Sviatlana Tsikhanouskaya’s special representative for elections, Aliaksandr Shlyk, presented the concept of the new Election Code of the Republic of Belarus.
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Concept of the Electoral Code of the Republic of Belarus
Main directions
The transition to democratic elections in Belarus and their institutionalization will require a revision of election legislation. This review should lay the foundation for fair and free elections and sustainable democratic development over the long term. It must be understood that the first free elections after a period of authoritarian rule often take place without significant difficulties. Political competitors feel the importance of the historical moment of transition to a democratic form of government, and voters are united by an awareness of freedom. In subsequent electoral processes, political competition intensifies, voters give more clear preference to different political forces, and political confrontation can lead to the polarization of society. The preservation and consolidation of democratic elections as an institution will be associated, among other things, with the success of the model for organizing the electoral process and the viability of the chosen approaches. This concept outlines the main directions for reforming electoral legislation and proposes certain solutions based on the comparative experience of countries in transition (i.e. transition to a democratic form of government), as well as scientific research. Each intended direction is accompanied by justification and key provisions for enshrinement in legislation.
The provisions of the draft Electoral Code will be based on the preconditions laid down in the draft Constitution of the Republic of Belarus, prepared by the Public Constitutional Commission. At the same time, some of the solutions proposed in the concept provide possible adjustments to the text of the draft Constitution.
Each of the topics in this concept deserves a separate expert discussion, after which steps can be taken to formulate the provisions of the electoral code.
- Electoral system
Direction. Protection against frequent changes.
Justification. One of the significant problems in new democracies is the frequent change of electoral laws in the interests of the current political majority. To ensure stability of the rules of political competition, the fundamental elements of the electoral process must be protected from such frequent changes. This applies primarily to the choice of the electoral system, as well as the system and methods of forming electoral bodies (commissions).
Electoral systems are generally divided into two main types: majoritarian and proportional. However, there is a significant variety of systems within each type, as well as mixed systems that contain elements of both types. The informed choice of an electoral system is a matter of constitutional construction. Each electoral system influences intra–party and cross–party competition, and thereby sets the preconditions for the formation of a certain political landscape. For example, research shows that a majority electoral system with single–member electoral district (first past the post) tends to lead to a two–party political system over time. Proportional systems promote the representation of a larger number of parties in parliament and prevent excessive concentration of power in the hands of one political force, but can complicate the formation of a government, etc.
To consolidate a democratic form of government, not only the choice of an electoral system is important, but also its stability. Stability encourages political forces not to try to gain an advantage in elections by changing the rules of the game in their favor, but to form a democratic tradition of playing by the rules.
Key points. The choice of electoral system remains the prerogative of political players, who must take into account both international experience and scientific research. The electoral system can be defined both in the Constitution and in the electoral code. It is important that both the Constitution and the electoral legislation establish a list of points that can be changed only if the adopted law on changes is confirmed by the parliamentary majority of the next convocation (and elected at the next, and not early elections).
- Legislation
Direction. Codification and parallel development of related laws
Justification. Codification of legislation avoids conflicts between the provisions of different laws after their (inevitable) modification. The 2020 Venice Commission Report on Electoral Law and Election Administration in Europe recommends the codification of electoral legislation. The Electoral Code should also contain provisions for holding a referendum. There is a risk of populist use of the referendum instrument to resolve conflicts between elected bodies during the formation of democracy. Taking into account this, the adoption of a separate law on referendums carries the risk of opportunistically modifying the principles of holding referendums in such a way that the conduct of elections and referendums will be based on different approaches.
An important subject for discussion during the development of the electoral code should be the role of political parties and other entities in the electoral process. Due to the expected instability of the party system and the likely emergence of new parties, the growth and decline of the influence of existing ones, it is proposed to limit the role of parties in the administration of elections and allow them to focus on their primary role as subjects of political competition. The development of the provisions of the electoral code should be carried out in parallel with the development of principles and approaches to regulating the activities of parties.
Key points. Priority should be given to the development of an electoral code, rather than separate legislative acts for different types of elections or to regulate the activities of individual entities involved only in the electoral process (for example, the Central Election Commission). Provisions on a referendum should be enshrined in a separate section of the electoral code. The development of related legislation should be carried out in parallel, and special attention should be paid to the role of political parties.
