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Electoral Insight - Election Legislation Enforcement

Electoral Insight – March 2003

Election Law Enforcement International Comparisons

Election Law Enforcement

International Comparisons

Sue Nelson
Electoral Consultant*

*Sue Nelson was the lead writer of "Election Integrity" for the Administration and Cost of Elections (ACE) Project (www.aceproject.org).

Enforcement of election laws and regulations is an essential element of free, fair and reliable elections, no matter where they are held. Good enforcement not only ensures that the legal and regulatory framework for elections is applied and respected, but also reassures voters of the legitimacy of the electoral process. It also encourages accountability, acts as a deterrent, increases transparency and builds confidence in the election results.

Most enforcement systems for democratic elections have evolved over time and are a reflection of the political and social context within each country. Their institutional frameworks, jurisdictions and procedures differ, as does the quality of enforcement. However, despite differing characteristics and mechanisms, most democratic electoral systems have a similar basic enforcement regime: monitoring the process, identifying and investigating offences, prosecuting those believed to be responsible, determining guilt and sentencing those responsible.

Part of the enforcement regime is usually a system of checks and balances to ensure the integrity and effectiveness of election law enforcement. Different institutions, or offices within an institution, are used as a means to limit the power of other institutions and to serve as a check that the laws are being appropriately enforced. One of the most prevalent mechanisms used in election law enforcement is the separation of powers among the agencies that investigate, prosecute and adjudicate offences. Another widely used safeguard is the availability of an appeal process as a check on enforcement decisions.

The examples in this overview, taken from a range of countries, illustrate the different types of enforcement systems and methods used. Some systems are based on an independent election commission, while others use the state administrative system. In others, independent commissions enforce certain aspects of the election laws, such as campaign financing or anti-corruption rules.

Enforcement responsibility

Enforcement Agencies in Selcted Countries Footnote 4
Country Agency
Argentina Federal judges with electoral jurisdiction
Bulgaria Electoral management body and Council of Ministers
Canada Commissioner of Canada Elections Footnote 5
Mexico Federal Electoral Institute (electoral management body) and Federal Electoral Tribunal
El Salvador General Controller's Office
Philippines Electoral management body
Thailand Electoral management body
United Kingdom Electoral management body
United States Electoral management body

Agencies Responsible for Formal Electoral Disputes in Selected Countries Footnote 6
EMB Judiciary Electoral Tribunal Other
Albania Australia Barbados Belgium
Canada
(commissioner of Canada Elections)
Bostwana Italy Denmark
South Africa India South Africa Norway
United States Footnote 7 United Kingdom Turkey Switzerland

In many electoral systems, an electoral management body (EMB) administers elections. In these systems, the EMB often acts as the primary enforcement agency, taking complaints and initiating investigations. For example, in the Philippines, the Commission on Elections (COMELEC) is constitutionally responsible for the preliminary investigation and prosecution of cases involving election offences. It was first established in 1941 as an independent national elections commission to administer elections, and its role in enforcement has expanded over the years. In 1963, it was strengthened by legislation to "carry out its constitutional duty to ensure free, clean and orderly elections and administer and enforce all laws relative to the conduct of elections." Footnote 1 Its enforcement powers were further expanded by the 1973 Constitution that added judicial power, making COMELEC a judicial tribunal as well as an election administration body.

The approach of expanding the role of an independent election commission to include electoral law enforcement has been adopted by other countries, especially those with a troubled electoral past or history of election fraud. This is seen as a way to improve accountability and break an entrenched party's hold on the process, as demonstrated in Mexico.

In the early 1990s, Mexico completely reformed its electoral system and adopted an extensive system of checks and balances. The 1990 Federal Code of Electoral Institutions and Procedures (COFIPE) gave the electoral management body (the Federal Electoral Institute or IFE) and the Federal Electoral Tribunal shared responsibility for election law enforcement. The IFE has authority to enforce administrative rulings and sentence electoral authorities, political parties, citizens and other public and private entities that violate the election law. However, decisions by IFE can be appealed to the Tribunal, which handles the majority of offences. The focus of the Tribunal is on juridical aspects such as violations of political-electoral rights and actions of federal electoral authorities that violate constitutional or other legislation.

Mexico has a federal political system, and each state has its own election laws that cover the organization of elections and the prosecution of related offences. As IFE is a federal institution, it enforces federal law. However, its agreements with the states to provide electoral instruments, such as voter lists and voter cards, make many locally committed election offences eligible for federal prosecution.

