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3. Free And Fair Elections
3.1. Constituent Elements
At a certain level of abstraction, States are bound to conduct their internal affairs, so that `the authority to govern shall be based on the will of the people as expressed in periodic and genuine elections.' The principle of effectiveness of obligations requires that States adopt laws and procedures or systems of internal organization which are conducive to and do not obstruct the attainment of particular goals established by international law. This principle in turn carries certain implications with respect to the choice of options in regard to free and fair elections, even if none can be specifically framed as an international duty. These `markers' for effective implementation, the indices for free and fair elections, are nonetheless evident in the practice of established democracies and States in transition, considered in relation to the attainment or failure to attain the stated objective. For the purposes of the present study, the requisite activities and criteria have been divided into the following ten broad categories: (1) Electoral law and system; (2) Constituency delimitation; (3) Election management; (4) The right to vote; (5) Voter registration; (6) Civic education and voter information; (7) Candidates, political parties and political organization, including funding; (8) Electoral campaigns, including protection and respect for fundamental human rights, political meetings, media access and coverage; (9) Balloting, monitoring and results; and (10) Complaints and dispute resolution.
3.1.1. Electoral law and system
Regional jurisprudence and recent United Nations General Assembly resolutions recognize `that there is no single political system or electoral method that is equally suited to all nations and their people and that the efforts of the international community to enhance the effectiveness of the principle of periodic and genuine elections should not call into question each State's sovereign right, in accordance with the will of its people, freely to choose and develop its political, social, economic and cultural systems, whether or not they conform to the preferences of other States.'69 Moreover, `political systems and electoral processes are subject to historical, political, cultural and religious factors'.70 Whether a State adopts a majoritarian voting system or one or other system of proportional representation is thus a classic issue falling within the reserved domain of domestic jurisdiction.71
State practice confirms the variety of available choices,72 and no system can be considered, from an international law perspective, to be more valid than any other, provided it bears a reasonable relationship, in law and in practice, to the internationally prescribed objective. The IPU has noted the need, among others, to strike a balance between two essential considerations: that a legislative election above all must make it possible to designate a cohesive government responsible for conducting a national policy; and that the election primarily must guarantee representation at the national level of the country's political forces, and reproduce in Parliament as faithful an image as possible of their relative strength.73 The IPU has also stressed the importance of a reasonable link between the electors and the elected, reflecting those elements of proportionality74 which also characterize the governing principles of international law.
The chosen system, therefore, must facilitate the expression of the will of the people through periodic and genuine elections, conducted on the basis of equal suffrage and secret ballot. 'Periodic' is yet another of those terms susceptible to varying interpretations, even among reasonable people. The travaux preparatoires of article 3 of Protocol 1 to the European Convention on Human Rights find expert opinion saying that the intervals between elections should be neither too short nor too long, but rather in conformity with the normal practice of free States.75 Practice in turn merely confirms the generality of the condition; random samples show that representatives in the United States of America serve two-year terms; Australia and New Zealand, three years; Austria and Belgium, four years; Botswana and the United Kingdom, five years. The Inter-American Commission on Human Rights has ruled that the postponement of all elections for ten years violates the American Declaration of the Rights of Man,76 thereby showing how the principle of proportionality can be applied in a specific situation.
