Guidelines for Understanding, Adjudicating,
and Resolving Disputes in Elections
people have been freely and democratically expressed, that choice should
not be called into question, except in the presence of compelling grounds
for the democratic order.237 The law should thus provide for a gradation
in the possible sanctions that can be imposed on individuals or political
parties. For example, in April 2007 and in May 2008, IFES legal experts
released thorough analyses of the Thai electoral legal framework, and advised the state to change its organic law on political parties and political
finance.238 These analyses stressed the need for sanctions proportional
to the seriousness of the action and the degree of guilt (intentional, negligence, or mistake). The experts also recommended the establishment
of civil penalties for administrative violations, such as arbitrarily denying or
withdrawing candidate certification, as well as criminal sanctions.
The Philippines complaint adjudication system also provides an example
of the broad spectrum of electoral offense sanctions. In 2004, IFES reported that the penalties implemented by the Philippines electoral authorities were harsh and not proportional to the committed offense. These
harsh sanctions could discourage people from bringing a claim; a prospective claimant might not want to condemn a poll worker to jail time (the
sanction provided in the law) for an offense such as failing to post the voters’ list in the correct location.239 IFES recommended that the legislative
authority delink criminal and electoral law and establish sanctions more
appropriate for the offenses in question, such as fines, loss of media access, campaign restrictions, and public apologies. 240
Whether it is set in the electoral law or in internal rules of procedure, sanctions and penalties must be part of the electoral complaint adjudication
regime and they must be clear and proportional to the offense.
F. Enforcement Mechanisms
The right to a remedy cannot be effective if the sanction is never actually
implemented. Enforcement begins at the completion of a legal challenge;
Petkov v. Bulgaria, Eur. Ct. H.R., App. nos. 77568/01, 178/02 and 505/02, Judgment of 11
June 2009, ¶ 81.
238
Dahl et al., supra note 131, at 22; Kingdom of Thailand Report, supra note 163.
239
Erben et al., supra note 150, at 28-29.
240
Id.
237
76