capel 54 ing - corte idh 978-9968-611-36-7 1 derechos electoral 2. reforma electoral the materials...

Trends and perspectives of the Electoral Reform in Latin America

54Harry Brown Araúz

Manuel Carrillo Poblano

Jimena Costa Benavides

Pedro Figueroa R.

Claudia López

Miguel A. López V.

Ernesto Paz Aguilar

Rotsay Rosales Valladares

José Thompson

Fernando Tuesta Soldevilla

Elisabeth Ungar Bleier

Authors:

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CAPEL 54 ing.pdf 3/19/10 3:43:59 PM

CAPEL54Ingles.indd1 4/20/103:46:12PM

Inter-American Institute of Human RightsGeneral Assembly

(2007-2009)

Thomas BuergenthalHonorary President

Sonia Picado S.President

Mónica PintoVice-President

Margareth E. CrahamVice-President

Pedro NikkenPermanent Advisor

Mayra Alarcón AlbaLine Bareiro

Lloyd G. BarnettCésar Barros Leal

Allan Brewer-CaríasMarco Tulio Bruni-Celli

Antônio A. Cancado TrindadeGisele Côté-Harper

Mariano Fiallos OyangurenHéctor Fix-ZamudioRobert K. GoldmanClaudio Grossman

María Elena MartínezJuan E. Méndez

Sandra Morelli RicoElizabeth Odio Benito

Nina PacariMáximo Pacheco GómezHernán Salgado Pesantes

Wendy SinghRodolfo Stavenhagen

Inter-American Commission Inter-American Court of Human Rights of Human Rights

Paolo G. Carozza Cecilia Medina-Quiroga Luz Patricia Mejía Diego García-Sayán Felipe González Manuel E. Ventura Robles Florentín Meléndez Sergio García-Ramírez Victor E. Abramovich Leonardo Franco Clare Kamau Roberts Margarette May Macaulay Paulo Sérgio Pinheiro Rhadys Abreu Blondet

Roberto Cuéllar M.Executive Director


TRENDS AND PERSPECTIVES OF THE ELECTORAL REFORM IN LATIN AMERICA

SERIECUADERNOS DE

CAPEL


TRENDS AND PERSPECTIVES OF THE ELECTORAL REFORM IN LATIN AMERICA

IIHR-CAPELInter-American Institute of Human Rights

Center for Electoral Assistance and Promotion2009


First Edition©IIDH-CAPEL, Costa Rica, 2009

The opinions expressed by the authors on CAPEL NOTEBOOKS do not necessarily reflect the point of view of IIDH/CAPEL.

324I59-t

Instituto Interamericano de Derechos Humanos. Trends and perspectives of the electoral reform in Latin America / Instituto Interamericano de Derechos Humanos. -- SanJosé, C.R. : IIDH, 2009

194 p. 13X21 cm. (Cuaderno de capel; no. 54)

ISBN 978-9968-611-36-7

1 Derechos electoral 2. Reforma electoral

The materials published here may be reproduced in whole or in part, provided these are not altered, the corresponding credits are assigned, and copy of the publication or reproduction is submitted to the editor.

Production Team:

José ThompsonMaría Lourdes González AriasAcademic Coordination

Harry Brown Araúz, Manuel Carrillo Poblano, Jimena Costa Benavides, Roberto Cuéllar M., Pedro Figueroa R., Claudia López, Miguel A. López V., Ernesto Paz Aguilar, Rotsay Rosales Valladares, José Thompson, Fernando Tuesta Soldevilla, Elisabeth Ungar Bleier Authors

IIDH Information and Editorial Service UnitPrepress

Ileana AguilarComparison in Spanish

Ana Marcela HerreraTranslation to English

Walter MeoñoDiagramming

Imprenta y Litografía Segura HermanosPrinting

Inter-American Institute of Human RightsApartado Postal 10.081-1000 San José, Costa Rica

Tel.: (506) 2234-0404 Fax: (506) 2234-0955e-mail: [email protected]

www.iidh.ed.cr


7

Contents

Presentation ...................................................................................... 9

Electoral Reform in Latin America: Tendencies and Perspectives .......................................................... 13José Thompson

Electoral Reforms in Bolivia ......................................................... 25Jimena Costa Benavides

Present and Future of the Electoral Reform in Chile ..................... 45Miguel A. López V.Pedro Figueroa R.

The Political and Electoral Reform in Colombia: A Reform to Recover Politics ............................................................................. 71Elisabeth Ungar Bleier

The Winding Road of the Electoral Reform in Costa Rica ........... 89Rotsay Rosales Valladares

Current Situation of the Political Reforms in Honduras ............. 105Ernesto Paz Aguilar

The new electoral reform in Mexico 2007-2008 ......................... 129Manuel Carrillo Poblano


Electoral Reform in Panama ........................................................ 145Harry Brown Araúz

Electoral Reform in Peru ............................................................. 159Fernando Tuesta Soldevilla

Risks during the Local Elections in Colombia: A Comparative Analysis of the Last Three Mayoral Elections ....................................................................... 173Claudia López


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Presentation

During the last three decades, Latin America has undergone a steady process of return and consolidation of democracy. This process has been characterized, among other aspects, by the standardization of electoral processes as a mechanism to choose national authorities, the recovery and validity of civil and political freedoms, and, in some cases, the fight and efforts to reestablish the respect for human rights.

A cornerstone of this democratic reestablishment and consolidation has been the implementation of political and institutional reform processes aimed at adapting the legal contexts of the countries to the emerging political realities. Therefore, there was an evident need for adjustments to the electoral systems but also to the governmental systems and the different existing institutions and mechanisms whose purpose was to strengthen democratic representation, participation, and governance.

Except for a very few cases, we can assert that almost every country has got involved in this reforming effort. From different perspectives, the countries in the region have gradually and promptly dealt with the issues needed to strengthen their democratic development. More than comprehensive reforms, we have witnessed a trend towards specific reforms, and we have focused on issues that are at the core of the political debate in each country, according to the different political and social situations.

The studies presented herein, specifically the experiences of political reform in Bolivia, Chile, Colombia, Costa Rica, Honduras, Mexico, Panama, and Peru, are just a sample of the different reforming practices in the region in the last few years. These papers were submitted during an international conference on the electoral-political reform in Latin America and Colombia held in Bogotá on June 19-20, 2008, sponsored by the Swedish International Development


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Trends and Perspectives of the Electoral Reform in Latin America

Cooperation Agency. This event, organized by IIHR/CAPEL, under the auspices of the National Civil Registry of Colombia, the National Electoral Council, and the Election Observation Mission (EOM), was aimed at promoting a wide debate about the experiences and lessons learned in the area of Latin American electoral reform. The wide acceptance and participation in this event encouraged us to continue with the debate captured in this publication.

Based on the cases analyzed herein, we can see, specifically, that there are some recurring issues that have been at the core of the reform debate in the last few years, among them, political party financing, implementation of direct democracy mechanisms, inclusion of positive discrimination mechanisms in the gender approach, presidential reelection, and the electoral system. Even though these have not been the issues subject to reform, in general most countries have attempted to make progress in the regulation of these issues.

Another important aspect to point out is that the reform processes in Latin America have been gradual and that each country has progressed at its own pace, with different degrees of regulation and detail, according to its specific needs and historical situation.

In this sense, an important fact is that in matters of reform, there are not ideal recipes or systems; therefore, each country should make progress according to its specific reality and political culture within democratic parameters and within the framework of the Inter-American Democratic Charter.

Finally, it is important to point out the persistence of certain vices that sometimes hinder the success and viability of the reform processes in Latin America. In fact, besides important achievements, there have also been failed attempts at promoting important processes of institutional change because most of the time the interests to keep the status quo are stronger than the drive and need for change and renewal. In this sense, the cases studied illustrate the close relationship between the dynamics and the political interests and their impact on the results of reform.

To sum up, these articles clearly show a wide range of advances and setbacks, limitations, and challenges in the area of political reform


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in Latin America. Aware of its constant evolution and dynamics, we address this topic in such a way that upon reading these cases, you will be encouraged to reflect and give feedback about similar processes in the region.

Roberto Cuéllar M. IIHR Executive Director

José Thompson CAPEL Director


13

Electoral Reform in Latin America: Tendencies and Perspectives

José Thompson*

I. Democracy and its Surroundings: Good and Bad NewsDemocracy in Latin America has been consolidating over the last

decades. Currently, it has the support from most Latin Americans, and in spite of its failures, it is conceived as the best system of government.1

One of the main aspects that have contributed to consolidate this support to democracy, although unique, has been the celebration of free and competitive elections. Certainly, the electoral regimes in the region have been strengthening, modernizing and technifying themselves, which has caused that, nowadays, most of the electoral processes are barely questioned and enjoy the citizenship’s trust.

Nevertheless, all are not good news. The advances in political democratization matters have not been enough. Certainly, with the arrival of democracy, a series of expectations opened up in the population, which mainly refers to the satisfaction of their economic and social needs. There was trust in that political democracy would produce an improvement in the population’s life conditions. When these expectations did not become true, a process, which some have called “democratic disenchantment”, started; therefore, currently the

* Director of the Center for Electoral Advisory and Promotion (CAPEL), specialized program of the Inter-American Institute of Human Rights (IIHR). Paper prepared in October 2008, based on a presentation given in Bogota in June, 2008.

1 According to the Latinobarometro Report 2008, 73% of Latin Americans consider that democracy may have problems, but it is the best system of government. Latinobarometro Corporation, Report 2008. In: www.latinobarometro.org


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satisfaction rates with democracy are lower than the support that it receives.2

Consequently, although democracy is preferred by Latin Americans, the labor of political regimes is questioned, and this results, among other aspects, in a tendency towards low electoral participation, in a persistent loss of legitimacy and a subsequent lack of support towards the political parties and the main representative democracy institutions, starting with the First Branch of the Republic, the legislative apparatus, the national congresses. As corollary to this loss of credibility, there is an open path for leaders with “anti-political” discourses or practices and with rare democratic tendencies to have an easier access to power.

II. The Reasons for an Electoral ReformAlthough the problems of democracy transcend the national level,

it constitutes a fundamental step to advance towards its strengthening. In this sense, the improvement of the electoral systems has become an essential element for the recovery, first, and the consolidation, later, of our democracies, for which the reform is identified as one of the main tools to advance in this direction.

