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Strasbourg, 27 December 2000
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CDL (2001) 103 rev
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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
REMARKS ON THE ARMENIAN ELECTORAL LAW AND PROPOSED AMENDMENTS AFTER THE
VISIT OF THE VENISE COMMISSION TO EREVAN ON NOVEMBER 15-18, 2000
The 1999 law
is an improvement over the previous one as our Armenian friends were aware of
its weaknesses. In 1997 four drafts had
been presented but the March 1998 presidential elections retarded the final
draft of the present law.
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 distribution of information by the administration having to do with voter
registration (Articles 12, 13 and 14)
is logical and includes the usual checks at precinct level. The law should have
included a deadline for the data submission to the relevant Precinct Electoral
Commission (PEC) and Regional Electoral Commission (REC). 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.
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 for 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 throughout different articles in 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 space 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 three members designated by the government, the
others by the parties represented in parliament and by the first four other
parties contesting the election that have 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 before 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 provide
the rules to determine the constituency boundaries in conformity with advisable
practice although a 15% difference in the number of voters with reference to
administrative boundaries is difficult to obtain. A 25% difference would be more realistic. 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 an electoral precinct could have a
number of electoral centres (polling stations). In this 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 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 count it will become 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 voter. There is
one two many verifications: one before handing out the ballot to the voter and
another before the voter deposits the ballot in the box. The second is not explained clearly in the
law: how does the commission member checks that the voter is in the right district,.
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” ran 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. Once the ballot box has been opened the
chairman 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 to a smaller table where four Commission
members sit. One commissioner takes a
ballot out of a large envelope and gives it to the commissioner next to him who
opens the ballot showing it to the onlookers. The two other commissioners have
a sheet which they have to fill out appropriately by putting a mark for the
corresponding candidate or list every time a new ballot is shown. The ballots are organised in piles, one pile
per candidate.
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 :
-
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 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 states of similar size.
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 representation 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 in some western
democracies that use Proportional Representation to have the two parties that
control the trade union movement also to have dominants positions in an almost
permanent way. 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 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 divided in two 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. 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. 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 should 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.
-
The articles specify the dispute for which
the different forms of appeal, whether to a superior commission or to a court.
-
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.
-
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.
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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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