Transcript Constitutional Change - Organization of American States

Mechanisms for Political Parties’
Control over Electoral Authorities
Adrián López A.
SENPLADES-FLACSO
September 30, 2009
Index
1. The case of Ecuador
2. Constitutional change
3. Divisions between electoral
administration and justice
4. Tools for controlling electoral matters
5. Conclusions and perspectives
Ecuador case: 3 years, 7 elections
Oct. 2006 –
1st round
Nov. 2006 –
2nd round
Apr. 2007 –
Popular
consultation
Sep. 2008 –
Constitutional
referendum
Sep. 2007 –
Constituent
Assembly
elections
Jun. 2009 –
Civil Parrish
elections
Apr. 2009 –
General
elections
Ecuador case: 1st Round, 2006
(% Votes for Correa)
Ecuador case: 1st Round, 2009
(% Votes for Correa)
Constitutional Change
• Trend for constitutional change in Latin America
• Redefinition of relationships between actors and
changes to the existing power structures
• Expansion of “plebiscitary” democracy
• Strengthening of electoral authorities
• De-institutionalization of traditional political parties
State Structure before 2008
State Structure post-2008
CONSTITUTIONAL STATE OF
RIGHTS
C O N S T I T U T I O N A L
TRNASPARENCY AND SOCIAL
CONTROL FUNCTION
CITIZEN PARTICIPATION
AND SOCIAL CONTROL
COUNCIL
LEGISLATIVE
FUNCTION
NATIONAL ASSEMBLY
C O N T R O L
/
C O N S T I T U T I O N A L
EXECUTIVE
FUNCTION
JUDICIAL
FUNCTION
PRESIDENCY
JUDICIARY COUNCIL
NATIONAL
ELECTORAL
COUNCIL
PROVINCIAL
COURTS OF
JUSTICE
ARMED FORCES
AND NATIONAL
POLICE
PUBLIC COMPTROLLER
ELECTORAL
FUNCTION
NATIONAL COURT
OF JUSTICE
NATIONAL
EQUALITY
COUNCILS
OMBUDSMAN
C O U R T
TRIBUNALS
SUPERINTENDENCIES
PEACE
TRIBUNALS
AUTONOMOUS ORGANS
AUTONOMOUS DECENTRALIZED GOVERNMENTS
1. REGIONAL
2. PROVINCIAL (GALÁPAGOS)
3. CANTON (METROPOLITAN DISTRICTS)
4. PARRISH
DISTRICT
ATTORNEY
PUBLIC
DEFENDER
AUXILIARY ORGANS
SERVICIO
NOTARIAL
ATTORNEY GENERAL
MARTILLADORES
JUDICIALES
DEPOSITARIOS
JUDICIALES
CONTENTIOUS
ELECTORAL
TRIBUNAL
Legal Changes in the Electoral Realm
Electoral Law– 2000
Rules and Regulations of the Electoral
Law– 2000
Political Parties Law– 2000
Electoral Expenditures and
Propaganda Control Law – 2000
Rules and Regulations for the Electoral
Expenditures and Propaganda Control
Law – 2002
Suffrage Law for Equatorians Living
Abroad– 2002
It is necessary to guarantee the
judicial and extrajudicial control over
the constitutionality of acts and
resolutions adopted by the electoral
authorities
Electoral Law, “Code of
Democracy”– 2009
Divisions between administration and
justice in electoral systems
Pre-2008
General Elections
Post-2008
CPCCS
Political parties
with most votes
7 members in the
Electoral Tribunal
“Depolitization” of Electoral Functions
Merit-based contest
5 advisors
5 electoral judges
The 5 advisors and judges are designated for a 6-year term, with
substitutes for 2 and 3 advisors every three years, respectively
Structure and Competencies of the
Electoral Function
Constitutional Court
Contentious Electoral Tribunal
National Electoral Council
Intermediary
Scrutiny
Committees
Vote Reception
Committees
Plenary of the TCE
Independent Electoral
Organisms
Provincial
and District
Electoral
Delegations
Regional, district,
provincial and external
committees
Judges
Occasional judicial
advocate
Medios de Control en Materia Electoral
Political-Electoral Rights
Constitutional Controls
and Resources
Natural
Persons
Political parties
Political
subjects
Political
movements
Alliances
Candidates
Fiscalization and supervision of
electoral authorities
Legal
(entities)
 Right to Contest Elections
 Appeals
 Complaints
 Nullity
 Revisions
 Reconsideration
 Clarification or Expansion
 Protective Action
 Political Trials
Comparative Analysis
Political
Parties
Revision
Political Trials
Contestation
Nullity
Reconsideration
Electoral Complaint
Authorities
Appeal
Clarification or
Expansion
Persons
Protective
Action
Candidates
Electoral Justice for Political Parties
As entities within their own judicial sphere, Political Parties can violate the
political-electoral rights of citizens by way of several examples:
• Unjustified denial of affiliations
• Obligatory affiliations
• Unjustified unaffiliation
• Unjustified refusal to stand or run
for office
Electoral Justice for Political Parties
Under the principles of justice and the demand for rights that will protect
citizens from helplessness, the internal instances of political parties are not
sufficient:
«Under the circumstances, no better option has been studied to provide
protection for political-electoral rights than the intervention of the State’s
jurisdictional agencies – concretely, those which are dedicated to electoral
matters – because of their external relationship to political parties, they have
the specialization, impartiality and legitimacy that are needed for said task
(Terrazas y Delgado, 2003: 3)»
Trials for the Protection of Citizens’ PoliticalElectoral Rights
 The act of violating political-electoral rights is traditionally and uniquelly
committed by electoral authorities
 As such, there are spaces for protective actions, but if they do not consider
political parties as passive subjects
 However, should political parties be tried in order to protect citizens’ politicalelectoral rights?
Constitutional Justice
Electoral
Authorities
Citizen
Political Parties
Conclusions and Perspectives
 The region’s current political processes have strengthened the role
and importance of electoral institutionality, forming part of a historical
moment that is setting the stage for new opportunities
 It is essential that democratic channels for constitutional control over
electoral authorities be guaranteed, thereby systematizing, clarifying
roles and institutionalizing them
 These controls should be extended to cover periods between
elections and the relationship between electoral tribunals and the
highest instance of constitutional control should be carefully thought
through
 The role of Political Parties cannot be made invisible. On the contrary,
it should be strengthened with the objective of making democracy
more participative and of a higher quality
 The encouragement of direct democratic mechanisms can
marginalize Political Parties and risks the deinstitutionalization of civil
society
Thank You
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