Periodic and genuine elections conducted on the basis of equal suffrage also means 'equality of voting power'; in principle, no vote should carry disproportionately more weight than any other, but that does not necessarily require a system of proportional representation. On a complaint by a minority party member in the United Kingdom, the European Commission of Human Rights interpreted Protocol 1, article 3, to mean that different political parties must be given a reasonable opportunity to present their candidates for election, but did not require an electoral system which guaranteed that the total number of votes cast for each candidate or party be reflected in the composition of the legislature.77
The choice of electoral system and its implementation may nevertheless have a direct effect on related political rights. Majoritarian systems tend to favour two parties. They are relatively straightforward, but in a multi-party situation they give stability the advantage over equity in representation; not only are small or newer parties disadvantaged, but very large parliamentary majorities may be won on the basis of minor electoral victories, considered in percentage terms.78 Proportional representation systems aim to allocate seats to political parties proportional to their electoral strength; however, they can encourage the proliferation of parties, and require voting on the basis of party lists, so distancing the voter from the elected and in turn limiting the opportunities for individual, non-party candidatures.79 Different formulae for the allocation of votes and seats can also significantly affect representation in the legislature, and may be adopted to ensure that no single party obtains a majority,80 to maintain an urban-rural bias,81 to ensure other 'balances',82 or to guarantee minority or sectional representation.83
The principle of equal suffrage nevertheless applies also to 'threshold' requirements, which can be and are used to deny representation to parties that fail to secure a prescribed percentage of the overall vote.84 Such criteria are commonly used to reduce the numbers of small or sectional interests in the legislature and to enhance the prospects for the formation of a viable government.85 Unless compensatory steps are taken,86 however, this technique can effectively disenfranchise substantial minorities. International standards nevertheless constrain and structure the choices available to States. The underlying obligation of result, combined with principles of equality, reasonableness and proportionality, can be used to mediate between the objective and the means chosen, and to show whether the system and its implementation in practice conform to what is required by international law. In short, the State is not free to use the 'valid' electoral technique of the threshold requirement in order to bar particular groups from representation in Parliament.
The choice of system reveals a wide disparity, or even richness, of practice. In many cases, the choice is not so much the result of conscious legislative decisions, as the product of a particular historical and political evolution. As such, it is not necessarily a model to be emulated out of context, although the representation aims of individual systems may appeal to countries in transition, where popular consensus on the democratic approach to government is still lacking. The general and distant objective set by international law - genuine periodic elections guaranteeing the free expression of the will of the electors, which shall be the basis of the authority of the government - allows considerable room for variation. Whether an electoral system departs from the permissible range is most likely to be answered by reference to other peremptory international law principles, such as non-discrimination. Does the 'variation' have the intent or effect of disenfranchising or devaluing the voting power of particular sections of the population for reasons that ought to be irrelevant to the exercise of political rights, such as race, religion, national or social origin, sex, language, political or other opinion, association with a national minority, birth or other status? If so, then to that extent the electoral system is potentially in breach of international law.
3.1.2. Constituency delimitation
Constituency delimitation, or 'districting', raises similar considerations with respect to purpose, intent and effect, in an area of some flexibility. 'Representation by population' is as central to the concept of democracy as is the notion of equality of voting power; the question is whether absolute or near-absolute equality is called for; or whether relative equality of voting power will suffice. The United States Supreme Court, for example, held that the equal protection clause rendered unconstitutional a state districting scheme for congressional elections, because it failed to provide for equality of voters in each district;87 in another instance, a disparity as small as 0.6984% was also held unconstitutional.88
Other States are more pragmatic, recognizing the importance of population, but also the relevance of other factors. A 1986 decision of the French Conseil constitutionnel, for example, confirmed constituency delimitation criteria which included the principle that population differences within a single departement must not exceed 20% of the departmental average.89 In the United Kingdom, Boundary Commissioners are required to draw constituency limits so as to come as close as possible to a regional average quota.90 A Canadian decision in 1989 considered constituency deviations in British Columbia, which had the effect of enhancing the power of the rural vote. The Court considered that 'equality of voting power is the single most important factor to be considered in determining electoral boundaries,' but that 'relative equality of the number of voters per representative' was called for. The justifications put forward by the government on this occasion were held inadequate, however, and in some cases, 'it was difficult to see how they could conform to the principle that population must be the primary criterion.'91 More recently, the Supreme Court of Canada has stressed that the purpose of the right to vote in section 3 of the Charter is not equality of voting power, so much as the right to 'effective representation', of which relative parity is a prime condition, but allows geography, community history, community interests and minority representation also to be taken into account.92
Few States follow the U.S. model of absolute equality, but seek instead to accord legislative seats roughly proportional to population. Boundary changes in Mongolia for the 1992 election, for example, reversed the rural bias of the 1990 elections.93 'Effective representation' was supposedly taken into account in creating additional constituencies for the October 1991 elections in Zambia, specifically for areas having severe physical and communication difficulties. When setting constituency boundaries, the Electoral Commission was required to take three criteria into account: the availability of means of communication; the geographical features of the area; and the number of inhabitants. It was authorised to vary the strict application of the population quota where either of the other criteria justified such action.94 A clear rural bias resulted, together with substantial variations in voter numbers, ranging from 6,376 in one constituency, to 70,379 in another.95 Even though all parties accepted the delimitation, such substantial variations inevitably devalued many votes.
