EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT REPORT ON
THE PARTICIPATION OF POLITICAL PARTIES
IN ELECTIONS
on the basis of comments by
Mr Ángel SANCHEZ-NAVARRO
(Substitute member, Spain)
Mr Hans-Heinrich
Vogel (Member, Sweden)
I.
Introduction
1. In
recent years, the Venice Commission has been actively involved both
in the field of electoral law and of legislation on political parties in
different countries. This work is focused not only on the legislation of
specific States but also on some general issues essential for the democratic
development of democratic institutions in Europe and elsewhere.
2. Free
elections and freedom to associate in political parties are closely linked in
any democracy, since political parties exist for the purpose of winning
political power through free and fair elections. In a number of its separate
opinions and research projects, the Venice Commission has examined the role of
political parties in a democratic society and their participation in the
electoral process of specific countries. However, until now the Venice Commission has conducted no comparative
study of the legislation and practices in its Member countries in this
important field.
3. At
its 11th meeting (Venice, 2 December 2004) the Council for Democratic Elections
decided to study the question of the participation of political parties in the
electoral process and appointed Messrs Á. Sanchez-Navarro (Substitute member,
Spain) and H.-H. Vogel (Substitute member, Sweden) as rapporteurs on this subject.
4. The
following report is based on comments provided by Messrs A. Sanchez-Navarro and
H.-H Vogel, as well as on some remarks provided by the members of the Council
for Democratic Elections. This report was adopted at the… meeting of the
Council for Democratic Elections and …Plenary session of the Venice Commission (Venice, … March 2006).
II.
Specific
issues related to participation of political parties in elections
5.
The Venice Commission has adopted, during the last few
years, different guidelines and opinions on legislation on political parties.
These documents underlined the essential role of political parties in the electoral
process and highlighted the existence of some issues of great importance in the
practical implementation of the right to free and fair elections. However, many
of these questions cannot be answered solely on the basis of the legislation on
political parties. They are the main players in the electoral process, the
ground and rules of which are defined mainly by electoral laws. Consequently,
the understanding of elections as one of the main reasons for the existence of
political parties requires the analysis of all the elements of the ‘electoral
game’.
6.
Electoral legislation and laws on political parties differ from one country
to another. It is usually accepted that electoral systems, and party systems,
greatly depend on specific – historical, cultural, political, social - national
factors. In these fields, it is practically impossible to find two similar
political systems. In addition laws are intended to manage the workings of the
national systems, thus responding to national problems, experiences and
expectations. Regardless of this diversity, two main approaches to the existence
of the political parties can be mentioned. The first one defines a political
party as a free association of
individuals, with minimal state regulation, oversight, financial support etc
(UK experience) or it may be that of a specific association with precise
duties, responsibilities and prerogatives (German model). Parties in Europe have evolved from one or other concept and
are on a converging path, but cultural differences are still significant.
Hence, in many countries, any state regulation is still seen as interference,
whilst in others there is less hesitation about political engineering through
party law, registration procedures etc.
7.
Therefore, a general report on “political parties and elections” has to
consider the existence of those differences. Questions may be somewhat similar,
but answers will vary in most of the cases. In any case, some of these issues
may be grouped considering the different periods which can be observed in any
electoral process. This report will thus deal with them in that same order.
8.
However, it seems possible to argue that the existence of parties is particularly
important, and has to be especially taken into account, up to the moment of the
elections. In fact, political parties precisely aim to participate in the
political process, mainly presenting candidates to elections. Of course,
parties are important throughout the whole electoral process. But once the
voters come directly into the scene, the fact of political representation loses
part of its relevance. Once the elections have been held, and even during the election day, all the constitutional or legal rules (and, most
particularly, those relating to the system of appeals and complaints) are based
on specific circumstances, in which all candidates and citizens have to receive
equal treatment.
9.
In this sense, it would not be reasonable to have different rules
(deadlines, definition of irregularities, procedures, sanctions…) for partisan
or non partisan actors, as they may exist for presenting partisan or
non-partisan lists, for taking part in election management bodies, for having
access to public media and for being able to benefit from public funding. For
that reason, the final questions, especially those related to the procedures
for complaining and lodging appeals (competent bodies and/or courts, legal framework, sanctions,
etc.) possibly do not admit many differences depending on partisan organisation.
10.
