ELECtoral justice and credibility of elections

1. ELECtoral justice and credibility of elections Jesús Orozco Henríquez Professor-Researcher at the Institute for Legal Research National Autonomous University of Mexico (UNAM) Commissioner at the Inter-American Commission on Human Rights

2. "Gender equality and women’s empowerment are fundamental to the global mission of the United Nations to achieve equal rights and dignity for all... But equality for women and girls is also an economic and social imperative. Until women and girls are liberated from poverty and injustice, all our goals -- peace, security, sustainable development -- stand in jeopardy."Secretary General Ban Ki-moon CONGRATULATIONS TO EVERY WOMAN ON THE INTERNATIONAL WOMEN’S DAY

3. ELECTORAL JUSTICE (EJ) AND CREDIBILITY OF ELECTIONS • Along with other elements of the electoral framework, EJ represents the ultimate guarantee of free, fair and genuine elections in keeping with the Rule of law. • Accordingly, the design of an appropriate EJ system is fundamental to democratic legitimacy and the credibility of electoral processes.

4. EJ and Democracy • In democracies, EJ plays a decisive role in ensuring the stability of the political system and adherence to the legal framework, and thus also contributes to the consolidation of democratic governance. • The role of EJ, although not new, has become recognised as a crucial factor in all democracies, whether emerging or established.

5. EJ aims: Conferring credibility and democratic legitimacy on electoral procedures and their results • An EJ system needs to operate efficiently, in a technical sense. • It should also act effectively, with independence and impartiality • It should promote justice as well as transparency, accessibility, inclusiveness and equal opportunity. • It should communicate that it operates well, so that all interested persons perceive it as sound.

6. EJ involves the means and mechanisms for: •  ensuring that each action, procedure and decision related to the electoral process is in line with the law); and • protecting or restoring the enjoyment of electoral rights, giving people who believe their electoral rights have been violated the ability to make a complaint get a hearing and receive an adjudication.

7. A healthy and good practice for any EJ system is to envisage the possibility of any electoral action or decision being challenged before an EJ body by any person who considers himself or herself to be prejudiced by it. • This is part of the international human right of access to justice. • The objective is to ensure that no electoral action or decision escapes review regardless of whether it occurs in the pre-electoral, electoral or post-electoral period.

8. CLASSIFICATION OF EJSs • Legislative body, whether it is the legislature itself or other political assembly • Judicial body, where we find four kinds of courts entrusted with this task: • Regular court of the judicial branch • Constitutional court or council • Administrative court • Specialized electoral court • Electoral Management Body (EMB) with judicial powers • Ad hoc body created with international involvement or as an internal national institutional solution to a specific electoral process

9. When analyzing the advantages and disadvantages of the different types of EJS, it is only possible to identify or discuss certain trends. There is no single institutional design of an electoral justice system that implies correctness or success. There is no “best system”.

10. Currently, the most widespread kind of EDR systems are those that entrust the authority to make the final decision on an electoral challenge to an objective and impartial judicial body. This evolution arose as a response to certain abuses committed by legislative bodies or political assemblies in charge of an EDRS, or simply because the adoption of this system would better guarantee that electoral disputes are resolved based on the provisions in law and keeping with the principles of constitutionality and not on the basis of discretional considerations of political expediency.(165 and 166) • Currently, the most widespread kind of EJ systems are those that entrust the authority to make the final decision on an electoral challenge to an independent and impartial judicial body. • This evolution arose as a response to certain abuses committed by legislative bodies in charge of an EJ, or simply because the adoption of this system would better guarantee that electoral disputes are resolved based on the rule of law and not on the basis of discretional considerations of political expediency.

11. Some EJ systemshaveempoweredtheirindependent EMB with judicial powers, so itdoesnotonlyorganizeelectionsbutit has alsotheauthoritytoresolve electoral disputes in a final and definitiveway • Someother EJ systemshaveestablishedbesidestheir EMB, anindependentspecialized electoral courttoresolve electoral disputes, so theyhavetwodifferentspecialized and independent electoral bodies

12. EMB with judicial powers • Advantages • It avoids eventual discrepancies and confrontation between the EMB and the one responsible for resolving electoral disputes • It contributes to identify and point out which body is responsible of all election decisions, propitiating more attention and care in the selection of its members, and enhancing their professional credentials and honorability • It reduces the usually high cost of the electoral processes

13. EMB with judicial powers • Disadvantages • It generates the concentration of the electoral power in one single body, creating potential abuses of power given the absence of inter-systemic controls between different organs • It creates eventual inquiries regarding possible conflict of interest of the EMB, and potential violation of the human right to an effective remedy by an independent and impartial court

14. Specialized electoral court • Advantages • Quality of the decision, given the specialization of members of the judicial body, as well as the guarantee that the resolution will be issued in a timely manner • It centers the interest of the political forces in the selection of the members of the electoral courts, giving them enough guarantees for their independence and impartiality but avoiding their involvement in the selection of other kind of courts 

15. Specialized electoral court • Disadvantages • It propitiates eventual conflicts and confrontations between the EMB and the electoral court • It entails greater costs when it creates a new specialized electoral court • Risk consisting on selecting the members of the court because of their partisan convictions

16. Regardless of thetype of EJS: • Itisessentialtocreateguaranteesfortheindependence and impartialityof the EJ bodymembers: Legal requirements regarding their • Professionalism • Status, and • Appointing process

17. Effective formula in emerging democracies: Independent EMB + Independent judicial bodyentrustedwiththeresolution of electoral disputes (whetherbeing regular, constitutional, administrativeorspecialized electoral court)