Among the reasons that justify an electoral reform, we may mention the following:

– The insufficiencies and imperfections of the electoral regimes are not tolerable anymore, although their incidence is lower. The appearance of tight results in different recent electoral processes (Costa Rica 2006, Mexico 2006, Venezuela 2007) makes that error margins as the ones that ruled in the past in the Electoral Registry are not admissible anymore, as they may put in question the legitimacy of the process as a whole.3

2 We thus see that the 2008 Latinobarometro measurement registered the numbers of support to democracy in 57%, and 37% of satisfaction, for a difference of 20 points between both variables.

3 In this respect, see CAPEL (2008). “Tight Electoral Results: Experiences and Lessons Learned”. In: CAPEL Notebooks 4. IIHR, San Jose.


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– The standards to evaluate an electoral regime have changed, and other factors come to play which affect the development of the elections, for instance, the regulation of money in politics, more inclusive conditions for participation, both related to the search for greater equity in the elections, which also extends to the topic of mass media and their influence in electoral campaigns.

– There are important pressures for regulation beyond the traditional areas. For example, the relevance and appropriateness of reforming the political party regime and the insistence in launching internal democratization measures on the political groups are highlighted.4

– There are actors with a greater political presence, among them mass media and civil society, whose participation requires to be regulated given their current role in electoral processes.

– Growing use of direct democracy exercises, which reveals non-adaptations of the electoral regime, originally previewed and designed for partisan competitions.

– Modifications in the presidential regime, which generally generate the need of other reforms, mainly in regards to the mandates, either for their extension, or to the possibility of reelection in different conditions than the ones previously previewed.

It is important to highlight that, independently of the reasons that give origin to a reform process, generally its aim is the search for formulas to improve the representation, participation, inclusion and governability. Although these intentions are frequently contradictory (for instance, the search for greater representation results in lower governability and vice versa), each country should advance towards a more effective system, according to its juncture and political culture. With this we mean that there is not a unique recipe for political

4 See, Sánchez, Fernando and Thompson, José (2006). “Fortalecimiento de los partidos políticos en América Latina: institucionalización, democratización y transparencia”. In: Cuadernos de CAPEL 50, IIHR, San Jose.


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reform. What works well in a context may not in the next one, but what should not be done is to stop trying to overcome the system’s imperfections and insufficiencies.

What is clear, though, is the impossibility to fully advance in all the objectives simultaneously by means of the same electoral reform proposal, and therefore, an order of priority and a balance among them is needed, carefully planned since the beginning of the reform process. On the contrary, new “adverse secondary effects” will arise, which at the same time will require new electoral reforms, and thus opening a permanent cycle of erosion in the system.

III. The course of Recent Electoral Reforms in Latin AmericaWe can certainly affirm that in no country in the region has

there been a “political reform” in the strict sense over the recent past. Although there have been consultations in Brazil (1993) and Venezuela (2007) on a structural change proposal in the political system, the option was rejected in both nations. In general, what has happened in many Latin American countries are modifications to the rules of the game (presidential terms, reelection), all of which are reforms to the electoral field.

Next, there is a comparative chart of the predominant topics on the electoral reform projects in selected Latin American countries, in order to determine possible tendencies.

It is worth mentioning that the compared analysis in the table is restricted to the 1998-2008 decade, in order to ensure the validity and relation with current processes (although in cases like Colombia, there have been up to three partial reforms between 1992 and 2008 in presidential regime matters). What matters, above all, is the comparison of topics, advances and obstacles, in order to identify tendencies and divergences and to establish whether there is a “common electoral agenda” in the region.


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Table 1. Electoral Reform Topics. Seven Countries Included

TOPICS COUNTRIES

Civil registry and electoral registry Colombia, Costa Rica, Chile, Honduras, Panama, Peru

Penalties (Electoral penal regime) Colombia, Peru, Panama, Mexico, Honduras, Costa Rica

Money and politics: Financing and supervision

Chile, Colombia, Costa Rica, Honduras, Mexico

Vote abroad Bolivia, Costa Rica, Chile, Honduras, Panama

Gender representation Costa Rica, Peru, Honduras, Panama, Colombia

Political party regime (Democratization, structure)

Peru, Costa Rica, Honduras, Panamá, Colombia

Electoral organization, impugnment regime

Ecuador, Mexico, Peru, Costa Rica

Electoral system in its strictest sense Chile, Mexico, Costa Rica, Colombia

Modifications to the municipal electoral regime

Chile, Costa Rica, Peru, Honduras

Direct democracy mechanisms Honduras, Costa Rica, Panama, Peru

Equal access to mass media spots Mexico, Colombia, Costa Rica

Presidential regime Colombia, Bolivia, Ecuador

Electronic vote Costa Rica, Peru

Source: Prepared by José Thompson.


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As established on the table, there is a coexistence of electoral agenda “classic topics” (electoral registry, electoral system) with the “new electoral agenda” (financing of politics, equal access to mass media) and a quite generalized extension of the reform topics, which are elements that merge to create a sort of common language in electoral reform matters. This factor makes certainly possible productive exchanges, apart from the particularities of each national reality.

As we have just stated, each country progresses in its electoral reform processes according to its needs in determined historical contexts. However, and without judging individuality, there are recurrent topics in many of these reforming processes of the last few years. Among them we may mention:

– The topic of the financing of politics: this area has been an object in almost all the recent electoral reform projects. Few countries have abstained from a reform in this matter, although in different degrees. In brief, there have been multiple attempts and experiences in the region, trial, error and re-planning, but there is a growing number of countries that regulate it (recently, Guatemala, changes in Chile, Mexico). In fact, it is on this matter where we may talk more of a “permanent reform”.

– The presidential regime has brought about plentiful changes in the period analyzed, in aspects such as the presidential term, reelection, ballotage or second electoral round, among others. As an example, we may mention Colombia as the most extreme: from non-immediate reelection to prohibition of reelection, and to immediate reelection in only 15 years.

– Possible conflicts between the objectives of the reform (participation versus governability) explain operative difficulties and new reform proposals. Nevertheless, as mentioned above, it is important to balance the feasibility of achieving different objectives with one same reform, before generating contradictions within the system with only one modification. It happens, however, that in the legislative procedure the congruence of an electoral reform is threatened


19


by the introduction of motions and alterations that will produce distortions in the core of the reform, even before its approval.

– There is also a movement for inclusion which adopts different facets: vote abroad, representation and gender, independent candidatures, representation of indigenous and Afro-descendant populations.

– Greater use of direct democracy and the relevant adjustments in the electoral regime. Although it is positive that there is a “more active” democracy, through consultation to the citizenship on topics of interest, it is clear that the electoral apparatus and regime were conceived, designed and introduced starting from electoral competitions between political parties, in which the logic and the institutions seek to keep a balance of principles among the political groups and not among the Yes and No proposals, as happens in the referendums.

– There is a new agenda of electoral topics that respond to citizenship concerns and international movements: expense control, equality in the elections, relationship with mass media, and democratization of political parties. These concerns foster the raising again of the regimes starting from negative or insufficient experiences of the last years, but, as these are relatively novel electoral areas of attention, the error margin, the effect generated and the possible originally not previewed adverse consequences are not exactly quantifiable in advance and will require adjustments or new complementary reforms. The fact that there is concurrence in the topics between such a significant number of countries opens the space for recent experiences to illustrate and warn other realities that face similar dilemmas.5

5 And the recent experience in Latin America shows that no regime has escaped from exhibiting problems at the time to control politics financing, while in other matters, such as the political party regime, measures to favor the appearance of new groups might generate an unexpected multiplication of lists or micro-parties, as was the case in Colombia, due to the Constitution in 1991, which, with the intention to open the range to political parties overcoming the domination of the two-party system ended up creating the conditions for an unprecedented dispersal of political offers, and making necessary the later reforms that have sought to give back congruence and solidity to the partisan system in that country.


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– There is also a new emergence of “classic topics”: Civil Registry-Electoral Registry, modifications to the electoral system (strict sense). This is explained because the distortions that in the past were accepted as part of the system, today become possible elements of disqualification of electoral processes and may generate uncertainties in regard to the legitimacy of determined elections when other factors add up, such as tight electoral results.

On its side, Table 2 shows in a systematized way the current status of recent electoral reform projects in Latin America. As can be seen, half of the countries in the region are experiencing reform processes that have been recently finalized or are in process, which shows the dynamism in this matter.

Table 2. Reform Processes in Latin America by October 2008. Selected Countries

STATUS OF THE REFORMS

COUNTRIES

Approved

Honduras: (2007)

Mexico (Federal System, 2007, complementary 2008)

Panama (2006, partial) and (2007)

In consideration and legislative procedure

Costa Rica

Colombia (restricted in regard to the original project)

In the framework of a constitutional reform

Bolivia (in process)

Ecuador (approved)

Dismissed PeruChile

Source: Prepared by José Thompson.


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The table shows that there is disparity in the legislative success of the proposals, which is explained by the incidence of political and juncture factors in the countries. However, it is clear that no proposal has ensured a positive future beyond the sound content managed or the relative citizenship support enjoyed. Thus, every reform proposal should have a previous analysis of political feasibility and understand that what is possible is only what is feasible in reality and in a determined context, probably a product of history and the traumatic electoral moments that shaped and defined it.

IV. As ConclusionAn evaluation of the Latin American reforming experience of the

last few years suggests that, in general terms, the reforms given in the region have not had an integral feature. Most of them have been punctual, and their approval has been also partial, even in countries that have approved it as part of a constitutional reform.

Four aspects should be briefly highlighted in regard to these experiences:

1. The moment of the reform is as important as its content, and the when is as relevant as the how much. As we stated before, the context and the juncture as decisive factors in the reforming processes, and they have direct effects on the possibilities of success. Clearly, the Latin American experience has shown that the contradictions between the spirit of reform and the current political-partisan interests are at the base of certain dismissed or cut reforms (Chile with the reconsideration of the binominal system, Colombia in representation matters).

2. There is an important coincidence in the topics dealing with the reform, which makes it possible and opens the way for a wide exchange in the region, in regards to content and form experiences, positive and negative, in the electoral normative life.

3. The reform complexity degrees vary, but they seem to be extending the coverage of the topics under revision. It has been


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demonstrated that the complexity of the reform, as observed in Mexico, is not a synonym of slowness, but of procedures on different instances almost simultaneously.

