International Foundation for Electoral Systems
manner that protects procedural justice rights. Conversely, while tribunals or courts dealing with
election disputes may have the requisite judicial knowledge and infrastructure, specific understanding of
the challenges unique to election cases may be lacking, and courts may be constrained by unrealistic
deadlines or procedures that impact the effective management and resolution of election cases.
Drawing on comparative examples across six countries (Mexico, Tunisia, Kenya, Macedonia, Kosovo and
the Philippines), this paper examines the various elements of procedural justice and open justice, and
how case management mechanisms – and the rules of procedure underpinning these mechanisms – can
assist EMBs, tribunals and courts to deliver just and transparent processes and outcomes. This
examination is broken down into two areas of analysis: the rules of procedure in place to govern the
resolution of disputes, and the way these rules are applied in practice.
III.
Procedural Justice and Open Justice in Electoral Disputes
International principles protect the right to be treated fairly, and to receive an effective remedy,
through the efficient and transparent administration of justice.16 This involves both the protection of
procedural justice or due process (for the individuals involved in an election dispute) and the
advancement of open justice (for the public at large who have a stake in the legitimacy of the election
process and outcome). Taken together, the various elements of procedural justice and open justice
require that courts and tribunals put in place rules of procedure and complaints management practices
that strike a balance between the fair, efficient, effective, and transparent administration of justice. In
IFES’ experience internationally, procedural justice and open justice is often taken for granted in more
established democracies but is frequently missing in countries with less developed electoral and judicial
institutions – particularly with respect to the rules and processes followed by quasi-judicial institutions.
IFES has also found that significant attention is often paid to the independence and impartiality of
judges or arbiters making decisions on election cases, while the mechanisms through which these cases
are managed are often overlooked (and hence are examined in this paper).
Procedural Justice Principles
Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and Article 10 of the
Universal Declaration of Human Rights (UDHR) guarantee the right to due process (or otherwise
discussed in this paper as “procedural justice”). That is, all people are equally entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law.17 This right to
16
Icelandic Human Rights Centre, The Right to Due Process, http://www.humanrights.is/en/human-rightseducation-project/human-rights-concepts-ideas-and-fora/substantive-human-rights/the-right-to-due-process (last
visited Aug. 28, 2017). In addition, one of the core standards identified in 1990 by the U.S. Commission on Trial
Court Performance Standards is the requirement for expeditious, fair, and reliable court functions, so that “the
public has trust and confidence that basic trial court functions are conducted expeditiously and fairly, and that
court decisions have integrity.” See David Steelman, Caseflow Management: The Heart of Court Management in
the New Millennium, xvi (NCSC, 3 ed. 2004).
17
UNHCR General Comment No. 32 U.N. DOC. CCPR/C/GC/32, ¶ 9 (2007): “Article 14 encompasses the right of
access to the courts in cases of determination of criminal charges and rights and obligations in a suit at law. Access
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