Another important aspect of political parties’ participation in
elections is that of the influence exercised by the electoral system itself on
party internal structure. For example, a candidate-based first past the post
electoral systems hardly requires any party involvement in other issues than candidate’s
political backing and contribution to the campaign financing. On the contrary,
in proportional systems with closed party lists a party has very important
prerogatives in defining, among other issues, the place of each given candidate
in the list.
A) Questions
raised during the pre-electoral period
11.
The Code of Good Practice in
Electoral Matters considers universal suffrage as the
first of the principles underlying Europe’s
electoral heritage which “means in principle that all human beings have the
right to vote and to stand for election”. However –and indeed- this right may
be subject to certain conditions, usually concerning age and nationality.
12.
In any case, there are other conditions, derived from the importance of
political parties in modern democracies. This implies that the individual right
to stand for election may be affected by two different sets of rules: first, by
the general rules and requirements adopted by a State to allow parties to run
in an election. And, second, by the rules adopted by the
parties for nominating their candidates in a given election. The former
rules have to be analysed especially with the perspective of pluralism: if, as
the European Court of Human Rights has said, “there can be no democracy without pluralism”, the main point is to
ascertain that additional requirements imposed on parties are not so heavy that
may hurt the expression of social pluralism. The latter rules, which may be
fixed by the parties themselves, or imposed by legislation, may affect the idea
of intra-party democracy, or to the right of the members of a given (in this
case, political) association, to participate in the basic decisions of the
association (party).
a) Rules for depositing lists and/or
candidatures: additional requirements for parties for running in an election
13.
Some countries require the fulfilment of some additional conditions for applications
to be presented. In particular, they may consist of a number of signatures (200
persons eligible to vote in the constituency, in Germany; one percent of the voters registered in
the constituency, in Spain), or of the deposit of certain amounts
of money
14.
Applications and lists of candidates are usually registered by parties.
In fact, in some countries (Albania, Bulgaria, Latvia, “The Former Yugoslav Republic of
Macedonia” or Slovakia, amongst others), only parties are allowed to participate
in elections. In most of the others, parties do enjoy a more advantageous
position than independent or non-party candidates with respect to matters such
as requisites for presenting candidates, access to public mass media, etc.
15.
Political parties are, as some Constitutions and the European Court of
Human Rights have expressly admitted, essential instruments for democratic
participation. In fact, the very concept of the political party is based on the
aim of participating “in the management of public affairs by the presentation
of candidates to free and democratic elections”. They are thus a specific kind of
association, which in many countries is submitted to registration for
participation in elections or for public financing. This requirement of
registration has been accepted, considering it as not per se contrary to the freedom of association, provided that
conditions for registration are not too burdensome. And requirements for
registration are very different from one country to another: they may include,
for instance, organisational conditions, requirement for minimum political
activity, of standing for elections, of reaching a certain threshold of
votes... However, some pre-conditions for
registration of political parties existing in several Council of Europe Member
States requiring a certain territorial representation and a minimal number of
members for their registration could be problematic in the light of the
principle of free association in political parties.
16.
In any case, the existence of such a register, “as a measure to inform the authorities about the
establishment of the party as well as about its intention to participate in
elections and benefit from advantages given to political parties”, should possibly be reflected in the
additional requirements imposed at the moment of depositing lists and/or applications.
In particular, countries which require registration of parties (Germany, Spain) may exempt them on any other additional
requirements, allowing them to stand in elections without, for instance,
collecting a number of signatures or paying a guarantee deposit, as other
political agents have to do.
b) Procedures adopted by parties for
nominating candidates
17.
Parties are a specific kind of association. Their status is thus
guaranteed under the right of freedom of association, and they can only be
subject to restrictions prescribed by law. Therefore, internal party procedures
for decision-making should be presided by the principle of self-governing, and
in many countries these rules are only set in the Party Statutes. Nevertheless,
their relevance for the working of the whole system implies that, as has been
previously pointed out, the Constitution or the law may set up some rules,
usually requiring parties to respect democratic principles in their internal
organisation and working.
18.
However rules may go further: the French Constitution had to be recently
reformed to allow the law to impose the principle of equal access of men and
women to elective offices, so limiting the free choice of candidates by party
organs. In some countries, the Electoral Law contains a procedure of nomination
of party candidates, which has logically be respected
by the party statutes. This is, for instance, the case in Germany (art. 21) or Ukraine (art. 40). In this respect, it could be
asked what is the scope of autonomy and self-governing that should be respected
by the law or, in other words, what degree of external –and general-
constraints are compatible with the very idea of free association. In any case, it seems that the very respect of the
democratic principle should suffice to exclude any possibility of changing the
order of candidates within a list after voters have cast their ballots, as for
instance seems to be possible in some specific countries.
c)
Parties
and election management bodies
19.