4. There are new significant attempts to define and increase the attributions of the electoral organizations and their functional autonomy (Latin American model of specialization on the matter), but there is not a clear tendency towards the consolidation of duties under one sole organization, or rather the division between two or more entities in charge of electoral matters. Some of the attributions entrusted to electoral organizations lack of precedents in this part of the world (Mexico in mass media control matters, in order to ensure equal opportunities in the electoral run), and they will pose a huge challenge at the time of defining its implementation.

It is unlikely that the electoral reform, especially if it is partial or situational, may satisfy all the expectations, given the contradictions in their objectives, but there are possibilities of creativity and boldness when the national interests and the public opinion are consolidated in one same direction.

And it is worth remembering that the normative (legal or regulatory) development of an electoral (constitutional or legal) reform is as important as the reform itself for what was originally conceived and designed does not lose sense, impact or congruence at the moment of translating into practical measures. Therefore, the participation of electoral organizations in the process of reform and its normative development is determinant, as they are the ones who technically know the possible difficulties or distortions that the application of measure or new institute may bring about.

Beyond the success or relative failure of the modifications of the electoral regimes, it seems like a fact that we will still witness electoral reform attempts in most part of Latin America, in response to a changing agenda of the strengthening of democracy and the imperfections still dragged and the ones that will appear in the future, some produced by the best intentions.


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Bibliographic ReferencesCAPEL. “Tight Electoral Results, Experiences and Lessons Learned”.

In: CAPEL Notebook 54. IIHR, San Jose, 2008.

Corporación Latinobarómetro. Latinobarómetro Report 2008. In: www.latinobarometro.org

Sánchez, Fernando and Thompson, José. “Fortalecimiento de los partidos políticos en América Latina: institucionalización, democratización y transparencia”. In: Cuadernos de CAPEL 50, IIHR, San Jose, 2006.


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Electoral Reforms in BoliviaJimena Costa Benavides*

IntroductionThe Bolivian democracy has been in place for twenty five years.

From 1982 to 1985, the first transitional government was established two years after holding general elections and at the end of the de facto governments that have completed a period of almost twenty years of military dictatorships. It was recently in 1985 that the first normal elections were held within a democratic regime. Since then, several political and electoral reforms have been implemented, including two constitutional reforms and a Constituent Assembly whose final proposal is still under debate.

I. The Reform ProcessThe first democratic governments undertook the most reforms;

these reforms are the basis of the legal and institutional system in force in Bolivia today.

The reforms started with democracy. As of 1984, the first electoral reforms were undertaken, and in 1994, the constitutional reform that consolidated the representative democracy, encouraged actions such as the organization, control, and transparency of public management and administrative and political decentralization, and improved the operation and coordination among the different levels of the State.

Besides modifying the structure of the State towards decentralization, this reform also reduces the gap between society and the different levels of the State. The acknowledgement of a multi-culturality, the reforms of the Judiciary, the introduction of single-

* Licenciate in Political Science and undergraduate studies from UMSA, specialist in Politics and a Master's in Public Policies and Management from MpD-UCB Harvard Institute for International Development, university professor, researcher, analyst, and political consultant.


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representative elections, the creation of a Constitutional Court, a Judiciary Board, and the Ombudsman are some of the fundamental reforms at this stage.

The first wave of reforms sought to improve the legitimacy and representativeness of elected authorities and promoted criteria such as equity, equality, and inclusion of different sectors. It is the Constitution which, for the first time in republican history, acknowledges the multi-cultural, multi-ethnic, and multi-lingual nature of the Bolivian society. By promoting an acknowledgement of diversity and decentralization, the reforms contributed also to a new administrative order with 314 municipalities that manage public resources, in the face a previous scenario in which only nine capital cities, besides the city of El Alto, got the attention from State and in which any citizen, in spite of his/her regional ethnical origin, can be an elected authority in his/her town.

The second wave of reforms allowed the transformation from a representative to a more participative democracy. This improved the participation mechanisms with the incorporation of the constituent assembly, the referendum, the citizen legislative initiative, and the demonopolization of the political party systems with the approval of the Law on Citizen Groups and Indigenous Peoples, which opens the possibility of competing for representation posts but without a political party affiliation.

As of the incorporation of Citizen Groups and Indigenous Peoples, Bolivians can run as candidates and compete for public posts by meeting a minimum requirement of 2% of the votes in the constituencies where they want to run. While the main purpose was to promote participation, the analysis to determine whether such percentage makes these organizations more representative that the affiliated parties is still pending. Chart 1 shows that at least in 25% of the municipalities in the country, 2% is reduced to a requirement of twenty signatures to obtain the legal capacity, thus contributing to a severe fragmented representation.


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Chart 1. Requirement of 2% of Signatures to Register with the Electoral Court

LOCATION

TOTAL MUNICIPALITIES BY DEPARTMENT

MUNICIPALITIES THAT REQUIRE 20 SIGNATURES OR FEWER TO REGISTER

CHUQUISACA 28 5

LA PAZ 75 17

COCHABAMBA 44 8

ORURO 34 18

POTOSI 38 10

TARIJA 11

SANTA CRUZ 50 6

BENI 19 3

PANDO 15 13

TOTAL MUNICIPALITIES (2004) 314 80

Source: Writer’s estimate based on official data from the CNE.

This laxity in the rule has contributed to an indiscriminate proliferation of competing organizations, but it has not necessarily contributed to an improved representation of elected authorities. The first time that these organizations competed for popular representation was during the Municipal Elections in 2004, and on this occasion 911 Citizen Groups and Indigenous Peoples across the country registered at the National Electoral Court (CNE) with the purpose of participating in the municipal elections. Later, when a decision was made to deny government financing to them, only 380 started to apply for their legal capacity. At the end, only 256 obtained their legal capacity as shown in Chart 2.


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Chart 2. Groups and Indigenous Peoples with a Legal Capacity

DEPARTAMENT CITIZEN GROUPS

INDIGENOUS PEOPLES

TOTAL

Chuquisaca 14 1 15

La Paz 40 16 56

Cochabamba 42 0 42

Oruro 18 5 23

Potosí 24 22 46

Tarija 17 0 17

Santa Cruz 35 3 38

Beni 11 3 14

Pando 5 0 5

Total 206 50 256

Source: Writer’s estimate based on official data from the CNE.

An improved electoral participation of non partisan organizations has not necessarily led to a qualification of representation; instead it has had a negative impact on representatives’ focusing on specific interests. The role of expanding the political parties has not been reproduced, it has instead fragmented the decision making authorities even more. But the introduction of the referendum and the constituent assembly during the last reform has opened the door to a new political scenario.

II. Current Political and Electoral Reform Process In 2006, the second summon of the Constituent Assembly

was approved, and on August 5 it was finally installed but held the first meeting until December 14, 2007. The proposal for a new Constitution by the official party was approved at different stages:


29


a major stage based on an observation mission of procedures at a Military School outside the headquarters of the Assembly –Sucre- and confrontations that resulted in three casualties; specifically in the city of Oruro and with assault groups that prevented the opposition party representatives from entering. The final document should be developed by the Writing and Style Commission and contains just over 30% of the agreed-upon articles during the work sessions of the 21 commissions of the assembly for several months.

The proposed Constitution, with several observations regarding its legality and legitimacy, should be approved through a referendum whose summoning was halted by the CNE after having been approved in a very irregular way with a fence around the Congress building, and congresswomen were beaten by official assault groups and political party leaders and the President of the Houses were locked inside the Vice-President’s office. The process has been postponed and no date has been set to continue with this process.

Chart 3 shows enacted laws related to the constitutional reform process of the Bolivian democratic process.


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31


III. Electoral SystemBolivia has a dual-chamber parliament: the Senate with 27

territorial representatives (three per each of the nine Departments) and the Chamber of Deputies with a total of 130 representatives (70 single-member representatives and 60 multiple-member representatives).

There is a mixed electoral system, and elections are held in different constituencies:

– President and Vice-President in the national constituency based on a majority system.

– Senators in a departmental territorial constituency (two based on a majority and one based on a minority).

– Pluri-member deputies in a departmental constituency through the proportional system.

– Single-member deputies in a territorial constituency, with an absolute majority of votes.

Chart 4 shows the distribution of representatives by population and by Department:

Chart 4. Distribution of Seats by Population and Department

DEPARTAMENT Senators Multi-member

Deputies Single-member

Deputies CHUQUISACA 3 5 6

LA PAZ 3 14 15 COCHABAMBA 3 9 10

ORURO 3 5 5 POTOSI 3 6 8 TARIJA 3 4 5

SANTA CRUZ 3 11 13 BENI 3 4 5

PANDO 3 2 3

TOTAL BOLIVIA: 27 60 70 Source: Writer’s estimate based on the Electoral Code.


32


Regarding the women’s participation share, it is 30% at the Congress level. The Political Party Law stipulates a participation share of 30% for women and the Law on Citizen Groups and Indigenous Peoples stipulates 50%. However, the predominance of a patriarchal political culture makes women to be included in the candidate list as substitutes and never reaches the aforementioned 30%. Furthermore, the incorporation of the Movement Toward Socialism (MAS) as the main political party in Congress has produced a reduction of the presence of women from 24.6% in 2002 to 19% in 2005 –most of them from the opposition party- which shows that a greater presence of indigenous peoples has paradoxically entailed a lower participation of women.

IV. Electoral Reforms and the Electoral BodyThe National Electoral Court and the nine Departmental

Courts have been institutionalized quite recently. At the beginning of the democratic process, they were led by four parties, and as of the “Political Summit” of political party leaders in 1991, they were institutionalized upon appointing “distinctive” independent and impartial members. Since then, it became the most legitimate organization of the State and thanks to its credibility and reliability; the results of the electoral processes have not been questioned for 18 years.

Precisely due to this confidence, during several political crises, a possible and credible way out for citizens has been to change the day of the elections. But this situation has changed. The CNE has had two leaderless situations in the collegiate five-member group since 2003, and as of 2007, its impartiality and independence have been questioned when the presidential delegate appointed by Evo Morales (one of the five members) was appointed as the CNE President, who, on the same day of his appointment, dismissed two directors who had an institutional career of over a decade. Moreover, he has been questioned because when he was a journalist, he proved to be an enemy of the opposition political parties and of the prefects of the Department who were opposing the MAS. From the point of view of


33


the citizens, and due to different public actions by its President, the CNE seems to have lost its independence and is undergoing a severe crisis of confidence.