- Organization of elections
Direction. Maximum autonomy of the system for forming electoral bodies (commissions) from political parties and election competitors. Formation of professional electoral bodies of the highest and middle levels.
Justification. In many countries of the transition period, the formation of electoral bodies was based on the principle of political representation – election commissions were formed entirely or predominantly from representatives of political competitors participating in elections. The idea was that this approach would strengthen political rivals’ confidence in the integrity of elections during the transition period. However, this approach to forming electoral bodies is almost never practiced in developed democracies, especially in Europe. Proponents of this model believed that as confidence in elections increased, the need for political representation on commissions would decrease.
It must be stated that this idea did not live up to the hopes placed on it. In conditions of intense political competition, it turns the fight for votes into a fight over who will count the ballots. Instead of building trust in the process, political representation on commissions sows mutual suspicions of manipulation. Competitors who manage to control election commissions try to make the most of it. Political forces that are not represented in the commissions are convinced that their votes will not be counted fairly, and that the way to protect their votes lies precisely through representation in the commissions. Registration of phantom parties to obtain a quota of representation in election commissions, trading of seats in commissions between political competitors are just some of the results of the practice of forming commissions from representatives of political parties and candidates.
The path to strengthening trust in the honest work of electoral bodies lies in another plane – maximum autonomy in the formation of electoral bodies from various political forces, as well as ensuring the professionalism of the work of electoral bodies and its transparency. To form a Central Election Commission, mid–level commissions, as well as precinct commissions, it is necessary to combine the principles of professionalism and maximum involvement of ordinary voters in organizing the process as members of commissions, which will help improve civic education and instill democratic values.
Proponents of the party/political principle of forming commissions often point out that membership in commissions helps parties monitor the integrity of their competitors or the integrity of the commission itself in performing its functions. This function of essentially political struggle can be realized without membership in the commission – it is enough to have the opportunity to send observers from a political party within the framework of the rules that give the observer fairly broad powers. Thus, the advantages of the participation of party representatives in the work of commissions can be realized without membership in the commissions.
International experience shows that party representation on commissions does not always improve the decision–making ability of commissions, does not always protect them from the political influence of larger parties or their alliances, and often leads parties less represented on commissions to question the outcome of elections.
Key points.
CEC: an odd number of members (for example 9) who will be appointed by parliament from lists of candidates presented by non–state and non–political institutions and associations enjoying public trust (for example, three members each from the lists of the Academy of Sciences, the association of notaries, the association of solicitors or lawyers, the Council of Rectors of the Republic of Belarus, etc.; the list may include up to 6 candidates). Members of the CEC must enjoy guarantees of independence and irremovability at least to the same extent as judges of the Constitutional Court. The term of office is at least one election cycle.
Regular rotation of some CEC members is often seen as a guarantee that the composition of the CEC will not reflect the political configuration at a given time. During the period of transformation, it is utopian to expect that the political configuration will be stable. Therefore, every possibility of a change in the composition of the CEC will represent an opportunity to influence the outcome of the elections.
In addition to the fact that replacing some of the CEC members creates the risk of creating a political majority within the CEC, it can lead to a loss of accumulated experience. A one–time replacement of all CEC members is justified by the fact that it presupposes a balance of interests of many political forces throughout the commission, even if the CEC members do not formally represent political parties. In addition, the appointment of a new CEC composition is easier to organize in advance of the elections than the mandatory appointment of a part of the members.
Mid–level commissions: The CEC, on a competitive basis, forms in each region a register (“pool”) of personnel who are trained to work in mid–level commissions. Passing an exam and periodic training is required. Remuneration for completing training and serving on committees should be provided. The creation of such a registry may take up to 1 year.
Precinct commissions: formed from willing citizens. They undergo basic training (in–depth for chairpersons) and a procedure knowledge test. They receive remuneration for working in commissions.
Political parties can encourage their members and supporters to receive training and have a chance to be appointed to election commissions. With this system of appointing members to commissions, the distance between parties and members of commissions is maintained, and members of commissions receive the knowledge necessary for functioning independently of parties.
