessed the 2%
random sample method of checking signatures by different party members and we
can attest to its validity. Forged
signatures are easy to spot as the same handwriting appears page after
page. The 2% rule is practical either
with a small electorate or that of the Presidential election of the Russian
Federation, where one million signatures had to be collected.
8. Constituency
Boundaries.
Articles 98.1 to 3 provides the rules to determine the
constituency boundaries in conformity with advisable practice, i.e. 15%
difference in the number of voters with reference to administrative
boundaries. However, the way the CEC
should work with the REC (Article 42.4)
in this task is not clear.
9. The Size of the Polling Stations
The terms « precinct
centre » and « electoral precinct » are not clear in Article 15 and 16. It could almost be
argued that electoral precinct could have a number of electoral centres
(polling stations).
In the case the limit of 3,000 voters per electoral
district (article 15.6) would not be too high as it can be argued that an
electoral precinct of 3,000 voters could be divided into two precinct centres
of 1,500.
10. The Voting Procedure
A. Doing Away with Coupons
We consider that the major
positive change in the law is the elimination of coupons. The coupons that were in the old law meant
that 3 parameters were used to determine the result of the elections. The task of the electoral commissions was
made even more difficult by the fact that the counting of the coupons was done
at another level than the ballots and number of signatures. However skilled, whatever their nationality,
the administrators of that type of election law would very likely run into
trouble.
This new law does away with
coupons but keeps the notion of working out the level of inaccuracies of the
vote. This time, though, it is done at
the precinct level (before it was at the regional level) and in a much simpler
and logical manner. Nevertheless, there
are a number of points to be made on this issue.
Article 60.4 provides for the way in which the inaccuracies
are worked out:
1) you
compare the number of ballots given to the PEC with the total number in the
ballot box and the cancelled ballots. The difference represents the first
inaccuracy.
2) you
compare the signatures in the voter register with the number of ballots in the
ballot box. The difference in absolute number is noted as the amount of the
second inaccuracy.
3) both
first and second inaccuracy are added and you get the total amount of
inaccuracies for the precinct.
Electoral laws do not
usually go that far and only number 2 is considered as a check on the accuracy
of the process. Even then it is not
easy to find two figures exactly the same not for reasons of fraud but due to
the difficulty for human beings to come up with the same results when adding
anything (except for professionals like bank clerks).
The drafters of the law do
not seem to have considered the practical consequences in detail. Let us assume that the number of signatures
on the voter register differ from the number of ballots found in the ballot box
(Article 60.4.2). There are no criteria to define which of
these two numbers will be the correct one (Article
60.4.3). It is an open question if
the final decision on the influence of inaccuracies on the election results
will be in the competence of the election administration or the court.
The role of RECs in the
aggregation phase needs to be clarified, in particular the meaning of a clause
in Article 42.1.9-19 stating that the
REC « clarifies and summarises the
election results » .
B. Voting
When compared to the
previous law, the voting procedures have been greatly simplified. The ballots have only 3 signatures on the
back. Article 56.2 requires the
stamping of the ballot by a member of the commission after the ballot has been
handed out to the citizen. The stamp,
bearing 4 digits, « shall not come out of the limits of the
ballot ». What happens if the
member of the commission is nervous and the stamp is not within the limit of
the ballot ? is the ballot void ? Applying a stamp to the ballot is
multiplying controls unnecessarily and doing so increases the possibilities of
mistakes and even of fraud.
It is common practice to
have no one touch the ballot once it has been given out to the voter; the
reason for this is that the commission member who knows who is the voter can
identify the ballot by applying the stamp in a certain way so that during the
vote court it will became clear the way the designated voters have voted.
Articles 55.1, 55.2,
and 57.4 deal with the verification
of the name of the citizen on the voter
register : one check before handing out the ballot, the other before dropping
the ballot in the box. The second check
is useless, wastes time and, then again, leaves the door open to the violation
of the law, for example : if there are too many voters waiting.