Thailand also recently reformed its electoral system and gave enforcement powers to its EMB. The 1997 Constitution established an Election Commission of Thailand (ECT) to organize elections and investigate and adjudicate cases of electoral fraud. Some of the powers given to the ECT include the right to enter premises and to search and seize documents, assets, and evidence without a court warrant, provided there is compelling evidence of a violation of election law. Footnote 2

In some other electoral systems, a government agency or ministry administers elections. Their election law enforcement regimes usually follow the same rules that apply to offences not related to elections. In Moldova, for example, a state Central Elections Commission organizes and conducts elections. Its permanent staff is supplemented by seconded government workers during elections and preparations for elections. The Commission has the power to investigate abuses of the electoral system, including allegations of fraud. Administrative offences, which include voter fraud, are documented by local officials (mayors, chairpersons of the relevant electoral body or police supervising electoral operations) and are submitted to a court for processing. If criminal action is involved, the state prosecution bodies are informed and the case is then pursued by the prosecutors. Footnote 3

Adjudicating election disputes

Election law enforcement requires a mechanism for voters, candidates and others to challenge suspect parts of the process and to have their complaints investigated and resolved. Many electoral disputes are based on allegations of fraud or election law violations. Each system has developed its own way of handling election disputes and processing any illegal action found during the resolution of those disputes.

The agency responsible for formal electoral dispute resolution varies from one jurisdiction to another. As indicated in the previous table, this can be the responsibility of the EMB, the judiciary, the electoral tribunal or other mechanisms.

In the Bahamas, a temporary electoral court is created to handle election petitions. This civil court issues a Certificate of Judgement that either upholds or voids an election. At the same time, the court will issue a report to the Attorney General if corrupt or illegal practices were involved, including the nature of the offence and the identity of the persons involved. The Attorney General then decides whether to start a criminal prosecution. Footnote 8

A similar system is used in Western Samoa, where the Supreme Court hears all election petitions. At the end of the trial, the court issues a Certificate of Court on the result of the election, as well as a Report of the Court on corrupt or illegal practices. The report includes the names of those involved and is given to the Attorney General for prosecution. Footnote 9

Investigations

Essential to the enforcement process are the investigation of complaints and the determination of whether an illegal action has taken place. Agencies responsible for investigations can vary widely among the different enforcement regimes. In some countries, such as New Zealand, the police investigate election offences. In other countries, the EMB has this responsibility.

In the Philippines, COMELEC has the exclusive power to conduct the preliminary investigation of all election offences punishable under the election act. The Law Department within COMELEC often starts the preliminary investigation based on a complaint or a COMELEC initiative. It may delegate investigations to regional election directors or provincial election supervisors. The investigating officers have subpoena powers and can hold hearings to clarify issues. Once an investigation is concluded, the investigating officer determines whether there are sufficient grounds to hold a respondent for trial. If so, the case is then turned over to government prosecutors.

In Bangladesh, an Electoral Enquiry Committee is established by the Election Commission. The Committee includes judicial officers and its mandate is to investigate problems and prevent pre-poll irregularities. It investigates complaints made directly to the Committee or through the Election Commission. The Committee can also use its own initiative to investigate any act or omission that it believes obstructs the preparation and conduct of a free and fair election. Bangladesh also has election tribunals that are constituted by the Election Commission and headed by judicial officers at the divisional levels, but the sole function of the tribunals is to try election petitions arising out of election disputes. Footnote 10

In Hong Kong, a separate Independent Commission against Corruption (ICAC) was established with law enforcement powers that include enforcing the Elections (Corrupt and Illegal Conduct) Ordinance. Its enforcement strategy includes investigation and prevention. As it found that it could not win the battle against corruption unless it was able to change the people's attitudes towards corruption, it also carries out public education activities. For election offences, the ICAC receives, considers and investigates complaints of election corruption. It has the power to arrest, search and seize property and detain a suspect. Cases that reveal misconduct or malpractice by a civil servant are referred to government departments for disciplinary or administrative action. Cases of criminal violations are given to the Secretary for Justice for prosecution. Footnote 11

Types of offence

Agency Responsible for Campaign Finance Law Enforcement in Selected Countries Footnote 4
Country Agency
Canada Comissioner of Canada Elections
France National Commission Footnote 16
Mexico IFE General Council
Nepal Election Commission
New Zealand Election Commission
Thailand Election Commission
United Kingdom Election Commission Footnote 17
United States Federal Election Commission Footnote 18

Most election laws include detailed sections on election offences and penalties. Despite variations in content and the wording used to describe the offence, the basic list of offences is similar. The differences are found more in the penalties than in what constitutes an electoral offence.