The structure of electoral bodies must be consistent with the electoral system and be applicable to the conduct of elections of various types. If the majoritarian component of the electoral system is preserved, it is proposed that a mid–level commission be formed at the level of majoritarian constituencies for the election of deputies. In this way, the number of district commissions will be formed, each of which will be responsible for approximately 60 PECs. This commission structure will be used to conduct presidential and parliamentary elections, as well as republican referendums. To conduct local elections, regional and district election commissions will be formed, whose role will be limited to summing up the results of elections to local councils of deputies of the relevant territories. When local and national elections are held simultaneously, some of the district commissions perform the functions of district commissions for the conduct of national elections. In the event of a transition to an exclusively proportional system, it is proposed that for holding presidential and parliamentary elections, as well as republican referendums, mid–level commissions should be formed at the level of districts and cities of regional subordination. To conduct local elections, election commissions will be formed, whose role will be limited to summing up the results of elections to local councils of deputies of the relevant territories.
- Voter registration
Direction. Creation and use of a unified register of voters based on the register of citizens.
Justification. The most progressive option in the issue of voter registration today is a single list of voters, which is formed on the basis of the register of citizens. Belarus is a fairly centralized country, and therefore the transition to a single list will not be an overly complicated process. The CEC may initially be responsible for creating and maintaining the list, but later other bodies may be created or functions may be assigned to citizen registration bodies. Transparency of voter lists must be ensured taking into account the protection of personal data, namely, voters can only check their data on the list.
Key points. Right to vote must be universal without exception. A unified electoral list, which is formed on the basis of the register of citizens and permanent registration addresses. It must be possible to be included on the list on the basis of registration of temporary stay. Registration abroad can be carried out on the basis of an application upon exclusion from the lists in the country. Data on the total number of voters in the country and in each precinct, and broken down by gender, must be subject to mandatory publication.
- Registration of candidates
Direction. Ensure political pluralism and fair competition in elections
Justification. Access to participation in elections cannot become a weapon of political struggle – otherwise elections will lose their democratic essence. The main criteria for admitting a party or candidate to elections are the presence of minimal support from the electorate and seriousness of intentions. In practice, these criteria are controlled by tools such as proof of voter support and electoral deposits.
Proving minimum voter support depends on the electoral system and the size of the electorate. International good practice suggests collecting signatures from no more than 1% of voters in a district. Parties represented in parliament may be exempt from this requirement. Verification of signatures should be based on clear criteria, carried out transparently and leave room for correction of minimal technical errors.
The size of the electoral deposit should demonstrate the seriousness of the competitor’s intentions to participate in the elections, but not be a property qualification. The simultaneous use of both the pledge and the collection of signatures in support of potential candidates should be avoided.
Key points. Candidates or parties that meet the minimum support and seriousness criteria must register to vote. An appeal is only possible in case of registration refusal. The number of support signatures required for registration will depend on the model chosen – either a minimum reasonable number of obviously reliable signatures, or a larger number of signatures with clear criteria for verification. The electoral deposit, if applicable, is returned to candidates and parties that achieve a minimum result (for example, 1% of the vote in the district).
- Election campaign
Direction. Provide opportunities for free competition. Limit the ability to deregister a candidate.
Justification. Basic conditions for free campaigning and competition are created through respect and protection of fundamental rights and freedoms, the main ones during the election period will be freedom of opinion and freedom of speech, the right to assembly peacefully, freedom of association, freedom of movement. These rights should be protected at the constitutional level, and electoral legislation should help interpret controversial issues based on the interests of the voter. A fair competitive environment allows candidates and parties to compete for votes using their ideas and arguments, skillful campaigning and compelling platforms, rather than “shooting down” competitors. Cancellation of registration means the actual deprivation of the right to be elected, therefore such a measure can only be used in extreme cases – for example, if there is indisputable evidence that the candidate has committed certain criminal acts.
Key points. Interpretation of the protection of fundamental rights and freedoms laid down in the Constitution and other laws in the interests of voters. Administrative bodies are obliged to maintain neutrality. Candidates’ use of public resources for campaigning purposes should be prohibited. Political parties and their representatives, including their elected representatives or representatives holding public office, have the right to take an active part in the campaign, subject to the temporary resignation of official duties, with the possible exception of the President and Prime Minister. Withdrawal from the election race should be possible only on very narrow grounds; such decisions are made by a specialized court (see below) in the presence of a CEC opinion, with the possibility of appeal.
