Armen Mazmanyan - Adjudication of electoral disputes by constitutional courts - 5 May 2015
Channel: Electoral Integrity Project
Date: 2015-05-11

Download the paper at: http://bit.ly/1DzUO5Z
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Over 35 countries all over the world empower their “Kelsenian” constitutional courts, specialized tribunals which maintain a monopoly over adjudication of constitutional matters (constitutional courts), to resolve electoral disputes. In the context of the debate on the pros and cons of electoral dispute resolution systems involving constitutional courts, this paper examines whether constitutional, vis-à-vis general courts, are better fit to maintain the higher standards of electoral integrity. This paper argues that electoral integrity often suffers from legalism wherever this is an entrenched legal tradition and that the choice of electoral dispute adjudication system in such contexts may be of importance for upholding international standards of electoral integrity. The paper defines legalism in the electoral context and argues that legal cultures affected by excessive legalism, such as those carrying the heritage of continental positivism on one hand, and Marxian legal scepticism on the other, have negative effect on electoral integrity by default. Electoral integrity is defined in terms of international commitments and norms on elections as provided in relevant treaties and other authoritative documents (Norris, 2014). Legalist traditions tend to write laws in a very technical and detailed manner, micro-managing human behavior to some substantial degree by stipulating multiple rules and procedures, and often give priory to these rules and procedures over universal values and fundamental principles, thus negatively affecting the standards of electoral integrity. Through a citation-count study of judicial decisions in four post-Soviet countries (Armenia, Moldova, Ukraine and Russia), the paper tests a proposition that constitutional courts are less vulnerable to legalism than general courts. The citation-count reveals the degree to which each type of courts are accustomed to referring to fundamental moral values such as freedom, fairness and equality, universally recognized human rights, and the relevant constitutional and international norms enshrining these. The method of citation-count analysis is adapted to testing and comparing the “judicial mindset” in both non-electoral and electoral contexts, and across the judicial jurisdictions and selected countries. The paper further examines the degree to which different courts in the target region have applied and activated such values and norms in confronting electoral malpractice in their countries.  

Discussant: Noric Dilanchian
Chair: Dr. Ferran Martinez i Coma (University of Sydney)

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The Electoral Integrity Project is an independent research team based at the University of Sydney and the John F. Kennedy School of Government at Harvard. It explores many issues, focusing upon three main questions: 

- When do elections meet international standards of electoral integrity? 
- What happens when elections fail to do so? 
- And what can be done to mitigate these problems? 

For more information see: www.electoralintegrityproject.com