Regarding the reforms of the electoral system, this has been one of the major issues in the general political reform process and has been frequently modified to improve its performance. Chart 5 shows the aforementioned legislative reforms:


34


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35


V. Current Political Situation of Reforms in BoliviaDefinitely, the most important event of the current reforms is the

Constituent Assembly (CA), which even though it is an inconclusive process and with serious questions about its legality and legitimacy of the decisions made, today it has become the core of the national confrontation and fragmentation.

The CA was one of major commitments by Movement Toward Socialism (MAS) during the electoral campaign in 2005. Since its inauguration on January 22, 2006, Evo Morales proposed to amend the institutionalization so far established to control the lands, territory, and natural resources of the indigenous peoples, particularly in the highlands –aymaras and quechuas– using the existing institutional mechanisms.

Before its establishment, the CA was promoted as a panacea that could solve all the problems, produced inflated expectations for the followers of MAS, and at the same time it was conceived as an instrument of access to power. Nevertheless, once established, with 255 representatives, of which 210 were single members, the CA became an instrument to convey the vision of MAS and its allies and the main democratic instrument to manipulate the institutions. MAS obtained 50.74% of the votes, but the actual factors of power behind MAS were the social movements, the dogmatic leftist groups, neo-indigenous intellectuals, and particularly European-funded NGOs which during a second wave “saved” Bolivian indigenous peoples, supported by the petrodollars from the Boliviarism movement that seeks to establish the XXI Century socialism in Latin America.

In the CA, three agendas overlapped: that of the supporters of the autonomous State with an institutional democratic discourse and that seeks to preserve the existence of the Bolivian State; that of the indigenous and indianist movements that seek for an acknowledgement of differentiated nations and the reinstatement of pre-colonial territories, and the agenda of MAS that seeks for an


36


indefinite immediate reelection with no resignation1 to consolidate its project to conduct a “Democratic Revolution” in Bolivia.

Due to failure to impose decisions through an absolute majority of votes vis a vis the defense of two thirds of the votes to make decisions, the AC wasted almost eight months, and upon the approval of an extension of its term to operate in Congress, MAS ended up breaching the Summons Law, the Internal Regulations, the Extension Law, and prevented the opposition political parties from attending the final sessions.

To sum up, the CA failed to achieve a new social agreement and to write a consensus State Political Constitution (SPC), but it was fundamental as a restraining factor of potential violence on the streets and roads while waiting for the results. When the CA is put to an end, potential violence unleashed everywhere and at any time, thus giving signs of the levels of intolerance of the Bolivian political culture.

Due to the failure to achieve a national consensus at the CA and the intention of MAS of imposing its vision, an accelerated process of de-institutionalization unleashed thus leading to a new and deeper crisis in which there was not a Constitutional Court, the Judiciary was stalled, the Legislative Branch was fenced, the National Electoral Court was at a crisis, the Police was asking society for guarantees to be able to take actions, and the Armed Forces were repelled using spades.

There were more than a hundred lynchings last year, multiple confrontations in different places in the country, the takeover of lands and mines by peasants, and 39 casualties due to political reasons. The government of change, of the absolute majority, and with a strong legitimacy has worn out fast and has promoted and nurtured at least three types of deep gaps in the population:

– Inter-ethnic and racial tensions

– Regional fragmentation

– Rural area-city opposition

1 The State Political Constitution (SPC) currently in force authorizes the reelection after a constitutional period and just once.


37


To sum up, the government of Evo Morales has not solved the political crisis that has been in place since 2000 and quite on the contrary it has worsened it. At the same time, the attempt to impose an indigenist vision in the country has encouraged the strengthening of the autonomy project, which has currently become a restraint on the search for power by MAS and the defender of democratic institutions vis à vis the “socialist revolutionary project.”

VI. MAS Proposes a SPC Under the current circumstances, the country is deeply fragmented

and biased and is undergoing a severe governmental and institutional crisis, and amidst all this, the approval of the Constitution by MAS through a referendum is still pending. Why the fear and almost an absolute rejection of this document?

In fact, beyond the contradiction of the governing party’s constitutional proposal demanding for autonomy in 5 of the 9 departments in Bolivia, the underlying problem is that this constitution questions the republican institutional order, removes the national identity to replace it with a pluri-national vision in which the acknowledged nations have been granted with the right to self-government and self-determination in pre-colonial territories, which have clear boundaries and of course they contradict the existing land distribution as shown by the national government.


38


Figure 1. Map Proposed by the Government

The Constitution proposed by MAS points out the following regarding the rights of the indigenous peoples and peasants –who are not necessarily indigenous such as the case of the cocalero settlers- regarding lands and territory:

“Given the pre-colonial nature of nations and the original peasant indigenous peoples and their ancestral predominance over their territories, their self-determination within a framework of unity of the State is guaranteed, i.e., their right to autonomy, self-government, culture, the acknowledgement of their institutions, and the consolidation of their territorial entities, in accordance with this Constitution and the law” (Article 3, Constitution proposed by MAS).


39


“The indigenous autonomy is the expression of the right to self-government as the exercise of self-determination of the nations and the original indigenous peoples and the peasant communities whose populations share the territory, culture, languages, and legal, political, social, and economic institutions and organization.” (Article 290, Constitution proposed by MAS).

The Constitution currently in force acknowledges the multi-cultural and multi-ethnic nature of the Bolivian society and also acknowledges the rights and duties of all the citizens as equals. The proposed Constitution under debate establishes the differences between indigenous and non indigenous people in every area, thus establishing discrimination criteria at a constitutional level and a complex situation in terms of ethnical groups which are acknowledged as a nation and which are sometimes composed by a few families, as shown by Chart 6 which was developed based on official data from the last National Population and Housing Census published by the Presidential Representation for the Constituent Assembly and Autonomy Referendum (REPAC).


40


Chart 6. Ethnical Groups according to the 2001 National Census

Afrobolivianos 22,000 Machineri 155

Araona 112 Maropa **

Aymara 2,098,317 Moré 101

Ayoreo 1,701 Mosetén 1,601

Baure 976 Movima 10,152

Canichana 420 Moxeño 76,073

Cavineño 1,677 Nahua **

Cayubaba 645 Pacahuara 25

Chacobo 501 Quechua 2,556,277

Chiman 8,528 Sirionó 308

Chiquitano 184,248 Tacana 7,056

Ese Ejja 939 Tapiet 63

Guaraní 133,393 Toromona **

Guarasugwe 31 Uru 2,383

Guarayo 9.863 Weenhayek 2,020

Itonama 2,940 Yaminahua 188

Joaquiniano 3,145 Yuqui 220

Lecos 2,763 Yuracare 2,755

** Undetermined traveling group that has not been contacted.

Source: Writer’s estimated based on REPAC’s official publication.

The possible recognition of a 25-people group as a nation with a right to self-government and self-determination regarding the natural resources in an undetermined territory has of course generated deep concerns among Bolivians.


41


In other areas, the ruling party’s constitutional proposal has expressed other concerns, for instance, the possibility of the Parliament to become a Pluri-National Legislative Assembly with 121 deputies with a territorial-populational basis in single-member constituencies with a relative majority, and 28 Departmental Representatives by a departmental multiple-member constituency with a proportional representation system (Article 147, Constitution proposed by MAS), but it set forth that:

“The law shall determine the special indigenous peasant constituencies for which conditional criteria such as population density, departmental boundaries, or geographic continuity shall not be considered. (Article 149, Constitution proposed by MAS).

Regarding the Constitutional Court, it would become a pluri-national Constitutional Court with Justices elected based on pluri-national criteria, an equal representation between the ordinary system and the indigenous peasant system (Article 198, Constitution proposed by MAS). Furthermore, it states that:

“The candidates from the ordinary system should hold a law degree and should have worked honestly and ethically in court positions, as attorneys, or law professionals for eight years, and should not have been sanctioned with a dismissal by the Disciplinarian Administrative Control of Justice. The candidates from the indigenous peasant system should have acted as an authority under their justice system.” (Article 200, Constitution proposed by MAS).

This last articles means that a peasant authority that fulfills duties such as organization of parties or of the different stages of product crops in a Ayllu or Marcka of a few families would become a Justice of the Constitutional Court if he/she represents his/her community adequately.

The current National Electoral Court has five members, four of which are appointed by two thirds of the votes by the National Congress based on a meritocratic selection, and the fifth one is appointed by the President of the Republic as its representative. The State Political Constitution (SPC) proposed by MAS proposes a pluri-national Electoral Board composed of five members, of which at least two will be representatives of the indigenous peasant nations


42


and peoples, one will be appointed by the President and four of them will be appointed by absolute majority of votes at the Pluri-National Legislative Assembly (Article 206, SPC proposed by MAS). The main observation to this reform is not related to the composition of the Legislative branch but to the election by absolute majority, considering that the political history imposed a two-third mechanism that forces representatives to reach a consensus since they are used to imposition, which delegitimizes the decision for those who are not followers of the ruling party.

One of the issues that causes a lot of susceptibility is related to the absolute amendment of the Constitution, which according to the proposal, it will take place through a plenipotentiary Constituent Assembly activated by popular will and which could only amend the SPC by absolute majority, or by the members of the Pluri-National Legislative Assembly under the same system (Article 411, SPC proposed by MAS). This factor, together with the incorporation of the immediate reelection and without a resignation by the President of the Republic would leave the possibility of a governmental and constitutional control by absolute majority; which in fact would face absolute difficulties given the national political history with a proven need for the establishment of political agreement and consensus.

These and other characteristics of the constitutional proposal have made the ruling party as the only advocate of such a constitution, and the remaining Bolivians prefer the current Constitution but with an amendment that includes the possibility of establishing a departmental autonomous regime with regulatory legislative capacity. So far, the possibility of a social legitimization of this constitution is highly questionable and it is rather amidst a national confrontation.

The de-institutionalization process promoted by the national government, first within the Constituent Assembly, and then evidently attacking and besieging the Constitutional Court and the Judiciary, the manipulation of the National Electoral Court, and the cooptation by the leaders of the National Police and the Armed Forces, made the departmental governments with elected authorities and high popular


43


support to advocate for the autonomy as the defense of the republican institutions and of democracy.

Currently, the political-ideological struggle between the national government and the regions has slowed down the implementation of the aforementioned reforms and the crisis of confidence in elections show a scenario where institutional and peaceful solutions are less and less probable.

