The Absence of a Procedure on Electoral Complaints in the first round of the Presidential Election JSMP 11 May 2007
The first round of the presidential elections, on 9th April 2007, was deemed mostly free and fair by international observers; national observers have presented mixed findings. JSMP is proud to congratulate the Timorese people on the smooth running of their very first independent presidential election.
JSMP would like to note, however, that one of the basic components of a free and fair electoral process is that voters and candidate representatives are able to make complaints on electoral irregularities and challenge poll results. This procedure must be laid down in law as well as being widely publicised and known. JSMP is therefore concerned that the Procedure on Electoral Complaints[1] was only approved four days after Election Day and was not published in the National Gazette until 19th April, the day that CNE handed over the preliminary results to the Court of Appeal.
A very large proportion of the complaints submitted to the CNE during the first round of the Presidential election had to be rejected on the grounds that they provided insufficient information or that they did not present sufficient evidence. Many did not include contact details for CNE to respond to the complaint. Had the Complaints Procedure been adequately publicised beforehand, requirements might have been better understood and the complaints system could have been better utilised by aggrieved voters or candidates.
The delay seems to have been due mostly to differing interpretations of the legal provisions governing the competencies of the Secretariado Técnico da Admistração Eleitoral (STAE) and the Comissão Nacional de Eleições (CNE), as well a lack of cooperation between these two bodies. It is urgent for these provisions to be clarified and for information on the electoral complaints process to be disseminated before next elections.
I Law on electoral complaints
The complaints procedure in its broad form can be pieced together from various existing laws. Laws 5/2006 on Electoral Administration Bodies, 6/2006 on the Election of the National Parliament and 7/2006 on the Election of the President of the Republic, as well as regulations such as that on Electoral Campaigns[2], and Polling and Counting Procedures[3], all contain elements detailing parts of the complaints procedure. However, until the publication of the Complaints Procedure, there was no single document that provided a clear overview of all the steps involved in filing and following up an electoral complaint or protest. This made it difficult for STAE to train voting officials in how to deal with complaints, and virtually impossible for voters and candidates to understand their right to protest or complain about an electoral misdemeanour.
Art 13 of the Complaints Procedure states that it enters into force upon publication, which means that it was not in force at the time of submission for any of the claims which arose during the first round of the presidential elections. Indeed, the Constitution states that legislation must be published and failure to do so results in it being null and void[4]. Additionally, according to Law 1/2002, the earliest that a piece of legislation can enter into force is the day after its publication.[5] Consequently, the earliest date that the Complaints Procedure could have entered into force is 20th April. The final results were announced the next day.
The delay in formalising this piece of legislation stems from the poor cooperation between STAE and CNE. As JSMP understands it, regulations on electoral matters are normally made by STAE submitting the regulation to CNE for approval. However STAE refused to submit the draft Complaints Regulation to CNE, arguing that complaints do not enter into its competencies and that it cannot therefore submit a proposal to CNE. Meanwhile, CNE lacked the confidence in its own competencies to go ahead with the procedures, without passing them through STAE (although it ultimately did go ahead with them alone). JSMP would therefore like to explore the judicial ties between these two institutions.
II Mandate of the CNE
The CNE’s structure and mandate are set out in Law 5/2006 on Electoral Administration Bodies. It is established as an independent body “to supervise the electoral acts referred to by the present law [Law 5/2006] and regulations enforcing electoral or referenda laws”.[6]
Amongst other things, CNE has the competency to:
* Ensure the enforcement of constitutional and legal provisions relating to the electoral process[7]
* Approve the enforcing regulations provided for in the present law and other electoral laws (…)[8]
* Perform other functions assigned to it by law[9]
Above all however, Art 10 of Law 5/2006 lays down the obligation of collaboration between electoral administration bodies:
“1. In the exercise of its competencies, CNE shall receive all the necessary support from the bodies and staff of the Public Administration to enable it to carry out its functions.
2. For the purposes of item 1 above, STAE shall provide CNE with the support and collaboration requested by the latter.”
Finally, Art 11 of Law 5/2006 provides that “CNE shall prepare and approve its own rules of procedure”.
With regard to its more specific role in the complaints process, Art 35 of the Regulation on Electoral Campaigns[10] states that candidates, parties and coalitions whose campaign rights are affected may present claims to the CNE. More importantly, Art 35 (2) reads:
“The CNE shall establish a system to assess claims, based on a regulation of procedures approved by the CNE”
This is the clearest wording of any provision governing CNE’s role in passing procedures for the resolution of complaints. Its function in the complaints process during other stages of the electoral process are dealt with in Law 7/2006 (Art 43-47), in Law 6/2006 (Art 25, 45, 46 and 49) and in Regulation 035/STAE/II/07[11] (Art 13 and 23).