In general, different Election management bodies have to guarantee the
fairness of the electoral process. This aim may be reached by different means,
and so the composition of election management bodies greatly differs from
country to country. In some countries, such as Germany, the electoral law does not specify whether
the assessors appointed to form the Electoral Committees have any partisan
component. In Spain, Higher Electoral Committees are mainly composed of judges,
with a number of experts who have to be jointly nominated by parties with seats
in the Lower Chamber, whilst Polling Station Committees are formed by drawing
lots among voters registered in each Polling Station, and by the observers that
all parties can nominate (although, in practice, only major parties are able to
have representatives in most of the Polling Stations). Other countries, such as
Ukraine, foresee Election Commissions formed by
representatives of concurrent parties, with the offices of president, deputy
president and secretary proportionally distributed among parties (art. 21.8 of
the Ukrainian Electoral law speaks about the “right [of parties] to a
proportional share of leadership positions in polling district elections
commissions”).
20.
In this respect, different elements should be considered. For instance,
the different kinds of election management bodies, their size, the way their members are nominated, or which parties have
the right to participate in this process. It could be argued that the lower
Committees have to deal with the working of the voting process, solving
problems as fast as possible, and so they have to be functional and –really and
apparently- trustworthy, in political terms. That implies that they possibly
should not include too many members, and that their working should not be
submitted to politically-oriented criteria. In this sense, bodies, mainly or
totally composed of politically-nominated members, do not seem to be a
practical option. On the other side, higher bodies mainly
have to deal with complaints or particular problems which have to be solved
with more general criteria, in an almost-judiciary function. In this case, the
number of people is possibly less important, and of course the confidence of
the concurrent parties must be assured, be it because of the independence and
technical expertise of their members, or because the parties (all or just the
main ones? In fact, the guarantee of pluralism does not require that all
parties participate in every sphere of the electoral organisation. The mutual
control among some of the main ones may be enough) have a role in their
nomination process.
21.
However, the electoral management bodies should be composed in a way to
ensure the trust of all forces taking part in elections and individual voters in
their impartiality and professionalism.
d) Rights and obligations of parties
observers
22.
During the electoral process, party observers and representatives must
indeed have the same opportunities for defending their interests in any sphere
of political activity. It does not necessarily follow, as has been previously
suggested, that all parties do have to take part in every organ of the
electoral administration, but it implies that all concurring parties must have
the right to be heard in the decision-making process and to complain against
any decision which they consider not to be legally grounded.
23.
It is also important that representatives of the political parties keep
their observer status not just until the voting is over but up to the date when
the last disputes concerning election results are settled. This could have a
positive impact on the credibility of the results.
B) Questions raised at
the electoral campaign
a) Financial questions including the
equality principle and the use of public (State) resources
24.
The Venice Commission has already established guidelines on the
financing of electoral campaign expenses, which differs from regular financing. In fact, regular financing may be
justified for the essential role of political parties in democratic regimes,
but electoral financing has an even stronger basis: the electoral process is
the regular procedure for people to decide the main orientation of democratic
institutions. It is therefore the main stream through which democratic
legitimacy runs. In that sense, campaign expenses are similar to institutional
expenses: expenses which are necessary for institutions to work according to
the constitutional framework.
25.
This perspective allows some limits to be drawn: party activities have
to be financed, and equally financed, in as much as they contribute to the
working of democratic institutions. This means that public resources may be
limited only to “institutional” parties, i.e., parties which are represented in
Parliament, and therefore participate in the parliamentary activity. It is also
obviously possible to extend this public funding to other parties which
represent a “significant section of the electoral body”, or which “reach a
certain threshold of votes”. But equality does not mean that all parties are
entitled to public resources regardless of their real strength in a given
society. For example, the Code of good practice in electoral matters provides
that:
“Depending on the subject
matter, equality may be strict or proportional. If it is strict, political
parties are treated on an equal footing irrespective of their current
parliamentary strength or support among the electorate. If it is proportional,
political parties must be treated according to the results achieved in the
elections […]”
26.