VII. ConclusionsThe government of Evo Morales, who took over in January

2006, is implementing two very clear strategies to try to impose a “Democratic Revolution” toward the socialism of the XXI Century or Bolivarism in Bolivia. The first strategy was institutional and with two very clear mechanisms: the Constituent Assembly and nationalization. Since it is impossible to manipulate the institutionalization in the Assembly by absolute majority of votes, with the resistance of two thirds of the votes, the government implemented a strategy to destroy the democratic institutionalization since the second year of the Administration.

As stated by Raúl Prada Alcoreza, a single-member representative of MAS from Constituency 9: “The institutions that the revolution is seeking to destroy cannot be respected;” therefore, the Bolivian process has been seriously biased in the government, which seeks to impose a constitutional proposal, and the rest of the citizens who even though are fully articulated by the heterogeneous and sometimes contradictory regional opposition that wants the continuation of the Bolivian Nation and the Republic which vanished in the text of the constitution, and most of all, seek to keep the democratic political regime.

As a summary, the majority of the population decided in favor of elections and against guns, and the Evo Morales Administration decided to hold elections and then a revolution, which is undermining the support by the population day to day.


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BibliographyAsamblea Constituyente. Propuesta de Nueva Constitución Política

del Estado. Versión Oficial, La Paz, 2007.

Costa, Jimena. “Las Agrupaciones Ciudadanas: ¿Una alternativa a los partidos políticos?” In: Revista Opiniones y Análisis # 71. Fundación Hanns Seidel – FUNDEMOS, La Paz, Bolivia, 2004.

Costa, Jimena. “Partidos y Sistema de Partidos en Bolivia”. In: La Política por Dentro. Cambios y Continuidades en las organizaciones Políticas de los países andinos. Rafael Roncagliolo and Carlos Meléndez (Editores). Ágora Democrática- Idea Internacional, Lima, Peru, 2007.

Fundación Milenio. Informe de Milenio sobre el Acontecer Político. In Bolivia # 8. August 2004 – June 2005, La Paz, Bolivia, 2005.

Official Gazette of Bolivia.

Meléndez, Carlos. Análisis Comparado de las Agrupaciones Políticas de los Países Andinos. En: La Política por Dentro. Cambios y Continuidades en las organizaciones políticas de los países andinos. Rafael Roncagliolo and Carlos Meléndez (Editors). Ágora Democrática- Idea Internacional, Lima, Peru, 2007.

REPAC. Sistematización de Propuestas. Asamblea Constituyente. Resumen. Representación Presidencial para la Asamblea Constituyente y el Referéndum Autonómico. Gobierno Municipal de Sucre, 2006.


45

Present and Future of the Electoral Reform in Chile

Miguel A. López V.Pedro Figueroa R.*

IntroductionSince the return to democracy in 1990, the Chilean elections

have been characterized by their continuity and transparency, and any internal political actor has never disagreed with them. For years, party and academic discussions about the Chilean electoral system were focused on the need for a change of binomial electoral system inherited from authoritarianism. However, the Chilean democratic strengthening process has introduced new challenges in the study on the Chilean electoral regime, such as a change of the voluntary registration and the existing mandatory vote, the government financing of elections and parties, and the possibility of electoral participation for Chileans living abroad, among others. All this entails profound changes in the electoral regime and in the Electoral Service, the electoral body in charge of organizing, supervising, and controlling elections.

This paper will review the effects of the binomial electoral system and give a brief summary of the proposals for change. Then, we will focus on the Chilean electoral regime reform process that has recently started. We will discuss how the electoral financing law promoted by the concertation government and passed after intense negotiations with the opposition parties, even though it regulates the private financing, it does not still ensure a total transparency of the

* Miguel Ángel López Varas, a Ph.D and Master (MA) in Political Science from Essex University, UK. A Professor for Instituto de Asuntos Públicos and Instituto de Estudios Internacionales, Universidad de Chile. Pedro Figueroa R. graduated from the Master’s Program in Political Science at U. de Chile. He studied Philosophy at U. de Valparaíso and Political Science at P.U.C. He is currently a researcher at the Department of Political Science at Instituto de Asuntos Públicos from U. de Chile and a professor at U. Mayor, campus of Temuco.


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system. Other aspects of the modernization of the electoral regime are still under debate; therefore, we will only mention the main issues that are discussed. Among them, we can include the presidential promises of the votes by Chileans living abroad and the proposal recently submitted to the Legislative Branch regarding party financing which has little change to be approved in the near future. We will also mention the positions adopted for the electoral registration reform to incorporate about three million Chileans, mainly young people who have never registered before.

I. The Effects of the Chilean Electoral System In terms of electoral engineering, the binomial system that

governs the election of representatives to both chambers was conceived expressly by the Pinochet Administration. It was intended to have an impact on the new party system that should began after the plebiscite of 1988, and while it is true that the discussion on the electoral system to be established in Chile post plebiscite started a long time before that date, what is true is that it was only “technically refined” once the result of such consultation were known and in which the “No” to the continuity of the Pinochet regime turned out to be the winner. Therefore, through Constitutional Organic Law 18.700 of 1988, the binomial electoral system in force today was established, with constituencies and districts designed in terms of the results of the plebiscite to avoid an overwhelming advantage of the coalition of the center left in future elections (Joignant and Navia, 2003; Cabezas and Navia, 2005). Upon finding out some the consequences sought by the designers of the binomial system and some effects verified by researchers, we can issue an opinion about their effects in the light of the results of five elections held in the last 19 years.

Based on the diagnosis of the causes of the institutional breakdown of 1973, a group of followers of the military regime gathered in the so-called “Ortúzar Commission” in charge of proposing the electoral institutionalism, concluded that one of the main factors that contributed to the political crisis was the existing proportional system right before the coup in 1973, which would be encouraged


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the fragmentation of the party system (Ortúzar Commission, 1981: 257, quoted in Gamboa, 2006). In this sense, one of the effects on the electoral system was precisely to avoid the fragmentation of the party system and the emergence of the internal forces and to give advantages to the right. The new system should then generate a bipolar and centripetal competition that could reduce the effective number of political parties and, according to Siavelis (2004, 2005a, and 2005b), would exclude the left. The latter would be sought based on a diagnosis that would suggest minimizing the left trend of the party system and favor a slow-down and the trend towards a center-position competition (Marín, 1986).

Another effect sought by the binomial system was to produce stable majorities that would give governance to the country and avoid that once democracy is reestablished, major changes to the institutionalism designed during the military regime could be made (Gamboa, 2006). Therefore, efforts should be made to avoid an absolute control of the center-left Concertation that had supported the “No” (Navia, 2004; Siavelis, 2004; Cabezas, and Navia, 2005). In this sense, the electoral engineering used by the military regime technicians was aimed at protecting the second force, that it thought (as it indeed happened) it would be an alliance that gathered the followers of the military regime and the center-right parties, today Alianza por Chile.

At a systemic level and based on a highly institutional approach, a series of effects of the binomial electoral system have been pointed out, some of which seem to be more regulatory than effective. Early in the 90s, Valenzuela and Siavelis (1991) suggested that the binomial system might generate volatility as a consequence of the existing high thresholds by allowing variations in the aggregated results based on small transfers of votes, which had not be observed before. On the other hand, Fuentes (1993) suggested the instability of the system by excluding one of the three traditional forces of the Chilean politics, which has been effectively seen so far. Moreover, Guzmán (1993) warned about the effect of a convergence towards moderate positions, which have been also seen during the 19 of the binomial


48


system upon analyzing the effects and incentives of the negotiation rather than confrontation.

Regarding the effects, such as dispersion, Tagle (1993) pointed out early the fact that elections varied across the country; therefore, the effects of the binomial system would be also widespread. The author pointed out the myth of the overrepresentation for the right as a consequence of the binomial system since the Concertation is also overrepresented, even during the elections analyzed by the author, by a percentage higher than that of the right. Regarding this issue, the evidence of more electoral competitions has led authors to confirm the observations made by Tagle since the two majoritarian coalitions are overrepresented the same (Auth, 2006; Carey, 2006).

One of the major consequences of the binomial system was the centripetal and bipolar effect produced during the electoral competition and at the level of political coalitions. As pointed out by Nohlen (2006), it would be naive not to acknowledge that even though the parties of the coalitions point out the existence of a pluralism subordinated to the program and electoral logistics, which is consistent with the conclusion by Siavelis (2005b) by confirming that the effective number of parties and candidates has maintained certain continuity with regard to the party system in force before the military regime.

Regarding the effects of the binomial system on the political competition, there has been a transfer of the electoral competition towards the lists, which has been considered by some authors (i.e. Huneeus, 2006) as a severe distortion of the electoral competition and of the party system. Regarding the results, one of the most widespread effects is the overrepresentation of the second majority, which should point out that after 19 years and five elections, which not only favored the right, as suggested by some authors (Aninat and Navia, 2005), but, as we have pointed out before, it also favored the Concertation, almost by the same aggregate percentage (Auth, 2006; Carey, 2006). This can be seen in the following chart that shows the levels of overrepresentation of the main blocs.


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Chart 1. Overrepresentation of the Binomial System during the Elections of Deputies

1989-2005

Coalition

Election

year

Alianza Concertation

%

votes

% seats %

seats

% seats

1989 34,2 40,0 51,5 57,5

1993 36,7 41,7 55,4 58,3

1997 36,3 39,2 50,5 57,5

2001 44,3 47,5 47,9 51,7

2005 38,7 45,0 51,8 54,2

Source: Writer’s estimate based on data from the Electoral Service of Chile.

II. Proposals for Change: From Individual Proposals to the Boeninger CommissionAs pointed out before, the current Chilean electoral system has

been subject to criticism since the beginning due to the effects of the overrepresentation and exclusion and due to the authoritarian context in which it was established. The way it was discussed, designed, and implemented challenges its ‘legitimacy of origin,’ thus become one of the most controversial and discussed institutions inherited from the military regime; therefore, it has been subject to reform proposals since its implementation. Nevertheless, we can say that in spite of the criticism, such system has turned out to be practical all these years and has become institutionalized as the competition and representation approach of the Chilean legislative branch, due to a lack of needed legislative quorum of Concertation’s followers to be able to change it or modify it.


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Since the first administration of Concertation, the change of the binomial system has been part of the agenda of political reform; however, the true discussion is about the value granted to the different underlying principles and assumptions. Most authors believe that the effects of the binomial system are negative for democracy, while for others it would be a synonym for stability, moderation, and governance. For instance, authors such as Huneeus (2004) believe that the elimination of the binomial system is a prerequisite to consolidate the democratic system and for Garretón (2006), it would be one of the oldest authoritarian enclaves in Chile. On the other hand, a defense for the binomial system would argue that it produces coalitions that converge in the moderation of its programs (Carey, 2006) and which maintains the stability of the party system thus ensuring governance (Von Baer, 2006). Next, we will review some of the main modifications that have been proposed to change the binomial electoral system during the democratic period, both by the government and individual authors.