While the principle of relative equality will ensure that votes carry more or less equal value, subject to objectively justifiable variations on the basis of local or regional conditions, clearly no rule prescribes the ideal ratio of population to representative. The International Foundation for Electoral Systems in its pre-electoral evaluation in Togo (estimated total population, 3.6 million; estimated total electorate, 1.7 million), considered that a ratio of 1:25,000 meant weak representation.96 Much will depend on local conditions, however; voting districts for the Latvian elections in 1990 were tied to approximately 10,000 voters, those in Lithuania under the October 1989 laws to some 18.400;97 the rule in Ireland is at least one member for every 30,000 inhabitants, and not more than 1 for every 20,000;98 the representation norm for Romania in the September 1992 elections was one deputy for every 70,000 inhabitants, while average constituency size in Bangladesh for the 1991 parliamentary elections was 207,631,99 and each of China's 2,978 indirectly elected deputies represented approximately 335,000 inhabitants.100 The level of representation will depend not only on population and geography, but also on overall political organization. For example, federal States with functioning and effective provincial legislatures, or unitary States with highly developed systems of local government, may satisfy international standards with a relatively low ratio of representation to population.
From an international law perspective, how a State delimits its electoral boundaries remains very much a product of its overall choice of electoral system. The general aim remains the same, to translate the will of the people into representative government. Again, State practice and the very disparities between States themselves in terms of population, geography, distribution and resources, reveal the range of possible and permissible variations. Substantial differences in the representation/population ratio between electoral units, however, raise a number of questions. For example, does the disparity have the effect of disenfranchising a group or groups of the population, contrary to the international norm of non-discrimination? Or does the unequal division have a political impact, in the sense of affecting the outcome of an election? Either case raises the possibility of a violation of international law, although a breach will normally be determined only by what actually happens in fact.
69 See, for example, UNGA res. 46/137, 'Enhancing the effectiveness of the principle of periodic and genuine elections,' 17 Dec. 1991; also, UNGA res. 47/130, 18 Dec. 1992; UNGA res. 48/124, 20 Dec. 1993.
70 UNGA res. 46/130, 'Respect for the principles of national sovereignty and non-interference in the internal affairs of States in their electoral processes,' 17 Dec. 1991.
71 See generally, Inter-Parliamentary Union, Electoral Systems, Geneva, (1993); Nadais, A., 'Choice of Electoral Systems,' in Garber, Larry and Bjornlund, Eric, eds., The New Democratic Frontier. A country by country report on elections in Central and Eastern Europe. National Democratic Institute for International Affairs, Washington, D.C., (1992), 190 (hereafter, Garber & Bjornlund, New Democratic Frontier).
72 See generally, Inter-Parliamentary Union, Electoral Systems, Geneva, (1993).
73 Ibid., 3.
74 'Proportionality' is used here and in similar contexts below in its international law sense of 'bearing a reasonable relationship between the means chosen and the required result'. On proportionality and non-discrimination, see Goodwin-Gill, G.S., International Law and the Movement of Persons between States, (1978), 75-82. In this sense, proportionality differs from and is not intended to be a substitute for elections systems based on 'proportional representation'.
75 Goy, 'La garantie europeenne du droit a de libres elections legislatives,' 1280.
76 Third Report on the Development of the Situation of Human Rights in Chile: doc. AR 1977, 77-99 (1977). Art. XX of the Declaration provides: 'Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.'
77 Application 7140/75, 7 Decisions and Reports 95; cited in Sieghart, P., The International Law of Human Rights, (1983), 364 (hereafter, Sieghart, Human Rights.). See also Goy, 'La garantie europeenne du droit a de libres elections legislatives,' 1303-8 at 1306 (in a section pertinently entitled, 'L'absence de garantie d'une juste representation').