11. The Vote Against « All
candidates »
The Armenian law has adopted the Russian Federation’s
approach to having a « blank vote » by introducing « the vote
against all candidates ». We must
admit that when it first appeared in the Russian Federation we had doubts about
it. We were afraid that in an evolving
democracy too many citizens would be tempted to vote « against
all ». But our fears were
unfounded. The vote « against
all » has been kept at a low level and corresponds exactly to what can be
expected from a « blank vote ».
Armenia has thus adopted a measure that many scholars believe should be
included in all electoral laws.
Introducing a « blank vote » is a way to reduce the number of
spoiled ballots and improve turn-out.
There is some truth in
saying that the vote « against all » in the case of only one
candidate competing in the one member constituency has more effect than when
two or more candidates are in competition as the law (Article 116.3) says that in the case of only one candidate, he is
elected if he obtains more than half the votes of the participants. This means that the « lonely »
candidate has to reach the absolute majority of all voters whereas when there
are two or more candidates, a relative majority of expressed votes for the
candidates is sufficient. This should
not be an issue as the vote “against all” is usually at a low level. The only
exception to this would be if a very unpopular “lonely candidate” run for
office and then the absolute majority that is required would be justified.
12. The Vote Count
Every step of the count should be visible if transparency is to be
obtained. The chairman once the ballot box has been opened should not plunge in
his hand and take out the ballots one after
the other. It is preferable to empty the ballot box unto a large table
and make piles of ten ballots then grouped into a hundred and put into a large
size envelope. This enables an immediate first count which can be checked with the number of signatures on the
register and the number of returned ballots.
The envelopes are then taken one after the other and
the ballots opened and put on a pile according to the candidate on the ballot
simultaneously 2 members of the electoral commission put a mark on the
corresponding candidate and list.
13. The
Precinct Protocols
The precinct protocols of
the summarised result of voting (Article
61) include in third position the number of ballots allocated to the
precinct electoral commission.
According to Article 114.7 « The number of ballots allocated shall be
5% more than the number of voters on the precinct voter list ». In practice this means that it is the
only figure in the list that cannot be verified at that precise moment, and
this could lead to difficulties. Was the number of ballots delivered well
checked ? Did they really represent 5%
more than the registered voters ?.
Only figures that can be
checked at the time of filling in the protocols should be taken into account.
14. The Military Vote
When the vote takes place in barracks observers have
difficulties no matter in what country they are in. Unit commanders are reticent to letting observers or political
proxies into military territory.
Armenia is not an exception to the rule and no law will have much of an
effect on this.
Article 54 is quite clear in the way the military have to
vote in normal polling stations : « They
enter unarmed and not in marching order ». But Article 54 does not
mention that conscripts will be granted leave to vote.
During our meetings in
Yerevan we heard remarks on the military vote; two cases were considered :
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Elections that have no territorial significance :
Presidential elections and the proportional part of the parliamentary
elections.
In this case the notion of
“domicile” and not “residence” should be taken into account. A professional
soldier and his family whose legal “domicile” is in the same territory as the
barracks should vote in these two types of elections. Conscripts whose stay
will be short lived and whose previous domicile was with their family should be
able to vote by the post. Postal vote should be held ten days before the
election day. The question then raised is to the efficiency of postal services.
It has to be kept in mind
that the military have to be considered as other citizens with the same voting
rights. The fact that they live in barracks and for variable periods of time
does have consequences but should not limit their rights as citizens.
15. The Electoral System and the number
of M P S.
The definition is given in Article 95 :
· 56
seats are distributed on a list proportional system. The nation is considered
as one constituency. There is a 5%
threshold for seat allocation. The
seats are attributed by simple quotient and the largest remainder method.
· 75
seats are distributed in one member constituencies on a plurality basis.
As time goes on the
electoral system will have an effect on the party system so it is useful to
examine the system with some attention.