The first specific proposal of a Concertation government dates back to 1992, during the administration of former President Aylwin when a proposal was made to increase the number of seats of deputies in the Lower House from 120 to 164 and reduce the number of electoral districts from 60 to 45 with variable magnitudes (between 3 and 5) according to the population. In the case of the Senate, a proposal was made to eliminate the senators designated at that time (and until 2005) by increasing the number of seats from 38 to 54 in 13 non uniform constituencies of variable magnitudes of 3-8. In both cases, the electoral formula would be D´Hondt.

One year later, Fuentes (1993) proposed to change the binomial system for a proportional representation system with a threshold of 5% and an automatic correction system in the light of population changes and which would forbid electoral pacts to avoid the fragmentation of the party system. Under this system, 50% of the 120 seats of the Chamber of Deputies would be allocated to the candidate with the most votes in each of the 60 districts and the rest (60) would be allocated through the national lists by applying the D´Hondt formula to estimate the number of candidates per party who


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would overcome the legal barrier. Later, Nohlen (2001) proposed the introduction in Chile of two reforms to the binomial system: add to the current system a national proportional list and introduce double votes, one for the district list and another for the national list. On the other hand, Arriagada (2005) proposed a modified proportional system, with districts of variable average magnitude (3 to 5), with a threshold of 5% to avoid the proliferation of parties. That same year, Altman (2005) suggested a parallel system of accumulation that combines elected legislators directly in single-member districts (60), and others (60) in a single district with proportional representation without new districts, with the D´Hondt formula and a threshold of 5%, while for the Senate, he also proposed one half of the seats in single-member districts and the other half through a proportional assignment by applying the D´Hondt formula.

Aninat and Navia (2005) proposed a system of 120 districts and 38 single-member senate constituencies, where the territorial units would be designed by an independent body of Congress and the parties. Moreover, Joignant and Díaz (2005) proposed a mixed system in which the number of Deputies would be increased to 150, 2/3 of whom are elected in majoritarian single-member districts and the remaining 1/3 through a parallel system of proportional voting, increasing the number of districts from 60 to 100. On the other hand, Duval (2006) proposes to maintain the current 60 binomial districts by increasing the seats of the Lower House by 20% and reducing the division ratio from 2 to 1.5, in order to improve the competition among the alliances and pacts, while for the remaining 30 seats, he proposes the use of the D´Hondt formula to the votes obtained by each party. The national votes of each party would correspond to the aggregation of all the votes of the candidates proposed by the party. In that same year, Garretón (2006) proposes a proportional representation system and new districts to achieve similar sized districts and constituencies of a magnitude of five and where each party can propose the same number of candidates as the number of seats available in each district.

Finally, one of the broadest initiatives aimed at reforming the electoral system was proposed by Michelle Bachelet at the beginning


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of her Administration. The President gave a lot of importance to the electoral system reform since it was one of the cornerstones of her campaign and it included it, upon being elected, in the package of 36 measures to take during the first 100 days of her government. To fulfill her electoral promise, Bachelet created a special commission in charge of studying the amendments to the binomial electoral system. Some of the members of such commission included people from the different parties of the Concertation (those of Alianza por Chile alienated themselves), academicians and electoral experts led by former Minister and Senator Edgardo Boeninger (thus the name of ‘Boeninger Commission’). The specific results of the work of this commission was a series of recommendations and a proposal to increase the number of seats in the Chamber of Deputies from 120 to 150 and of the Senate from 38 to 50, thus establishing a new electoral map (new districts) and preserving the current formula of lists, pacts, and national sub-pacts. Moreover, it establishes the introduction of open lists to allow voting for candidates from political parties within the pacts or sub-pacts, together with the recommendation of adopting gender quotas to improve the participation of women. Regarding the formula of conversion of votes into seats proposed by D´Hondt and the creation of an autonomous entity in charge of reviewing, every ten years, the composition of the districts of the Chamber in terms of the demographic variations.

Regarding the new districts, there are three proposals: a) District base and a magnitude of two to six seats (it does not divide districts, it keeps/merges some); b) District base and a magnitude of two to eight seats (it does not dive districts, it keeps/merges some), and c) District base and a magnitude of two to eight seats (it does not divide districts, it keeps and merges some). Finally, it proposes an alternative for the Senate: a base of 50 seats and keep the existing 38 and proportionally increasing the remaining 12, according to the population of the constituencies.

The Boeninger Commission in fact made three proposals to the Executive Branch, which selected one of them and submitted to the Senate in June 2006 to be discussed. Given the immediate resistance by the Alliance to the governmental proposal and knowing that


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the motion of the Executive branch would fail, the parties of the Concertation decided not to support the proposal of the Executive branch and proposed more consensus to the opposition. This was approved upon signing an agreement in good faith to support the reform to the binomial system, but it did not succeed; therefore, the electoral system inherited from the dictatorship is still very healthy.

A lack of consensus regarding the reform to the binomial electoral system is present in the resistance by the center-right Alliance, but even though the Concertation has encouraged a change, the elected Congress representatives are not encouraged likewise. From a perspective of the political realism, does it seem logical that a member of parliament who has created an electoral machinery to be reelected decides to change the rules of the rules in favor of a system that introduces uncertainty in his/her election? The truth is that individual incentives for a change of the binomial system for each Member of Parliament in particular are low. Therefore, many proposals include a significant increase in the number of positions to elect, something that does enjoy popularity among the voters.

It is interesting to point out that unlike the binomial electoral system for both houses of Congress, the municipal electoral system is plurinominal for the election of council members and uses the D´Hont formula. This system has indeed suffered some modifications since the municipal elections in 1992, where there was just one selection and indirectly the elected members of council elected the mayor, and now the current system makes two separate choices for council members and mayor.

III. The Modernization of the Electoral RegimeWhile the reform of the electoral system for the elections of

both Houses of Congress has caught almost all the attention of the press and academia during the years of the reestablished democracy, in the last few years, other concerns have emerged regarding the modernization of the Chilean electoral regime. These have been linked to the improvement of the representativeness of the regime and the guarantee of transparency.


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A. Electoral FinancingThe relationship between money and politics has been studied

in advanced democracies in the last half century; however, in Latin America and Chile in particular the regulations for electoral financing are recent. According to Katz (1996: 124) the regulations related to the financing of political campaigns can be divided, in general terms, in two categories: those related to expense limits and those related to contributions and other types of income. In a few words, the author believes that the first category seeks to prevent candidates and parties from “buying” elections, and the second category seeks to prevent those who have resource from “buying” candidates.

The electoral financing regulations in Chile have been controversial and the laws have been under constant debate since 2003. Electoral financing is governed by Organic Law 18.603 on political parties, Law 19.884 on transparency, limit, and control of electoral expenses, and Law 19.885 on the good use of private donations by establishing certain degree of transparency and limits on electoral expenses during the campaigns.

Regarding the use of tax resources for campaigns, the Chilean State finances and reimburses the electoral expenses of candidates and parties. At the beginning of the campaign, each party receives an amount of money equivalent to the number of votes obtained in the last election of the same type times 0.01 of the value of a Unidad de Fomento (UF)1 (Article14). At the end of the elections, the State reimburses the money spent by candidates and parties. In the case of presidential elections, 0.03 UF is reimbursed for each vote obtained by a candidate in the first round and 0.01 in the second round (Article 13.bis). In the case of congressional and municipal elections, the tax administration reimburses the expenses incurred during a campaign for an amount that cannot exceed the three hundredths of UF times the number of votes obtained (Article 15).

1 Unidad de Fomento (UF) is a readjustability measure that is estimated according to the consumer price index of the previous month. Its value at the beginning of October 2008 is about 21.000 pesos (about US $34).


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Regarding private donations, the law stipulates different types of donations according to their source and limits. Therefore, there are anonymous donations that only known by the donor and the recipient of the money, but accounting records of the donation are mandatory. Anonymous donations cannot exceed 20 UF and the addition of all of them cannot account for 20% of the total funds received by the candidate.

The second type of private donation is public donations, which require the identity of the donor and the donee. These donations can be deducted from the income tax and require advertising if they exceed the 600 UF per candidate or three thousand per party, or if they exceed 10% of the maximum campaign expense of the candidate or party.

Finally, we have the reserved donation that operates under a different method because the donor send the donation to the Electoral Service, and this Service registers the identity of the donor, gathers all the weekly contributions, and sends them to the parties or candidates preferred by the donors. This type of donation operates for contributions higher than 20 UF and with different ceilings according to the type of elections and ensures the future Independence of the elected candidate by preventing the donee from finding out about the identity of the donor.

In any event, the law establishes limits on the amount of money a natural or artificial person can donate to political campaigns during a given election.

While the original law meant taking a step toward the establishment of tax subsidies for electoral campaigns, its main weakness was the mechanisms to control expenses and the sanctions for the offenders (Fuentes, 2003). The Electoral Service does not have the physical capacity to conduct an analysis of candidate accounts or oversee law enforcement, and the rush of the Executive Branch to pass the law in 2003 eliminated the sanctions for the failure to comply with the law. The different subsequent amendments to the law and others that are under debate have improved the transparency of electoral financing, but this process is still under way. Among them, we have


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the proposals to improve the capacity and powers of the Electoral Service, establish a supplier registry, forbid artificial persons to make contributions to campaigns, etc. (Chile Transparente, 2008).

This year, the discussions about electoral financing has taken a new direction after the Executive Branch send to the Parliament a bill to amend Law 19.884 which establishes the public financing of political parties outside the electoral period and forbid monetary contributions by companies. Besides this bill, which is under debate in Congress and has aroused some criticism (Valdés, 2008), there were other bills and motions to create a new organic law on political parties, the reestablishment of primary elections to nominate candidates, schooling requirements for candidates, etc.

B. Automatic Registration, Mandatory Vote, and Voluntary Vote

Based on the institutional approach, the relevance of voter registration in the voter roll is worth mentioning as component of the electoral regime. In this sense, the literature about a comparative experience shows the effects that the electoral institutional variable could have on the electoral participation, which includes voter registration (automatic, mandatory, voluntary) (Powell, 1986; Lijphart, 1997; Cox, 1999, Bowler et al., 2001; Louth and Hill, 2005).