In any case, some specific points that can be examined. Provided that
not every party is entitled to public (regular, or
electoral) resources, which are the admissible thresholds for denying public funding?
Electoral systems may leave socially important parties out of Parliament, but
the denial of public means may simply make them disappear, thus reducing the
social pluralism and the political alternatives of a society. Should electoral
financing be more generous than regular financing, increasing the incentives
for social movements to offer their political alternatives at the moment of
elections, without great risks of bankruptcy?
27.
In a different sphere, it is clear that major parties, whose members and
leaders usually dispose of institutional power (for instance, members of
national, regional or even local chambers; executive positions at any of those
different levels, etc.) may dispose of much more resources (facilities,
advisors, administrative staff), just because they do have access to public
means, which are not considered as public financing of party activities. In the
United Kingdom, for example, the Statutes of the Conservative Party set up a
different, and stronger, majority, for the incumbent leader to be confirmed
than for a new leader to be elected, just because it is generally accepted than
the incumbent leader has many more means to influence party members or
electors. Is this kind of difference relevant? And, if so, is it taken into
account in other spheres?
28.
The Venice Commission’s Guidelines and Report on the Financing of
Political Parties (CDL-INF(2001)8) distinguish between
regular financing and financing of electoral campaigns. But the practical
usefulness of the distinction is limited when political parties receive
(public) funds permanently and regularly for both their current operations and
their participation in elections. If that is the case, it is underlined in the
report, “confining funding to the full or
partial coverage of campaign expenses … merely aims to avoid emptying the
parties’ coffers every time an
election takes place and to permit the trouble-free functioning of the
democratic process through the holding of regular, free elections.” It is
also pointed out in the report, that most of the major
European democracies have opted for this approach. The situation is similar
when political parties acquire (private) donations.
29. Therefore, if and when the distinction is to
be used anyhow in regulations for different provisions concerning, on the one
hand, electoral campaigns and, on the other, pre- and post-electoral periods, a
number of clarifications is desirable. Such
clarifications should be considered in order to avoid some of the problems
which have been discussed on various occasions in Europe
during the last few years and especially during the deliberations which
preceded the adoption of the European Union Regulation (EC) No 2004/2003 on the
regulations governing political parties at European level and the rules
regarding their funding.
30. If public funds are allocated with general
regard to an electoral campaign it should be clarified that the funds can
be used by the political party for any legitimate party purpose; specific
conditions for the use of appropriations should be expressly indicated. If
funds are appropriated strictly for campaign purposes and for such
purposes only, guidance should be provided how to handle expenditure which
cannot be classified as exclusively campaign related – as for example
expenditure for (rent of) party premises, which are used both for current party
business and for campaign activities, or for party employees who are employed
by the party for both current and campaign activities. If applicable, guidance
should also be provided as to both the span of time before and after an
election during which the use of appropriations is legally acceptable and the
time at which expenditure is considered to have occurred.
31. If private donations are acquired for
campaign purposes by either the party or the candidate guidance should be
provided how to handle any conditions or wishes for the use of a donation,
which may have been expressed by the donor, how to handle expenditure which
cannot be classified as exclusively campaign related and for which time before
and after an election the use of campaign donations is acceptable. Further,
problems may be caused, if the candidate him- or herself
provides own resources. In such cases guidance may be necessary, for example,
to which extent the candidate may use own resources or resources of his family,
how resources, which are provided in kind, have to be valued and who has to do
the valuation.
32. If political parties are or can be liable to
income tax it should be clarified to which extent appropriations, donations,
membership fees etc. are or can be regarded as taxable income, which
expenditure is deductible from taxable income and which information
has to be provided by the political party to establish deductibility. Similar
clarifications should be considered concerning value added tax and other taxes
which may apply to political parties.
33. It should also be clarified according to
which set of regulations the party has to keep its books – for example
according to provisions for private associations or companies or any other
private individuals or according to provisions for public authorities or other
public entities (or maybe even both).
b) Access to (public and private) media
34.