78 IPU, Electoral Systems, 6. See also Council of Freely Elected Heads of Government and Carter Center of Emory University, Electoral Reform in Mexico, Occ. Paper Ser., Vol. IV, No. 1, Nov. 1993, 16-17 (hereafter Freely Elected Heads, Electoral Reform in Mexico).
79 IPU, Electoral Systems, 7-8. AS the IPU study shows, mixed systems are also possible, the most comprehensive perhaps being those adopted in Germany and Hungary. In the 1990 Czechoslovak elections, parties might choose to include independent candidates on their list. The Bulgarian elections the same year featured a mixed majority and proportional representation system: US Commission on Security and Cooperation in Europe. Elections in Central and Eastern Europe. A Compendium of Reports on the Elections Held from March through June 1990. Washington, D.C., (July 1990), 127, 147 (hereafter US Commission, Central and Eastern Europe 1990). Elections in the Seychelles in July 1993 combined the majoritarian system for the presidency and two thirds of the legislature, and proportional representation for the remaining third: see Bulletin de 1'Assemhlee Nationale, no. 14 du 5 oct. 1993,61. In Russia's 12 Dec. 1993 elections, half the 450 seats in the duma were assigned to single member constituencies decided on a simple majoritarian vote. and half were decided according to a system of proportional representation. See US Commission on Security and Cooperation in Europe. Russia's Parliamentary Election and Constitutional Referendum, December 12, 1993. Washington, D.C. (Jan. 1994), 7 (hereafter, US Commission, Russia 1993).
80 This appears to have been the stated aim of the voting system adopted for the Jordanian elections in Nov. 1993; cf. Antoine Boshard, 'Un resultat bien orchestre,' Journal de Geneve, 10 nov. 1993,p.3.
81 n Egypt, half of the 444 elected members must be labourers or farmers: Inter-Parliamentary Union, Chronicle of Parliamentary Elections and Developments, No. 25, 1990-1991, 65-6. See also Brick, A., Gastil, R. & Kimberling, W., Mongolia: An Assessment of the Election to the Great People's Hural. June 1992. International Foundation for Election Systems. Washington, D.C., (1992), 9, 17 (hereafter Brick. Gastil & Kimberling, Mongolia 1992). With respect to Zambia, see below note 26 and accompanying text.
82 In Tonga, for example, only nine of 30 seats in parliament are open to election by the country's 45.000 voters. Twelve seats are occupied permanently by the King and the 11-member Privy Council/Cabinet, and nine are reserved for and elected by the country's 'hereditary nobles': Keesing's Record of World Events, News Digest for February 1993. The House of Representatives in Fiji consists of 70 members elected for 5 years, of whom 37 are elected by voters on the Fijian communal roll, 27 by voters on the Indian communal roll, one by voters on the Rotuman communal roll and 5 by voters on the General communal roll: Inter-Parliamentary Union, Chronicle of Parliamentary Elections and Developments, No. 26, 1991-1992, 71.
83 In Iran, for example, Zoroastrians, Jews, Assyrian and Chaldean Christians and Armenian Christians of the South and North are all guaranteed one representative: Inter-Parliamentary Union, Chronicle of Parliamentary Elections and Developments, No. 26, 1991-1992.83; in New Zealand, four of the 97 electoral districts are set aside for representatives of the Maori race (who make up 12% of the population): ibid., No. 25, 1990-1991, 111; the Cypriot constitution provides for power sharing between Greek and Turkish populations in proportion to their numbers: ibid., 57; both Bangladesh and Tanzania guarantee seats for women: ibid., 37, 123; in Lebanon, voters vote for lists which take count of the division of seats between the different religious communities: ibid., No. 27, 1992-1993, 135-8; in Croatia, ethnic and national minorities which constitute more than 8% of the population have a right to representation proportional to their numbers: ibid., 71-4: in Romania, legally constituted organizations of citizens belonging to a national minority which has not obtained at least one Deputy or Senator have the right to a Deputy's seat if they have obtained throughout the country at least 5% of the average number of validly expressed votes: ibid., 181-5.