The mixed system adopted is in conformity with the norms and tendencies
of evolving democracies. On the other hand, in our meetings, we understood that
there was a feeling in political circles that the number of deputies should be
reduced; this came as a surprise as there is no rule as to the ratio of members
of parliament (MPs) to the voting population :
Armenia has 131 members for
a voting population of 2.2 millions and if we look to different types of
democracies with similar voting populations we obtain the following figures :
Lithuania – 137 MPs for 2.600.000 voters
Ireland ----- 166 MPs for 2.500.000 “
Norway ---- 165 MPs for 3.200.000 “
From this point of view
Armenia is not different to other similar sized states.
It can be argued that member
of parliaments are expensive but it can
also be said that if they are too few then each member of parliament has to
represent and deal with a large number of citizens, so that the representative
ratio is lower.
We have also learnt that
there was a motion to reduce the number of one member constituencies in favour
of member of parliaments elected on the proportional list part of the election.
It is here that we have to face the fact that changes such as these can bring
unexpected and unwanted effects that can jeopardise the whole democratic
process.
Drafters of electoral laws
take into account the experience of other democracies but while doing so should
bear in mind that conditions in the west are quite different than in evolving
democracies. This can lead to substantial differences in party systems that
result from the introduction of similar institutions or electoral systems.
Western democracies have
strong association movements such as trade unions that greatly influence the
way over half of their members vote. This leads to some western democracies
using Proportional Representation to have one or two parties that control such
movements to have almost permanent dominants positions. Citizens of evolving
democracies that ten years ago lived in soviet regimes, where membership of
associations was compulsory, are not prone to join associations. They consider
themselves as free and in their minds associations are associated with the
constraints of the past. Considered from this point of view Armenia should be
compared to the many western democracies with Proportional Representation that
have weak party systems, which lead to government instability. Government
instability is dangerous in countries such as Armenia that are in full economic
social and political crisis.
We also heard that
one-member majority constituencies can introduce into the assembly a person
who’s honesty is doubtful, but this is not a good argument. Party lists are
just as prone to include candidates which in the long run are not above board.
On the other hand, voters can decide on their own who is honest when they have
to choose a candidate in a one-member constituency easier than when they have
to choose an unknown list of names for proportional representation.
To conclude the question of
the number of member of parliaments and that of the electoral system it is suggested
that if there is a consensus to reduce the number of members of Parliament the
same ratio of majoritarian and proportional seats should be kept.
16. MPs’ professional status.
Article 65 of the Constitution should allow member of parliaments
to continue their previous professional activities otherwise we will have
professional politicians or civil servants that have obtained leave while in
office and get their jobs back if not re-elected. Those people have little
experience in economic and other problems and will not have a practical
approach to politics.
Articles 66 and 67 of
the Constitution provide for procedures that can be engaged against member of
parliaments. The Constitution should clearly define immunity from prosecution for
political reasons as opposed to prosecution for reasons related to business
transactions. The immunity of a member
of parliament should concern immunity prosecution for issues of freedom of
speech and political matters and not for criminal matters that are dealt with
in the criminal code.
17. The ballots.
We think it would have been preferable to have only one
ballot with on one side the names of candidates and parties in the one member
constituencies and on the other side the parties that present lists in the
proportional part of the election (the name of the party and the names of the
first four candidates). When you have
two types of election on the same ballot it means that the candidate on the one
member constituency can be on the same line (at the same level) of his party’s
list in the proportional part of the election. In that case independent
candidates would not have a party list at the same level. To have one ballot
for both the proportional and the majoritarian segments of the election would
create in the voter a stronger psychological link between them. The psychological link should be taken into
account when the aim is to create a strong party system.
As it stands the mixed
system providing for two ballots for the election of the National Assembly
presumes that two parallel balloting processes will have to take place. The technical efficiency, the transparency
and the nation-wide uniformity of the election process, as well as the work of
the municipal and the election administration related to the preparation for
the election, would be significantly facilitated if the Electoral Code provided
clear answers to the following questions :
· Will
the voters be given the two separate ballots simultaneously ?