Several countries, such as the Bahamas and Western Samoa, differentiate between "illegal practices" and "corrupt practices." Illegal practices in the Bahamas are tried before a magistrate and carry smaller penalties than corrupt practices. Corrupt practices are tried before the Supreme Court and carry stiffer penalties. Prosecution for a corrupt practice also requires the consent of the Attorney General.

In New Zealand, a corrupt practice is a serious offence against the electoral process, resulting in a fine and/or imprisonment. Anyone who wilfully contravenes the provisions of the election and related laws, is considered to have committed an illegal act. The names of persons who commit a corrupt practice are put on a Corrupt Practice List for three years. Persons on the list, compiled by each registrar of electors, are not permitted to register to vote. Footnote 12

In Mexico, offences against the election law are characterized as "administrative faults" and are enforced by IFE. However, criminal acts fall under the federal penal code in a section entitled "Electoral Laws and the National Registry of Citizens." This was done to ensure that criminal offences are prosecuted by federal judicial authorities. Only about 5 percent of electoral offences are administrative faults handled by IFE. Footnote 13

What constitutes a campaign finance law violation and its penalty varies widely. The Brazilian Electoral Court has the power to verify the financial reports provided by political parties, but only as an administrative review to see if their statements meet general accounting practices. There are no legal sanctions for non-compliance. Footnote 14 However, in other countries, there are penalties for non-compliance. In Thailand, for example, the Election Commission can seize cash and property of those who violate campaign finance laws. In New Zealand, the Electoral Commission reports offences to the police.

In the United States, enforcement differentiates between deliberate or large financial violations and mistakes made out of ignorance. Mistakes are handled administratively by the Federal Election Commission, while purposeful violations are prosecuted as crimes by the Justice Department (see "Campaign Finance Enforcement in the United States" in this issue). In the United Kingdom, an independent Election Commission was created in 2000 as part of campaign finance reforms. Until that time, the United Kingdom did not have an agency for campaign finance regulation enforcement at the national level. Footnote 15

Prosecution

Many systems use the government prosecution system to prosecute criminal acts related to elections. Some of these countries include Armenia, the Bahamas, Burkina Faso, Mali, New Zealand and South Korea.

In Thailand, it was found that the criminal prosecution system was too slow and ineffectual to deter vote-buying and election fraud. The 1997 electoral reforms gave the ECT the power to adjudicate cases of electoral fraud. If evidence of fraud is found, the ECT can declare an election null and void and order a by-election. It can also revoke the election rights of a candidate. Once someone's election rights are revoked, that person is subject to prosecution under the criminal procedure code.

In Mexico, a Special Prosecutor for Electoral Offences was created in 1994 by presidential decree. The Special Prosecutor is a member of the Attorney General's office, but has technical autonomy to address electoral offences. In the Philippines, a state, provincial or city prosecutor decides whether to prosecute a case. However, COMELEC has the power to review and reverse the resolution of a prosecutor. Criminal cases are tried in trial courts and appeals are processed through the criminal justice system. Private prosecutors are allowed in cases involving the recovery of civil liability.

There is a different system in Bulgaria, where the Central Election Committee and constituency election committees investigate violations and draw up a statement of findings. Penalty statements are then issued by the regional governments where the violation occurred. If a penalty instrument is issued against a regional governor, the penalty statement is done by the Minister of Public Administration. Footnote 19

Penalties

Penalties for election law violations and for election-related crimes vary widely from country to country. Much of the variation depends on the particular context in each country and the perception of what constitutes a serious threat to its electoral process.

In Mexico, penalties for administrative faults are established according to who committed the fault. The different fault categories are voters, electoral officials, party officials, public servants and religious ministers. For example, sanctions for a citizen found guilty of a vote violation range from a 10 to a 100 wage-day Footnote 20 fine and/or six months to three years in prison. Religious ministers who try to influence voters receive up to a 500 wage-day fine. Electoral officials who alter electoral instruments or documents or who refuse to perform their electoral duties receive a 20 to 100 wage-day fine or from three months up to five years in prison.

In other countries, penalties are divided according to whether the offence was a corrupt act or an illegal practice. In the Bahamas, illegal practices receive a fine up to $1 000 and/or up to three months in jail. Corrupt acts receive a fine of up to $2 000 and/or up to two years in jail.

Other countries add additional penalties for crimes committed under special circumstances. For example, in Mali, the election law adds forced labour to the punishment for crimes that are violent or violate the secrecy of the vote. In Western Samoa, those convicted must also pay all of the court costs. And many systems will revoke voter and candidate rights, depending on the violation.