- Financing of election campaigns
Direction. Ensure transparency and accountability of candidates’ finances. Providing a wide range of funding opportunities for candidates.
Justification. Issues of financing election campaigns are very important for the quality of elections and must be comprehensively resolved. Without sufficient funding, candidates and parties have little chance of campaigning effectively and getting their message across to voters. At the same time, transparency and accountability must be guaranteed. Opportunities for both public and private funding should be provided, including all possible types of donations, but without encouraging excessive spending.
For the development of parties, it is necessary to provide provisions for certain financing of the activities of parties from the state budget in proportion to their results in elections. These provisions can be enshrined in the electoral legislation, but it is better that these provisions are in a specialized law on political parties.
Key points. Public funds will be allocated in the form of free meeting places with voters, general election posters and free airtime on state media. Private donations are allowed within certain limits from individuals, legal entities in monetary and in kind form. Anonymous donations are prohibited. Regulation of the participation of third parties in election campaigns is provided in order to ensure transparency and proper control. The spending limit is not set too high.
Candidates must open accounts for the election fund. If the campaign period is kept to one month, it seems optimal to submit three mandatory reports – at the beginning of the campaign, before election day and after election day. Mandatory publication of detailed reports. The role of the CEC in regulating funding may be limited to the consideration of complaints, but it may also be much more active, including initiating investigations.
For violation of the requirements of legislation on the financing of election campaigns, there should be proportionate sanctions, primarily related to warnings and public dissemination of information about violations, as well as financial (fines). Cancellation of registration may be provided for exceeding the maximum expenditure limit.
- Media
Direction. Creating a basic framework for the work of the media during the election campaign.
Justification. General legislation in the field of freedom of opinion and freedom of speech will be extremely important. However, some issues specific to elections should be minimally regulated in the electoral legislation. Precisely minimal, since in matters of media and freedom of expression it is always better to leave more space than to over–regulate.
The development of the electoral code should take into account approaches to regulating the activities of the media in general. It is not enough to prescribe in the election code the principles of media activity within the framework of an election campaign, since such principles may conflict with general approaches to regulating the activities of the media. The overall approach must take into account the special role and responsibility of public media and their obligation to ensure equality and objectivity in coverage of the campaign and individual candidates. While private electronic media (radio, TV) may also have an obligation to provide equal opportunities to candidates, the requirement of objectivity can only apply to them if editorial freedom is respected. Here, the prerequisite for regulation is the use of public resources (frequencies) by such media, which cannot be applied as a basis for regulation to the press and Internet resources. The latter, like electronic media, can also enter into self–regulatory relationships by creating their own mechanisms for resolving complaints independent of the state.
Oversight of the media during elections and referendums should be the responsibility of an independent and adequately resourced oversight body with the mandate to undertake comprehensive media monitoring. Professionalization or political balance in the composition of this body will be a prerequisite for its impartiality and professionalism. The handling of media–related complaints must be clearly regulated to ensure effective remedies.
Key provisions. Strengthening the principles of impartiality of coverage, independence of editorial policy, equal access of candidates to the media and equal access of the media to information. Strengthening the definition of political advertising, its regulation and transparency, adhering to the main goal that it should enable voters to make an informed choice. No advertising in the news and mandatory labeling of non–editorial materials. The presence of a specialized independent body that supervises the media during election campaigns.
- Consideration of complaints
Direction. Separation of the function of organizing elections from the function of resolving disputes. Clear jurisdiction and jurisdiction of various categories of complaints.
Justification. The electoral system should be responsible for organizing elections. When it is entrusted with the functions of considering complaints, this makes the commissions platforms for political squabbles and entails significant time and resource costs, which often do not provide effective protection of violated rights. Proper handling of election complaints requires proper legal qualifications and experience, which are not necessary to administer elections.
To create a stable and uniform practice of applying legislation, it is necessary to centralize the complaints handling system. It is also necessary to take into account that filing complaints for certain political forces may be one of the ways of conducting an election campaign. Complaint handling bodies must have sufficient authority and independence.
Key positions. Complaints about decisions, actions or inactions of any election commissions before voting day will be sent to the CEC, which will consider them administratively. For judicial appeal of the actions of the CEC and consideration of complaints against other entities, a specialized court will be created, which will operate only during the election period. The specialized court will include a sufficient number of judges to ensure its work in two instances: compositions of 3–5 judges (first instance) and in plenary composition (appeal). Judges of the specialized court will be randomly selected by the CEC from the lists of judges of regional and high courts for the election period.
