The most fundamental questions we must ask ourselves are why the legal framework is important for the holding of democratic elections and what exactly the term “legal framework” means. The answer to the first question is convincing in a publication by the National Democratic Institute for International Affairs (NDI) entitled Promoting Legal Frameworks for Democratic Elections: The term “codes of conduct” can refer to various phenomena. Three code cases should therefore be excluded in advance. They all concern electoral issues and even the conduct of the elections themselves, but they respond to a different reality from the authentic codes of conduct that are part of the legal structure of the processes: one doctrinaire sector advocates giving equal meaning to the terms “referendum” and “referendum”. However, the classical theory of constitutionalist doctrine states that the name referendum applies only to popular consultations on the approval of legislation. The term semi-direct democracies has been attributed to representative and democratic systems which, within their legal framework, also recognize certain figures of direct participation of citizens in legislative processes, decision-making in public affairs or the dismissal of officials, i.e. referendum, referendum, popular initiative, withdrawal of mandates, etc. (figures that could be classified in the genre of referendums). It is important to assess the extent to which a country`s electoral frameworks comply with international standards. Such an evaluation can provide a set of constructive suggestions to improve and correct the legal framework and to introduce more effective procedures to improve legislation. At the same time, it should be emphasized that there are no general or “one size fits all” models in the electoral rules.
As a result, systems and practices in one country are not necessarily ideal for another. There is no doubt that democracy today is a party democracy and that the electoral system, in order to be truly so, must refer to a multi-party system. Only in this context is it logical to speak of free and competitive elections. On the contrary, the one-party system is also not admissible as a theoretical option in the context of a discussion of the legal aspects of electoral processes. Constitutional and legal frameworks are fundamental documents of the State that provide the context and legal environment in which elections are held. A country`s constitution should facilitate that country`s legal framework and serve as a basis for free, fair, credible and legitimate elections[i]. Legal frameworks should support the right of voters, political parties and candidates to appeal to legitimate authorities or courts to challenge any violation of citizens` rights. The legal framework should oblige electoral authorities and electoral tribunals to adjudicate appeals relating to violations of the right to vote and to provide the means to implement them expeditiously. In order to obtain final decisions on electoral matters, the electoral law should empower higher authorities to review low-level policies and decisions. The decisions of higher authorities and courts must be implemented without delay.
At present, the role of electoral tribunals and their decisions is so important that, in some cases, they are not only aware of the legality of laws and decisions of other electoral authorities, but even of their constitutionality and become specialized constitutional courts in electoral matters, whose decisions and precedents are translated into direct interpretations of the Constitution. Related value: Justice Why this value? If an illiterate person who does not know the law is in a legal situation, he or she cannot assert his or her rights. Every citizen of our country has the right and the duty to know how laws work in order to be treated fairly. Without falling into extremist positions (neither blind admission nor absolute rejection), an acceptable practice could be to include in the legal framework of a fully justified and limited representative democracy, one or two personalities of semi-direct democracy, to implement their progressive application and to rigorously evaluate their results. Similarly, experience shows that it is acceptable to test the functioning of these mechanisms from their application in small municipalities (districts, municipalities, states), so that the process of regulating them would begin with local or regional regulations before moving to the national legal framework. The legal nature of this popular participation in the formation of the law is discussed and considered as an act of ratification, disapproval or decision, the doctrine tending to evaluate it as an autonomous act of decision-making which, added to that of the representative, leads to the statutory provision which receives heat only when it has been submitted and approved by the plebiscite. The representatives form the law, but ad referendum, i.e. subject to what the electorate decides, and form the referendum under a suspensive condition, which is subject to the validity and effectiveness of the law.
The main chapters are presented in a general and inexpensive way to go into more detail later. Each section contributes to a better understanding of the contexts that underpin both legal frameworks and decisions. All countries are free to choose the most appropriate electoral system. However, this freedom is limited and, for the system to be considered democratic, it must be established in accordance with international norms and principles.