In this sense, the system to include citizens in the voter roll so that they can vote becomes important since it is recognized as a determinant of electoral participation ratio. Based on this vision, we recognize that the participation would be affected by institutional factors more strongly than other forms of political participation (Powell, 1986). From this perspective, the type of registration would be part of the institutional mechanisms that limit or restrict the political-electoral participation. Finally, they have an impact on electoral participation in terms of the number of people with a voting age and who indeed cast their vote and in terms of the democratic quality since greater registration difficulties and requirements would generate less representativeness of the system.


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This last aspect is a central concern for the research about this topic, which could be partly solved by reducing the alternative costs and barriers to vote. In that sense, Powell (1986) pointed out that the variable that explains the increase of electoral participation more strongly in the comparative experience is automatic registration. This position is based on evidence gathered from empirical studies that show a greater electoral study in American states where registration requirements are fewer (Wolfinger and Rosenstone, 1980), which is supported by evidence gathered by Powell (1986) that shows that in countries with automatic registration, voters have an average participation level of 14% higher than in countries with voluntary registration. Along the same lines, studies indicate that the Latin American countries that have adopted automatic registration systems have increased the electoral participation by 14% (Fuentes and Villar, 2004), which partly explains the reform initiatives that incorporate this design as a way to increase participation.

Regarding registration methods, basically the electoral design has three methods: mandatory, voluntary, and automatic, which should not be confused with the type of vote which, in nominal terms, shares the first two classifications. In this sense, automatic registration is presented as the method that State, through specialized bodies, periodically includes people legally authorized in the voter roll to vote thus permanently adjusting the relationship between people with voting age (PVA) and the voter roll.

Chile considered the adoption of an automatic registration system without determining the type of associated vote yet, that is, if it is voluntary or mandatory. One of the advantages of this system (in spite of the type of vote) would be an increased participation level thus avoiding or reducing the so-called “hidden abstentionism” (Aleuy, 2007). Nevertheless, the main argument is regulatory in nature because it links participation, legitimacy, and democratic consolidation (Nohlen, 2004) to voter assistance at the polling stations as a key contribution to the legitimacy of the democratic political system (Huneeus, 2004).


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This is very significant because in Chile the percentage of non registered voters has steadily increased as of 1989, when the country reestablishes democracy (Toro, 2007; Ortega, 2003; Navia, 2004) and today it is higher than two million and a half people. Some have explained non registration at least partially in terms of the existence of a bureaucratic registration system (Ortega, 2003). Currently in Chile, the Constitutional Organic Law on the Electoral Registration System and the Electoral System (Law Nº 18.556) controls the registration system by establishing temporary requirements (citizens should registers some months before the election on specific dates and times), and once registered in the voter roll, they are bound to vote under a penalty of a fine. Likewise, people who move should register again, which sometimes does not take place and, according to the Electoral Service, since 1997 between six hundred and seven hundred thousand registered voters did not cast their vote because they were far from their voting location (García, 2007:15). According to Ortega (2003) the lack of an automatic registration system (and mandatory vote) becomes one of the main causes for the high levels of electoral abstentionism in the current Chilean political system and has also caused the aging of the voter roll.

While there is some agreement on the evolution towards automatic voter registration, the discussion becomes more complex when voluntary or mandatory votes are discussed2. The discussion that has divided parliament members and academicians is focused on the nature of the vote in the sense that if it is a duty, it should be mandatory; or if it is a right, it should be voluntary (Sierra, 2007). For some followers of the mandatory vote, it is a civic duty almost comparable to paying taxes; for the followers of the voluntary vote, Chileans cannot be forced to vote because this would affect their freedoms. The discussion is still taking place.

2 In January of this year, the proposal regarding the automatic registration and voluntary vote was passed by the Senate’s Constitution Commission and was approved by the Chamber in March, which coincided with the automatic registration but generated a lot of controversy due to the elimination of the mandatory vote.


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C. Chileans Voting Abroad The current electoral law does not allow Chileans to vote abroad.

According to the last census in 2002, there are about 850.000 Chileans with this situation. Even though he Constitution enshrines such right of citizens without making exceptions as to their domicile, there is still disagreement regarding the debate of the offshore vote (Toro and Walter, 2007). One of the main reasons of this disagreement would be that most Chileans living abroad are people living in exile during the authoritarian regime who at first would be in favor of voting for the Concertation or the off-parliamentary left. This is not at all clear because according to the census just 10% of Chileans living abroad have stated political issues as their main reason of their status. Another topic in the discussion about Chileans voting abroad is the type of elections in which they would be authorized to vote. Besides, the process of incorporating Chileans living abroad in the voter roll, this process faces problems and there is not a consensus regarding the voting method, for instance, voting in the Chilean consulates, mail voting, etc. All this entails modifications to the Electoral System.

Since Chile returned to democracy, there have been different initiatives in Congress aimed at reversing the current situation, mostly sponsored by parliament members from the Concertation and the Executive Branch. The last initiative was undertaken in 2000. In 2006, a bill that had the support from some deputies from Alianza was submitted, however, as of today it is still stuck in the lower House.

D. GenderThe governments of the Concertation have promoted the

incorporation of women through the implementation of actions that had not included quotas for candidates to representative positions. “Based on a formal equality before the law, the policies of the governments of the Concertation have sought equal opportunities. This notion replaces the idea of formal equality and emphasizes equal social and cultural factors of the initial situations, (…) they seek to guarantee the public presence of women by overcoming the


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confinement to reproductive tasks. However, the policies have not considered equal results.” (Valdés and Fernández, 2006:15).

The government of Michelle Bachelet has encouraged the concept of parity, which should be set within the framework of greater equity and a growing incorporation of women in political and social affairs. The parity cabinet has stopped being a gender-equal cabinet with the new appointments, and clearly it has not been able to achieve the goal of incorporating gender equality in the decision making process, even though the progress on this front has been significant.

During the current government, the debate in Chile regarding the implementation of gender quotas has been within the framework of a general debate of the reform of the binomial electoral system with a view to a more democratic and representative system. Some authors have stated that historical injustice worsens the difficulties to improve the situation of women, and the existence of formalities to give equal rights and opportunities to women is not enough. Moreover, discrimination should be fought with positive discrimination actions that even though they do not stop exclusion, they have a corrective nature. The projects of deputies María Antonieta Saa and Fulvio Rossi, confirm that in Chile the selection of candidates is profoundly determined by contact networks and intra-party financing. They have also stated that the party political direction has been traditionally the domain of men and that representativeness, according to other authors, wears out not only in the geographical dimension but also in the gender dimension, and women’s sub-representation is a serious barrier to women imposed by the system.

In general terms, different proposals of gender-related electoral reform have stated that in order to take qualitative leap in the political representation of women, a quota system should be implemented. Nevertheless, the debate in Chile has not been settled yet and nor will it be settled in the near future. It is true is that certain consensus regarding the importance of equity in the access to the decision-making process and management positions has been taking place, and this has been proposed based on the basic guidelines of the first government led by a woman. In Chile there are currently only quotas


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in three political parties that have incorporated them voluntarily and rather in nominal terms, which is not a guarantee of an increase in the representation of women in Parliament, even though it has been increasing (see chart).

Graph 1. Chile: Presence of Women in Parliament, 1951-2008

Presencia femenina en el Parlamento chileno(1951-2008)

0,501,00

1,60

2,60

7,30

5,00

7,50

6,30

7,60

10,10

10,80

12,70

0,68 0,68

2,04

3,40

8,16

6,00

9,33

5,83

7,50

11,67

12,50

15,00

0,00

2,22

0,00 0,00

4,44

2,00 2,00

7,89 7,89

5,26 5,26 5,26

0

2

4

6

8

10

12

14

16

1951-1953

1953-1957

1957-1961

1961-1965

1965-1969

1969-1973

1973- 1990-1993

1994-1997

1998-2002

2002-2005

2006-2010

%

Ambas Cámaras

C. Diputados

Senado

Source: Writer’s estimate based on data from the Electoral Service of Chile.

In spite of the final reform and the quota mechanism to be incorporated, it is true that a comparative analysis confirms that the existence of electoral quotas does not ensure an increased representation of women if it not associated with sanctions for the failure to comply with quotas in parliamentary lists. For example, in Argentina, unlike Brazil, the correct association between quotas and sanctions has contributed to their effectiveness. Likewise, in countries in which the Electoral Quota Law is not accompanied by sanctions, the representation of women is about 15.8% in the

Presence of Women in the Chilean Parliament

(1951-2008)

Both ChambersCh. of DeputiesSenate


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legislative assemblies, that is, almost the same level currently in Chile without the quota law.

Another important element to be considered when making the proposals and which is the result of a look at the comparative analysis is related to the importance of the electoral system at the time of incorporating women in Parliament through the use of quotas since effective systems are those where there is a proportional representation (Ipu, 2007).

On the other hand, from an academic point of view, the studies conducted that relate gender and electoral systems have a different nature. For example, Cabezas and Navia (2005) relate the candidacy of women in electoral competitions to the existence of a low tendency in the effective number of candidates since more women run for office. That is, while more women run for office in a district, the votes are concentrated in fewer candidates. While these authors warned that data are not statistically significant, women might be nominated by their parties in districts where there are strong candidates (incumbent or not); therefore, there are fewer possibilities for women to be elected.

Segovia (2005) wondered if women’s votes in favor of Bachelet was a phenomenon linked to her figure or to a profound change in electoral preferences instead, for instance, gender solidarity. Gender solidarity is a key input for a critical mass in Parliament. Like in the rest of the region, in Chile there is supposedly a differentiated political behavior among men and women, where women are considered “more honest” and “less corruptible” than men (Frenceschet, 2006, p. 16). In this sense, when the levels of confidence in policies and politicians are low, women, as outsiders, can achieve good results.

E. Reform of the Electoral Service All the Latin American countries have specialized electoral

bodies, that is, electoral courts that have been referred to differently (Electoral Court, National Jury of Elections, National Electoral Chamber, Electoral Service, etc.…). These are frequently autonomous


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bodies independent from the Executive and Legislative Branches and the Judiciary and which would have proliferated more strongly based on the democratization in the 80’s (Zovatto and Orozco, 2008). Electoral bodies in the region fulfill administrative and jurisdictional duties related to the resolution of conflicts and complaints filed during the development of the electoral process. However, the recent trend shows that electoral bodies, besides their traditional role of candidate registration, vote scrutiny, and development and update of the voter roll, they supervise campaigns, party registration and financing and internal party procedures for the selection of candidates (Zovatto and Orozco, 2008).