Before voting day, the specialized court will also consider complaints against decisions, actions or inactions of bodies other than the commission or against election competitors. The consideration period will be sufficient to ensure effective protection of violated rights and a comprehensive examination of the circumstances of the complaints.
On election day, complaints about violations, as well as any comments and suggestions, will be recorded by the PEC and subsequently analyzed by the CEC to determine whether the violation affected the election results. Appeals against voting results in certain precincts, constituencies or election results will be made in court, and the right to such appeal will be given to voters, observers, as well as candidates and parties participating in the elections.
The majority of complaints will be finally considered by the first instance of a specialized court. An appeal to the plenary composition will be possible only in limited categories of cases – such as the removal of a candidate or party from the election race and appealing the results of voting (elections).
- Observation
Direction. Ensuring maximum transparency at all stages of the electoral process.
Justification. Transparency is the cornerstone of the electoral process. Sufficient detail and clarity of election legislation will help ensure transparency and freedom from manipulation by administrative bodies.
Key points. Civilian and international observers, media representatives, representatives of political parties and candidates should have the right to observe the process. The right to unhindered access to all stages of the electoral process and to obtain information relating to these stages must be ensured. The law should contain the rights of observers to study election documentation, attend meetings, observe election activities at all levels, and receive copies of decisions and protocols.
Restrictions on the rights of observers should be aimed solely at complying with their observation function and should include a prohibition on interfering with voting, campaigning at polling stations, assisting in voting and conducting voting. Additional restrictions in the form of a ban on campaigning during the campaign period should be placed on civilian and international observers. Observers will be guaranteed the right to receive a certified copy of the vote count protocols.
- Voting day
Direction. Legislation should describe procedures that guarantee the secrecy of voting, prevent abuse, ensure transparency of vote counting, and provide guarantees for the accurate transmission of voting results.
Justification. Many technical aspects of election day will be regulated in by–laws (CEC resolutions). But the fundamental elements that will help prevent fraud must be enshrined in the code, including prevention of politically motivated interpretations of legislative provisions.
Key points.
Voting will only take place on the Election Day. Clear criteria must be introduced for out–of–precinct voting. There should be strict requirements regarding the accessibility of polling stations for people with disabilities. Prohibition of the presence of unauthorized persons on the site.
Counting and summing up. Voting results from polling stations and copies of protocols, when ready, are posted on the CEC website. If a higher commission finds serious inconsistencies in the PEC protocol, it must decide on a recount. The decision to recount can also be made by the court on the basis of a complaint. The recount should be as transparent as possible.
All election materials must be stored until all possible appeal deadlines have expired.
- Referendum
Direction. Ensuring equality of parties and preventing government abuses.
Justification. Historically, referendums have been held in Belarus at the initiative and control of the authorities, and therefore new legislation should limit the state’s ability to manipulate the provisions on holding referendums, as well as expand the possibility of holding referendums at the initiative of citizens. The main goal should be to create equal opportunities for supporters and opponents of the referendum issue.
Key points. All deadlines for a referendum must be clearly stated so that government bodies do not have the opportunity to make any decisions on deadlines at their own discretion.
When registering initiative groups, provisions must be made for the correction of minor errors and omissions. Signature verification provisions should aim to establish the required number of valid signatures.
Equality of opportunity must be guaranteed to both supporters of the referendum and opponents. Campaign provisions must be clear to ensure clarity as to their applicability to referendums and adequate guarantees of equality of opportunity and access for referendum participants. Sufficient time must be allowed for the campaign. Administrative bodies are obliged to maintain neutrality. The use of public resources for propaganda purposes should be prohibited. Political parties and their representatives, including their elected representatives or representatives holding public office, have the right to take an active part in the campaign, subject to the temporary resignation of official powers. Persons responsible for organizing and observing the referendum are subject to restrictions on participation in the campaign.
Equal financial opportunities must be ensured. Financial transparency and accountability should be provided in a similar manner to elections.
Transparency of the entire referendum process must be guaranteed, starting from the creation of initiative groups and the announcement of the results.
January 4, 2022 at 15:20