Conclusion

Despite the various enforcement systems, the similarities among election enforcement regimes in democratic systems are striking. They have the same fundamental objectives and, in large measure, identify the same basic acts as offences. They also face the same problems of providing neutral, timely and effective enforcement within an often highly charged and politicized environment. The differences reflect the different political institutions and history of each country and what they perceive as the most direct threats to the holding of free and fair elections. This focus on historical and potential threats is reflected in the choice of institutions, the amount of power given to each institution and the severity of the sanctions.

Enforcement systems form part of each jurisdiction's legal and regulatory framework. However, unless an enforcement system is respected and appropriately used, its value is questionable. Widespread impunity for lawbreakers or the use of enforcement for partisan purposes erodes public trust and can cloud the legitimacy of the election outcome.

Enforcement regimes also reflect the norms and values of their citizens, and the international trend since the early 1990s has been towards free and fair elections. As citizens and political participants demand greater accountability and reliable elections, enforcement regimes are updated, reformed or strengthened. Ensuring there are functioning checks and balances is a significant part of that process. Another is building public trust and confidence in the enforcement system, so that it can fulfill its objective of protecting the integrity of the electoral process.

Sanctions for Election-Related Violations in Selected Countries Footnote 21
Country Vote Buying Vote Fraud Disrupting Polling Armed Entry into Polling Station Taking Ballot Boxes Altering Ballots
Algeria Handled under the penal code 3 months to
3 years + 500 to 5 000 dinars
6 months to 2 years; if armed: 6 months to 3 years 6 months to 3 years (excludes law officers) 5 to 10 years: if violence: 10 to 20 years 5 to 10 years
Armenia Up to 1 year or up to 500 times minimum wage 200 to 400 times minimum wage: if violence or threat: up to 5 years Up to 500 times minimum wage 2 to 5 years
Burkina Faso up to 2 years +/or 2 000 francs 1 month to 1 year +/or 10 000 to 100 000 fr 1 to 5 years +/or 300 000 to 600 000 Fr. if armed 5 to 10 years 20 000 to 120 000 fr. if concealed: 15 days to 3 months + 60 000 to 360 000 Fr 1 to 5 years 120 000 to 600 000 Fr. if violence: 5 to 10 years forced labour 1 to 5 years + 60 000 to 600 000 Fr.
Mali 1 to 5 years 100 000 to 1 million francs 6 months to 2 years + 25 000 to 250 000 Fr. 1 to 5 years + 120 000 to 600 000 Fr. if armed or vote violated" 5 to 10 years forced labour 20 000 to 120 000 Fr. if concealed: 15 days to 3 months + 60 000 to 360 000 Fr. 1 to 5 years + 120 000 to 60 000 Fr. violence: 5 to 10 years forced labour 1 to 5 years + 60 000 to 600 000 Fr
Mexico 200 to 400 wage-day fine + 1 to 9 years jail (public servants) 10 to 100 wage-day fine + 6 months to 3 years jail 10 to 100 wage-day fine + 6 months to 3 years jail 10 to 100 wage-day fine + 6 months to 3 years jail 10 to 100 wage-day fine or 6 months to 3 years jail (citizens)
Thailand 1 to 10 years + 20 000 to 200 000 baht 1 to 10 years + 20 000 to 200 000 B 1 to 5 years + for 20 000 to 10 000 B 1 to 5 years + for up to 10 000 B 1 to 10 years + 20 000 to 2000 000 B 1 to 5 years +for 20 000 to 10 000 B (1 to 10 years+ 20 000 to 200 000 B for public official)

References

Arya, Gothom. "Election System and Events in Thailand." www.ect.go.th/english/commissions/gothom/go7.html

Algeria. "Electoral Law, Chapter V. Penalties." http://membres.lycos.fr/lexalgeria/elect.htm

Armenia. "Electoral Code of the Republic of Armenia." www.ifes.am/laws/electoral_code.htm

Bahamas. "Bahamas: Parliamentary Elections Act, 1992, Part VII: Election Petitions and Inquiries into Qualifications." www.georgetown. edu/pdba/Electoral/Bahamas/bahamas.html

Bangladesh. Bangladesh Election Commission Secretariat. "Electoral System, Code of conduct, prevention of pre-poll irregularities and election petitions." www.bangladeshgov.org/ecs/

Bulgaria. "Election of Members of Parliament Act, Promulgated State Gazette No. 37/13.04.2001." www.essex.ac.uk/elections