· Will
separate ballot boxes be used for the « proportional » and the
« majoritarian » votes ?
· Which
of the two types of ballots will have to be processed first during the vote
count in the PECs ?
· Which
of the two types of PEC protocols will be tabulated first in the REC’s ? It has
to be pointed out that each REC will have to determine the outcome of the
election in 5-11 single-seat constituencies on average (25 in Yerevan only!)
and the outcome of the vote for the parties contesting the proportional
election.
The CEC has to issue
regulations on these questions.
The threshold of 5%
necessary to obtain a seat in the proportional part of the election is normal
practice against « splinter parties ». The way it is worked out is unusual but quite acceptable. It depends on the votes cast for the party
lists to which is added the sum of inaccuracies.
18. By-elections
By-elections are held twice
a year (Article 118). This could be considered as a better way
than having by-elections whenever a vacancy occurs. We do not agree with this, as grouping by-elections becomes a
political test of the governments popularity.
These elections take on a stronger political meaning than they should
have. In all countries by-elections
have lower turn-outs than regular elections and those who abstain are pro-government
voters. Two or three by-elections held
at the same time will have larger media coverage which gives them a stronger
political meaning than they would have.
20. Observers
Article 28.2 states that the CEC establishes the procedure
for performing the observer mission. We have to wait for the regulations that
will be issued by the CEC on the question.
A. Can Observers « Appeal » the
Electoral Commission ?
According to Article 30.1 :
« Proxies, Observers, and the Representatives
of Mass Media have the right to :
1) be
present at the sessions of electoral commissions, and during the voting - at
the precinct centre;
2) get familiarised, without impediments, with
the electoral documents, ballot specimens, decisions of the electoral
commissions, protocols of the sessions, to receive their copies and to make
excerpts;
3) appeal the decisions, actions or
inaction of electoral commissions. »
Firstly, Article 30.1 is a general article. It states in general the
rights of three different categories of people : proxies, observers, and
representatives of mass media. A right as specific as an appeal (either to a
court of law or a superior commission) is normally mentioned in a article
specific to the appeal procedure. Another comment: the rights and duties of
these three categories should be treated separately.
Secondly, in Article 30.1.3 the word
« appeal » is not used as a legal term (the same problem you find in Article 18.8 regarding the use of appeal
to the « relevant bodies »). Is it used with the meaning of « to
summon, to question, to challenge »?.
Read in the latter meaning, it still would contradict 30.2. (« ... observers, ... have no right to intervene in the work of
the electoral commissions ».)
Observers should not even
have the right to question the work of the commissions. Their role is neutral.
Their role is to observe, not to monitor (as it is unfortunately said in Article 30.4). Proxies, on the other hand, should
have the right to appeal a court of law. Observers, whether national or
international, should not have the same rights as proxies or as the mass media.
The rights and duties of each should be dealt with separately.
B. Presence of Observers at the PEC, REC and CEC
Article 7.3 is a general article. It defines the « moments » when
observers can be present : « In the
course of the sessions of the
commissions and during the voting ... the state ensures the participation
of proxies, observers and the representatives of mass media in the activities of electoral
commissions... ». Observers
can be present during the sessions of the commissions.
Whether observers are allowed to be present or not depends on whether
the article defining the activity of the election commission uses the word
“session” to qualify the activity. Article
30.1 states the rights of « Proxies, Observers, and
the Representatives of the Mass Media ».
These heterogeneous groups have the right to : 1) be present at the sessions
of the electoral commissions, and during the voting at the precinct centre
... » . Article 60.1 clearly
defines the summarisation of votes at the PEC level as a session :: « The Chairman of the PEC ...
invites/asks all the persons not entitled to attend the sessions of the PEC out
and closes the precinct centre. After
these steps are performed the PEC starts the session for summarisation of the voting results. »
What about the REC level ? Article 62 deals with summarisation at
the RECs. But it is not defined as a session in the first paragraph as
it is for the PEC. One has to wait for the fourth paragraph
where « the summarisation protocols of the election in the region are
signed by the members of the commission attending
the session ... » : the summarisation of the precinct
summarisation protocols at the Regional Electoral Commissions are defined as
sessions by 62.4, therefore observers
can attend. Further, 62.6, also
defines it as a session : « the
summarisation protocol is signed by the members of the commission attending the
session ». It could be argued that it is the signature
of the protocols that is considered a session but it is a specious argument.
