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Home  >  Elections
 

Elections

Elections are major events in democratic states. Without free and fair elections there can be no democracy. Where democracy is nascent, elections can enhance political stability, and help strengthen democratic institutions. The greater the confidence in the process, the greater the elected authority's claim for legitimacy and the likelihood that all parties, including the losers, will accept the result. However, elections are only one part of the democratic process, and a fair and effective electoral system must be founded in an adequate democratic infrastructure.

While a government has flexibility in constructing the structure of the legal framework according to legal traditions of the country, domestic electoral legislation is increasingly subject to international scrutiny. More and more states concede the moral and political necessity of having a set of rules governing the conduct of elections. Alongside, in international law, customary rules are in the process of crystallising. This process has gained momentum over the last two decades. Beyond the conceptual foundation of voting rights, this is reflected in the development of practical criteria by which progress towards the standards enshrined in the international instruments may be measured. This approach was followed by the OSCE based on the election-related Human Dimension commitments, agreed upon in Copenhagen in 1990.

The following key structural issues and principles may be identified for consideration when drafting or amending electoral legislation:

  • It is essential to build confidence and legitimacy in the drafting and designing process by involving all stakeholders (political parties, but also civil society) ;
  • Written laws should prevail over custom or administrative policies as they provide the benefits of equity, certainty, visibility and transparency, make the matter subject to judicial interpretation and review and open to recourse by citizens ;
  • A country may choose to adopt either general election legislation relevant to any election or specific election legislation relevant to a specific body of government (or to referenda) ; different combinations of these options are possible, depending also on the system of government (unified legislation is obviously not possible in federated systems) ; general election legislation has the advantage of securing consistency in election administration and practices, in addition to a unified implementation of the law in connection with all elections; it also simplifies the drafting process in cases where amendments in legislation are needed
  • Inclusion of the basic principles of the election system in the constitution creates a safeguard against frequent changes (especially the fundamental guarantees protecting suffrage rights, such as the right to elect and be elected, the institutions subject to democratic elections, and terms of office of elected candidates) while provisions of the administration of the elections and the procedural matters should be left to legislation enacted by parliament and administrative rules issues by authorized election administration bodies ;
  • Election legislation should be stated in objective language. Interpretation of election legislation should not be a matter of subjective opinion.
  • Election legislation should avoid conflicting provisions between laws governing national elections and laws governing local elections. The provisions governing the administration of national elections should be in harmony with the provisions governing local elections.
  • Relationships between national and local authorities, and between election administration bodies and other governmental bodies, should be clearly stated and defined. The authority of election administration bodies must be clearly stated and defined to prevent conflicting or overlapping powers being held by other government bodies.
  • Election legislation should be enacted sufficiently in advance of elections to enable political participants and voters adequate time to become informed of the rules of the election processes. Election legislation enacted at the "last minute" undermines the legitimacy of the legislation and prevents political participants and voters from becoming informed in a timely manner of the rules of the election processes.
  • Election legislation should be enacted in accordance with the applicable legal provisions governing the promulgation of laws by the parliament. Election legislation that is not enacted in accordance with the applicable legal provisions may be of questionable legitimacy, and risks annulment by the courts.
  • Election legislation should be published and made readily available for the public.

Furthermore, election legislation can nor should contain all regulations relevant to the election process. The election process will require involvement of institutions and procedures that are based on other parts of the national legal system. Of particular importance is national legislation governing the media, registration of political parties, citizenship, and criminal provisions related to election law violations.

Finally, there is more to elections than the Constitution and the law: if elections are to be free and fair, laws designed to that end must not just exist, they must be operated in practice and be enforced.

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Joint Opinion on the Amendments to the Electoral Code of the former Yugoslav Republic of Macedonia (in English)

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