Bulgaria. "Presidential Elections Act." www.essex.ac.uk/elections

Burkina Faso. Independent National Elections Commission. "Election Law, Chapter VIII: Penalties." www.ceni.bf

Donsanto, Craig C., "Campaign Finance Laws in the U.S." 1999. www.psephisma.org:8080/ site/index.xsp

Hong Kong. Independent Commission against Corruption. www.icac.org.hk

Mali. "Election Law, Chapter XII: Penalties, Ministère de l'Administration Territoriale et des Collectivités Locales." http://w3.matcl.gov.ml/ministere/serv-cent.html

Mexico. Federal Electoral Institute. www.ife.org.mx/wwwcai/pef2000i.htm

Mexico. Electoral Tribunal. www.trife.gob.mx

Moldova. "Electoral Code." www.ifes.md/elections/electoralcode/

Nepal. Election Commission. "Election Crimes." www.election-commission.org.np/6.html

New Zealand. Election Commission of New Zealand. www.elections.org.nz

Philippines. "Omnibus Election Code of the Philippines, Article XXII: Election Offenses." www.comelec.gov.ph/laws/oec.html

Pinto-Duschinsky, Michael and Alexander Postrikov. "Campaign Finance in Foreign Countries: Legal Regulation and Political Practices." 1999. www.psephisma.org:8080/ site/index.xsp

Ricay, Agustin. "Electoral Offences (Mexico)." Paper for the Third Annual Trilateral Conference on Electoral Systems. Washington, DC. 1996. (Published by International Foundation for Election Systems).

Thailand. "Organic law on the Election of members of the House of Representatives and Senate." www.ect.go.th/english/laws/organiclawelection.html

United Kingdom. Electoral Commission of the United Kingdom. Fact sheet, "Campaign Expenditure 2002." www.electoralcommission.org.uk/about-us/factsheetspub.cfm

Western Samoa. "Electoral Act 1963." www.samoalive.com/electoral_act_1963.htm


Endnotes

Footnote 1 "Republic Act No. 3808," Philippines. www.comelec.gov.ph

Footnote 2 Information from the Election Commission of Thailand. www.ect.go.th/english

Footnote 3 "Electoral Code," Chapter 12. www.ifes.md/elections/electoralcode/

Footnote 4 Data for Latin American countries provided by Daniel Zovatto. Data for Canada: www.elections.ca. Data for U.S.: www.fec.gov/index.html. Data for other countries from their electoral laws.

Footnote 5 The Commissioner of Canada Elections is appointed by the Chief Electoral Officer.

Footnote 6 EPIC Project. www.epicproject.org

Footnote 7 Court system is also used. U.S. data from www.fec.gov/index.html

Footnote 8 "Bahamas: Parliamentary Elections Act, 1992, Part VII: Election Petitions and Inquiries into Qualifications." www.georgetown.edu/pdba/Electoral/ Bahamas/bahamas.html

Footnote 9 "Electoral Act 1963," Part I. www.samoalive.com/electoralact_1963.htm

Footnote 10 "Electoral System, Code of conduct, prevention of pre-poll irregularities and election petitions." www.bangladeshgov.org/ecs/

Footnote 11 Independent Commission against Corruption. www.icac.org.hk

Footnote 12 Electoral Glossary, Electoral Commission of New Zealand. www.elections.org.nz/ elections/pandr/eglossary.html

Footnote 13 Carlos Navarro, Federal Electoral Institute, Mexico City.

Footnote 14 Torquato, Jardim, "Equality of Opportunities Essential." IFES Today, Vol. 8, No. 3, 9/99, p. 9.

Footnote 15 Pinto-Duschinsky, Michael and Alexander Postrikov. "Campaign Finance in Foreign Countries: Legal Regulations and Political Practices." 1999. www.psephisma.org. 8080/site/index.xsp

Footnote 16 Ibid. Full title is the National Commission for Election Campaign Reports and Political Finance.

Footnote 17 Electoral Commission of the United Kingdom. Fact sheet, "Campaign Expenditure 2002." www.electoralcommission.co.org/about-us/factsheetspub.cfm

Footnote 18 For federal campaign finance laws.

Footnote 19 "Presidential Elections Act." Bulgaria. www.essex.ac.uk/elections

Footnote 20 A wage-day fine is the minimum wage or salary per day established by law. Mexico has three different wage zones but the minimum wage average is about four U.S. dollars per day.

Footnote 21 Penalty data taken from the respective election laws.


Note: 

The opinions expressed are those of the authors; they do not necessarily reflect those of the Chief Electoral Officer of Canada.