The words « attending the session » refer to what the members of the
commission are attending, which includes, according to the previous paragraph,
filling out the protocols, signing them.
Nowhere can you read or imply that the law divides the whole process in
parts, the counting, the filling out, etc.
As for the CEC, we look at Article 63, (« Procedure for the Summarisation of the Election Results at the
Central Electoral Commission ») paragraph 1 : « Based on the
preliminary results of elections received from the REC, the CEC ...announces
the preliminary results of the elections ... » and paragraph 2 : « Until the announcement of the
preliminary results of the elections the session of the CEC is not interrupted. » Paragraph 2 of Article 62 defines the
procedure by the CEC as a session.
Article 62.10 does not mention that observers can be present
during the verification process of precinct protocols by the REC.
Also according to Article 7.3, the other period during which the observers, and others, can be
present is “During the voting”.
Does this term only circumscribe itself to the voting process in the
precinct ?
The difficulty of not having clear definitions in the articles
concerning the presence of observers will lead to difficulties. The CEC should issue a clear ruling stating
that observers can be present at all sessions of the election commissions and
attend the voting procedures, counting, transport and aggregation of results.
21. Deadline for Issuing CEC Regulation on
the Procedure for Performing Observation Missions
Article 28.2 : no deadline for the issuing by the CEC of
the procedure for performing observation mission.
22. Appeals :
The law provides for
a parallel appeals system. There is the possibility of appeals from a decision
of a lower election commission to a superior commission as well as appeals to
law courts.
Al the articles on the appeals systems should be under one
chapter. As we mentioned in the preliminary statement we suggest the rewriting
of article 40 so that it stands as a general statement on adjudication. The
procedures with the details should be found in the two tables in the annex
which mention the corresponding articles.
Art. 40.1: General principles of adjudication
-
Decisions, actions and inactivity of the electoral commission
can be appealed to a superior electoral commission or to a court.
-
Each case of appeal, whether it is to a superior
commission or to a court, should have its corresponding article.
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The appeals to the superior court or commission have
to take place within 2 days after the publication of the decision, action or
disclosure of the law or regulations as a result of the inaction if no other
date is fixed by this code.
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The superior electoral commission decides those
appeals before the final results of elections are summarised, if no other
procedure is established by this code. The superior electoral commission and
the court of first instance take decisions within 5 days.
The details of the
competencies now in Article 40-2 through 40.4 would then be in a new article : Article
41.1 (as it should stand)
: the court of First Instance takes final decisions except for :
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1. Elections of the
President ( disputes concerning the denial of registration or recognition of
a registration as invalid are appealed to a Court of Law, Article 75).
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2. Elections of Deputies
to the National Assembly
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3. Refusal to register
lists of parties (based on the proportional system) or disputes concerning a
registration that is declared void.
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The decisions of the REC on
summarisation of the results of the elections are appealed to the CEC (Article 40.2). The decisions/activities/inactivities of CEC are appealed to the
Court of Law(Article 40.3).
The summarisation of results
of the National Assembly majoritarian elections appealed to the Constitutional
Court (Article 116.9). The disputes regarding the results of the
proportional elections to the National Assembly are also appealed to the
Constitutional Court (Article 115.8).
The disputes over election
results are appealed to the Constitutional Court with the exception of local self governing bodies (Article 40.4).
23. The Arrest or Detention of Candidates
The possibility of arrest or
detention of candidates during the campaign period and before the final outcome
of the election has been declared (mentioned
in Article 18.9) has the safeguard of
being decided either by the CEC or the REC
by a two-thirds vote of the total number of commission members (Article 111.6). One must remember that
the commissions include members of different parties, whose contribution would
probably be necessary to achieve the two-thirds vote.