In summary, STAE and CNE share the responsibility for the lawful running of elections and referenda, including ensuring voters’ rights are respected. One of these is their right to file complaints on electoral matters since the right to a remedy for the violation of a right is also a fundamental human right.
III STAE’s Competencies
STAE is under the jurisdiction of the Ministry of Public Administration and is mandated to see to the practical organisation and execution of electoral processes, referenda and electoral registration, as well as to support, consult and disseminate reports and other data in the field of elections.[12]
Art 6 of the Organic Statute of STAE describes the more specific duties of STAE, in particular:
* Art 6 (c), “to ensure and execute the necessary actions for the timely implementation of electoral acts (…)”
* Art 6 (d), to “propose adequate means of clarification, training, and information for the participation of citizens in electoral acts, as well as to ensure the correct performance of the different agents of the electoral administration and the functioning of the services”
* Art 6 (e), to “plan, execute and technically support the carrying out of elections and referenda, (…)”
* Art 6 (h), to “support and collaborate with the (…) CNE, within the terms of the relevant applicable law” [13]
With regard to the preparation of regulations pertaining to the electoral process, the relevant provisions are in Art 65 (1) of Law 6/2006, and 67 (1) of Law 7/2006, the wording being identical:
“1. The norms of procedure relating to presentation of candidacies, electoral campaign, the functioning of polling stations and the counting of votes and tabulation of results shall be contained in regulations prepared by STAE and approved by the CNE.”
STAE has presented this section as an exhaustive list of its competencies. However, in JSMP’s view, it should be interpreted in the spirit of the whole body of law surrounding the elections as examined above. Taking into consideration that STAE has a duty to cooperate with CNE and underscoring the fact that the complaints process is an intrinsic and inseparable part of the electoral process, it is very difficult to understand STAE’s refusal to cooperate on the enactment of the Procedure for Complaints.
Conclusion
It appears then that the delay in enacting the Complaints Procedure was unnecessary. STAE should have submitted the Procedure for approval by CNE, and when they refused to do so, CNE should approved the procedures itself, prior to the first found of Presidential elections. The absence of a complaints procedure deprived the election legal framework of one of its most important components. JSMP finds it regrettable that STAE refused to fulfil its duty of cooperation with CNE, when it is responsible for ensuring all the practical aspects of running free and fair elections. JSMP also regrets that CNE, in the face of this refusal, did not take swifter action and pass and publish the Procedure before Election Day.
JSMP appreciates the magnitude of both STAE’s and CNE’s tasks, but would recommend that they adopt a less narrow interpretation of their duties. They share the same goal of organising and supervising free, fair and transparent elections and should acquit themselves of this task in close cooperation. JSMP would further welcome a revision of the Procedure before the Parliamentary Elections to make it more detailed. Amongst other things, we would like to see deadlines being lengthened to take into consideration the practical constraints on submission and consideration of complaints in light of East Timor’s topography and infrastructure, as well as the small number of staff available for treating complaints. JSMP would be happy to discuss this further with either institution.
[1] Procedimento para Reclamações (Complaints Procedure), Jornal da República, 19th April 2007
[2] STAE/III/2007, Jornal da República, 16 March 2007
[3] Regulamento sobre o Processo de Votação e apuramento dos Resultados para a Eleição de Presidente da República (Regulation on Voting and Counting Procedures for the Election of the President of the Republic) 131/CNE/II/07, Jornal da República, 4 April 2007, updated by 160/CNE/IV/07
[4] Constitution of the Democratic Republic of Timor Leste, Art 73(1) and 73(2)
[5] Law 1/2002, Publicação dos actos, Jornal da República, 4 June 2003
[6] Art 4, Law 5/2006, Jornal da República, 28 December 2006
[7] Art 8(b), Law 5/2006
[8] Art 8(c), Law 5/2006
[9] Art 8(j), Law 5/2006
[10] STAE/III/2007, Jornal da República, 16 March 2007
[11] Regulamento sobre Apresentação de Candidaturas para Eleição do Presidente da República e dos Deputados ao Parlamento Nacional (Regulation on the Presentation of Candidacies for the Election of the President of the Republic and of Deputies of the National Parliament 035/STAE/II/07, Jornal da República, 16 February 2007
[12] Art 5, Decree-Law 1/2007, Estatuto Orgânico do Secreteriado Técnico da Adminstração Eleitoral, (Organic Statute of the Technical Secretariat for Electoral Administration), Jornal da República, 18 January 2007 (“The Organic Statute”)
[13] Ibid.