From a different point of view, contemporary societies are mainly “information” societies: elections are fought
in a very particular context, so that access to mass media is possibly the best
instrument for parties to transmit their message to electors. Therefore, that
is possibly the main resource that parties may seek. And the access to
publicly-owned media is, at the same time, the least expensive of the aids that
the State authorities may offer, so that there is a clear interest from both
sides. Of course, problems will arise when deciding the details of that access
(time provided to the different parties and/or lists, presence of the campaign
in the news, etc.). In this respect, the existence of a model of party
registration may also be taken into account, giving some advantages to
registered parties, but it cannot be used as a discriminatory instrument,
depriving other social sectors of any opportunity to defend their positions in
a fair campaign. The Code of good practice in electoral matters provides that:
“Equality
of opportunity must be guaranteed for parties and candidates alike. This
entails a neutral attitude by the state authorities, in particular with regard
to: the election campaign and the coverage by the media, in particular by the
publicly owned media […]”
35.
In the field of private media, problems are clearly different. The
principle of fair elections must be compatible with that of free elections: if
all parties and/or candidates have the right to campaign, and to address their
messages to all citizens, it is also true that many private media have clear
social, ideological and, at the end, political orientations, which may be
considered when defining a right to access to all mass media. This factor, of course, cannot justify
the definition of different economic conditions for the different parties’
publicity, but it might even support claims to deny the access of some parties
to some media. The difficulties of establishing a balanced equilibrium of media
in a given society are thus particularly evident in the framework of electoral
competition.
36. Another complex issue concerning the coverage
of electoral campaign is the responsibility of different mass media for the
quality of information they provide on different
political forces. The freedom of press is a corner stone of modern democracies,
however there should be a mechanism providing an effective remedy against
misuse or abusive use of information during the pre-electoral period.
C) Questions
raised the day of election
a) Role of parties observers
37. It is particularly important to guarantee the
possibility of all parties and candidates to have observers during the election day. In this respect, it is evident that parties
have some elements –permanent organization, membership, and so on- which help
them in this task, and that are much more difficult to dispose of for other
non-partisan candidates.
38. These observers must have the right to
control all the spheres of the voting process (polling boxes, election
committees at all levels), to intervene –at least, to be heard- in the
resolution of possible conflicts which may arise, and to lodge appeals against
any decision which they may consider is not grounded in legal terms.
b) Complaints procedures
39. The Explanatory Report of the Code of Good
Practice in Electoral Matters insists in the importance of “an effective
system of appeal”. And, as has just been pointed out, that requirement has to
be applied to the whole system, including of course the appeals which can be
posed on election day, be it by party observers, by
individual citizens or by any other subject. In the context of elections, an
effective system of appeal would mean that any decision by any state authority
can be challenged and that a decision by a competent body is taken immediately.
Any delay in complaints and appeals procedures can seriously compromise the
credibility of an election.
D) Questions
raised at the post-election period.
a) Contesting electoral results: timeframe.
40. The “deadlines for taking decisions on
complaints and appeals”, including of course the decision of contesting
electoral results, have to be “realistic”. This is
obviously an important element of the whole system of appeal, but the precise
timeframe must vary not only from one country to another (depending on multiple
factors, such as the systems of ballot-counting and of transmitting results),
but also from case to case (different elections, which may be held in different
contexts: uninominal districts or national constituencies, for instance;
different chambers…). It does not seem easy to draw general conclusions about
what deadlines should be admitted or not, and it will greatly depend on the
circumstances.
b) Sanctions
41. Something similar may be held with respect to
the system of sanctions. Firstly, there are obviously such a large number of
different possibilities that it is not possible to sum them up in very short
terms. Secondly, in this field the participation of parties does not affect to
the definition and working of the rules: the cancellation of the election of
seats, the eventual loss of seats, the economic and financial sanctions, may
affect candidates independently of their partisan affiliation.
III. Conclusion
42.
The Council of Europe Member States have
different approaches to the regulation of political parties’ activities and
their participation in political life, notably in elections. However, there are
some common trends and concerns as to the equality of different forces seeking
political representation, financing of parties and issues related to the internal
operation of parties.
43.
A set a common standards is not only possible
but also quite appropriate in a number of fields, which are:
a.
procedures for the nomination of candidates for
different elections;
b.
equal treatment of different parties and individual
candidates competing in elections;
c.
possibility to have observers during the elections;
d.
transparency in campaign financing and accountability
of parties for the different resources used;
e.
equal access to mass media;
f.
effective complaints and appeals system, which provides
for a speedy procedure for the settlement of different disputes during the
whole electoral process;
g.
respect of the principle of
proportionality in case of sanctions.
44.
The Venice Commission hopes that further co-operation between the
Council of Europe Member States in these areas could contribute to the
establishment of common standards in addressing the issue of political parties’
activities and to the improvement of electoral practice in Europe.