24. Campaign funding
Article 25.11 : when presenting a declaration on the use of
pre-election funds candidates should also present relevant documentation. The relevant documentation depends on the
CEC according to the second line of 25.11,
and that is «The CEC establishes the
specimen of the declaration and the procedure for its submission. »
25. Campaign in the Media
The provisions concerning
this issue apply to both private and state media. Article 20.3 states « local
radio and television companies »
whereas same article, parts 1, and 2 talk about « state radio and
television ». The language of the law opposes « radio and
television companies » to
« state radio and
television ». From the use of the word « state » as opposed to
« companies » one can imply that companies are private.
The implementing procedures
of Article 20.2 (Pre-election campaign through mass-media) should be left to the
Central Election Commission.
26. Display of Campaign Posters at Precincts
Article 21.2 does not have a provision prohibiting the
display of campaign posters within 50 meters of the polling place.
Conclusion
An electoral law gives clear indications as to the intent
of the drafters. This law also presents
the same liberal democratic ideas as the preceding one, especially as far as
the large number of parties in the electoral commissions goes. It has, fortunately so; done away with
voting and counting procedure barriers that were so complicated that no
administration could have applied the law.
No major objection can be
made to the law although we have to mention the rather complex adjudication
system, which is poorly explained. This
is the reason why we have added two tables, which should be placed as an annex
to the law.
We will make a brief comment
on the above-mentioned number of parties in the electoral commissions :
Democracy is not only about representation but also about efficiency.
The number of majority seats (75) and those from the
proportional list (56) should not be changed for the reasons given in our
comments. If the total number of seats
is reduced a similar ratio should be maintained.
On a practical basis, the
voting and counting procedures are too complicated and should be modified. Complex procedures lead to inattention,
mistakes and open the door to fraud.
The question of the military
vote, which has been raised, is a political matter and seems a minor issue just
as the recall of the commission members.
Finally, observers of
national and international organisations should not be considered in the law as
proxies or party delegates who should have different rights.
Annex I
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Constitutional
court
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Court of First Instance
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Court of Appeals or
Cassation Court
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Superior Commission
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Art. 40.4 appeals on election results with the
exception of local elections.
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General principle
of adjudication: Art. 40.1 - decisions, actions + inactivity
of election commissions (appealed to
court of first instance or superior commission..
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When appeal is to court of first instance, court of first instance
makes final decision. Exception: See
40.1 under cassation or appeals court.
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Art. 40.1 - decisions, actions + inactivity
of election commissions (with exception of REC decisions on summarizations of
voting) appealed to court or superior commission
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Article 18.8 - pre-election campaign violations appeal to court.
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Art. 40.2 - REC decisions on summarizations of
elections results appealed to CEC. Exception: NA majoritarian elections, see 116.9
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Art. 116.9: disputes over results of NA
Majoritarian elections
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Art. 40.1 – Appeal from first instance
court of presidential election, NA deputies elections, and refusal to register lists of parties
and declaration of list registrations as invalid are competence of court
Court of Appeals: 3
days; Cassation Court: 2 days
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Art. 40.3 – CEC decisions can be appealed to court.
Exception : Presidential (see Art.
40.4) and NA proportional (see 115.8 )
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Art. 115.8: disputes over results of NA PR elections
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Art. 102.8 – CEC decision on denial or recognition as
invalid of party list or person in it
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Art. 108.9 – REC decisions on denial or recognition as
invalid the registration of the candidate for deputy.
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(Local) Art. 124.4 - denial
of registration or recognition of registration as invalid.
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(Local) Art.
40.2 - REC decisions on
summarization appealed to CEC. Except: NA MAJ (see 116.9).
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Art. 14.3 – voter registration inaccuracies
Art. 13.2 – precinct cannot change voter register without
court order
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Art. 42.7 - REC considers complaints of decisions and
actions of PEC.
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