84 The IPU Electoral Systems survey found thresholds ranging from 0.67 per cent in the Netherlands, to 8 per cent in Liechtenstein.
85 For example, the 5% threshold in Russia's 1993 elections was intended precisely to keep out small, 'troublesome' parties: US Commission, Russia 1993, 4.
86 Cf. the examples given in note 15 above.
87 Reynolds v. Sims (1964) 12 L.Ed.(2d) 506. 536; the disparity here was as high as 41-1, however.
88 Karcher v.Daggett (l983) 77 L.Ed.(2d) 133. Variations tend to be tolerated more at the level of state or local legislature; see Mahon v. Howell (1973) 34 L.Ed.(2d) 320; Gaffney v. Cummings (1973) 37 L.Ed.(2d) 298.
89 Decision no. 86-218, 16 nov. 1986.
90 European Centre for Parliamentary Research and Documentation, Electoral System Legislation. National Reports: Part Two, (May 1993), 473 (hereafter ECPRD. Electoral System Legislation). The quotas for 1992 were as follows: England-69,534; Scotland-54,570; Wales-58,383; Northern Ireland-67,145.
91 Dixon v British Columbia (Attorney General) [1989] W.W.R. 393. In one example, the constituency of Atlin had 2,420 voters, while another. Coquitlam-Moody, had 36,318, making a vote in the former 15 times more valuable than a vote in the latter: 'Such anomalies cannot but suggest a gross violation of the fundamental concept of representation by population which is the foundation of our political system.'
92 Reference Re Provincial Electoral Boundaries (Saskatchewan) [1991] S.C.J. No. 46. See the decision to similar effect of the Australian High Court in Attorney-General of the Commonwealth (ex rel. McKinlay) v. Commonwealth of Australia (1975) 135 C.L.R. 1.
93 Brick, Gastil & Kimberling, Mongolia; 1992,17.The deviation from the norm of some 13,000 voters per seat was plus or minus some 2.500, ranging from a high of some 16.000 to a low of some 11,000. Although unacceptable in the United States, 'it is not unreasonable in the demography of Mongolia - especially considering that they tried to respect traditional political boundaries': ibid.
94 Commonwealth Secretariat, Presidential and National Assembly Elections in Zambia, 31 October 1991. Report of the Commonwealth Observer Group, (1992), 4 (hereafter Commonwealth Observer Group, Zambia 1992).
95 National Democratic Institute for International Affairs. Carter Center of Emory University. The October 31 1991 National Elections in Zambia. Washington, D.C., (1992), 32-3 (hereafter NDI/Carter Center, Zambia 1991).
96 Brunet, G., Marchand, M., et Neher, L., Togo: Rapport d'evaluation pre-eleclorale. International Foundation for Election Systems, (31 mars 1992), 21 (hereafter Brunet, Marchand & Neher, Togo 1992). As the Canadian Court noted in Dixon (above note 23), `It is not consistent with good government that one member be grossly overburdened with constituents, as compared with another member.'
97 US Commission on Security and Cooperation in Europe. Elections in the Baltic States and Soviet Republics. A Compendium of Reports on Parliamentary Elections Held in 1990. Washington, D.C, (Dec. 1990), 22, 64.
98 ECPRD, Electoral System Legislation, 302.
99 Commonwealth Secretariat, Parliamentary Elections in Bangladesh, 27 February 1991. Report of the Commonwealth Observer Group, (1991), 11 (hereafter. Commonwealth Observer Group, Bangladesh 1991). The boundaries had been drawn in 1984, on the basis of the 1981 census, again so as to achieve broad equality of voters among constituencies and satisfaction of other criteria. Given the substantial interim changes, particularly due to population movements, the Commonwealth Observer Group recommended review.
100 Inter-Parliamentary Union, Chronicle of Parliamentary Elections and Developments, No. 27, 1992-1993, 59-61. The law in the Dominican Republic provides for one deputy for every 50,000 inhabitants or fraction thereof greater than 25,000: ibid., No. 24, 1989-1990, 67. In Mexico, the ratio is one deputy for every 250,000 citizens, and for every fraction over 125,000: ibid., No. 26, 1991-1992, 113.
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