Under this lens, the modernization and reform of the bodies and entities in charge of electoral process regulations and transparency and party financing are fundamental, particularly because the main recent trends related to the regulation and transparency of political activities is aimed at the strengthening of the technical capacity and the powers of such institutionalization. For example, the low level of sanction enforcement in Latin America could be explained by the technical and institutional weakness of some bodies in charge of regulations and controls, or their control by political parties or sectors, thus curbing their Independence and making them ineffective. (Payne, Zovatto et al., 2006).

Currently, an important aspect of the role played by the electoral institutionalization in the comparative experience has to do with party public financing and the supervision of activities and expenses. This role is very important because in spite of the discredit of political parties in the public opinion, political parties are still key actors in the process of adding interests and demands, political recruitment, generation of leaders, and governmental training (Webb, 2005). The strengthening of political parties and their “image” is directly related to the quality of politics and the strengthening of democracy. From this perspective, the capacity, credibility, and duties of the bodies in charge of regulations and transparency are once again fundamental.

Besides democratization and institutionalization, transparency plays a key role to strengthen political parties in the region


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(Thompson and Sánchez, 2006; Freidenberg, 2006; Ferreira, 2006), which according to the previous paragraph are one of the institutions with the lowest levels of approval and confidence among Latin American countries. Therefore, the topic of political party regulation and financing is directly related to the disappointment at and distance of citizens from democracy (Payne, Zovatto et al., 2006).

Currently, Chile is conducting a study to develop a proposal for a reform of the Electoral Service that will allow this body to deal with the challenges posed by the current and roles assigned by the Law and the amendment bills currently under debate and within the framework of institutional modernization and democratic system modernization.

IV. ConclusionsEighteen years after the return of democracy to Chile, the electoral

regime of the country is undergoing an adjustment process for the future. The proposals for change are different, and the reform of the binomial electoral system inherited from Pinochet has had the most proposals for change in the democratic era. However, the reforms of the electoral system have achieved the least consensus across time.

The Chilean democratic strengthening process and governance requirements have increased the concerns for a greater representativeness, legitimacy, and transparency of the Chilean electoral regime. One of these concerns is the electoral campaign financing law that introduced the contribution of tax funds to campaigns as part of a governmental financing process that ensures transparency and is similar to that of advanced democracies. However, this process is under improvement and has faced some controversy.

In the reform process, there are also actions to improve the representativeness, such as the possibility of introducing gender quotas and like in other Latin American countries, the incorporation of voting abroad. Efforts are being made to transform the current system of voluntary registration and mandatory vote into a system


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of automatic registration and in which voluntary registration and mandatory vote are still under discussion.

All these initiatives to improve the Chilean electoral regime lead to an amendment of the Electoral Service. The existence of electoral administration and control bodies is fundamental to the political quality and democratic strengthening. Only an electoral institution with the necessary technical capacity, resources and infrastructure can respond properly to the new challenges of electoral inclusion, the permanent updating of voter registration, a greater regulation and transparency of the electoral process, and the new requirements related to political party financing.

The Chilean Electoral Service has played a worthy role during the post-authoritarian national elections; nevertheless, the proposals for the modernization of the electoral regime entail urgent reforms to continue fulfilling its duties.

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Auth, Pepe. 2005. “De un sistema electoral proporcional excluyente a uno incluyente.” In: Chile 21 reflexiona al Chile del siglo XXI, Tomo II, Santiago, Ediciones Chile 21.

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Katz, Richard. 1996. “Party Organization and Finance”. In: Le Duc, L. Niemi, R. and Norris, P. Comparing Democracies. Elections and Voting in Global Perspective. Sage. London. Pp: 107-133.

Lijphart, Arend. 1997. “Unequal participation; Democracy s Unresolved dilemma”. In: American Political Science Review 91 (1): 1- 14. Dept. of Political Science, UCLA. CA. USA.

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The Political and Electoral Reform in Colombia: A Reform to Recover Politics

Elisabeth Ungar Bleier*

“Legislators will always be reluctant to modify the rules under which they were elected because a change can affect their possibilities of staying in power. There are significant transaction costs related to the change from one system to another, since investments must be made to develop new campaign strategies and a new system creates uncertainty in regards to electoral opportunities” (Velez, Ossa and Montes quoting Sakamoto 1999: 419).

The phrase at the top of this paper reflects the reality of many Latin American countries when their legislators face the dilemma of approving political reforms that in one way or another imply changes in the way to gain access to, exert and remain in power. However, luckily for our democratic regimes, sometimes this reluctance has been transformed and translated into decisions made to introduce changes that lead to the strengthening of democracy. As several studies have pointed out, “When the institutional arrangement stops being fruitful for the parties involved, it is modified” (Vélez, Ossa and Montes 2005: 2).

This can happen, among other reasons, when there are significant changes in the political context or the balance between the Executive and Legislative powers, when the conditions of the partisan competition change or when new political figures appear.

If any or all of these conditions occur, maintaining an arrangement that is no longer functional to ensure the political survival of individuals and institutions can be more difficult than assuming the uncertainty and eventual risks of a reform.

* Major in Political Science from the University of the Andes. Associate professor and researcher of the Political Science Department of the University of the Andes. Director of the Congreso Visible Program. Paper presented at the International Conference on Electoral Reforms in Latin America and Colombia, Bogota, June 19 - 20, 2008.


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The purpose of this paper is to make a brief review of the legal and constitutional reforms that preceded the failed Political Reform of 2008 and, subsequently, analyze if Colombia currently has the conditions for the members of Congress to introduce the changes needed by the country to deepen the process started with the Political Reform of 2003, in order to strengthen the balance system and separation of powers, guarantee that the Congress is the one in charge of studying and approving laws and constitutional reforms, avoid judicial decisions to be submitted to the primary constituent through elections, protect the system from the possibility of modifying the rules to fulfill situational needs and favor current leaders, define the political responsibilities of the political parties and movements if their members are involved in illegal acts and associated to illegal armed groups, and prevent these groups from capturing the State in the future.

I. Context MattersAs stated by political scientist Dieter Nohlen, in order to

determine the reforms needed by a country at a specific time, it is indispensable to perform a historical analysis of the context (Nohlen 2008, foreword). This means understanding that the scopes and limitations of institutional reforms do not depend only on the formal and normative aspects upon which they are formulated, but also on the historical and contextual conditions, all political, social and economic; the political culture, the regulations and values of society and the political intention of the ones involved.

Colombia is no stranger to many of the problems that affect other Latin American countries. Among these, we can mention the significant deficiencies of democracy expressed in worrying levels of inequality, poverty and exclusion; violence, corruption and lack of safety; difficulties for political parties to channel the interests and respond successfully to the demands of various sectors that started to mobilize, organize and demand participation in the past few years; a lack of representation and legitimacy for parties and representation bodies, as well as the erosion of trust and credibility of such, which translates into civic indifference towards politics, politicians and


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political parties; the weakening of institutionalism joined by an excessive personalization of political power; the intrusion of the so-called outsiders in governing circles and the popularization of the “anti-politics” and “anti-party” discourses; the “revolving door syndrome”, where people in charge of management positions in the private sector jump indiscriminately into the public sector and vice versa, making the limits between the public and private blurry or excessively flexible; the weakening of the checks and balances system and ongoing changes to favor the president in office.

However, the violence and continuous presence, penetration and cooptation of armed groups in different public, private, national, regional and local power circles during the past few decades in Colombia, supported by illegal and criminal activities such as drug dealing, have been determinant factors of the political dynamics of the country and many of the differences and particularities in comparison to other Latin American countries. These are exactly the main problems that the leading political reform projects of the past decades have tried to solve.

II. The Constitution of 1991: From Closeness to AtomizationOn July 4 1991, the National Constituent Assembly enacted a

new Constitution to replace the one from 1886. This new Constitution developed the constitutional bases of a Social State of Law, with full recognition of a wide variety of economical, political and social rights. Concerning politics, the main objectives were to establish the conditions for a political openness, as a response to the closeness of the political system caused by the narrow and excluding two-party system of the Frente Nacional; consolidate the checks and balances system in all branches of public power; moralize, modernize and fortify the Congress of the Republic; and expand the scopes of participative democracy as a complement to representative democracy1.

1 For an analysis of the main changes introduced by the Constitution of 1991, see Dugas, John (compiler). La Constitución de 1991: ¿Un pacto político viable? Bogotá, Departamento Ciencia Política, Uniandes, 1993.


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As it usually happens with political reforms, the effects are not always predictable and can often be different from the ones expected. In the specific case of the Constitution of 1991, it is evident that the conditions for the introduction of new political forces were created and this allowed a stronger pluralism. However, and partly as a result of the express constitutional resolution that banned the government from intervening in internal party affairs, this openness was not joined by measures to improve the quality of the politics practiced by the party organizations to make sure they are more democratic. Additionally, there was a rising fragmentation of the parties joined by a deinstitutionalization of the parties system and the personalization of politics.

III. The Political Reform of 2003: From Fragmentation to AggregationDuring the first few years after the enactment of the Constitution

of 1991 there were different failed attempts to reform some issues related to the electoral system and the parties system. Finally, the Legislative Act 01 of 2003, known as the Political Reform2. This helped to clear some myths about the conditions that allow this type of regulations to have a successful legislative process, and can help to understand what happened with the failed reform of 2008.

The first of these myths is that the Congress is unable to reform itself; the second one is that significant reforms must be an initiative of the Executive power; the third one is that if the Executive power opposes these reforms they are not viable; and the fourth one is that the electoral system and parties system have a negative effect on the behavior of the parties at Congress (Vélez, Ossa and Montes, 2005: 3). In the case of the political reform of 2003 none of these assumptions came true. On the contrary, the project was submitted by a group of members of Congress, in this case the Liberal Party, who were not part of the government coalition. Additionally, the proposal did not have the support of the President, since it was considered to have

2 For an analytical recount of the different political reform attempts see Ungar & Cardona, 2006.


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similar articles and affect the referendum he was promoting. Even though it is not possible to confirm if there was a relation between the initiative of the Legislative power and the presidential proposal, the fact is that the first one was approved and the second one failed.

The main objective of the political reform of 2003 was to strengthen, institutionalize and democratize the political parties and parties system, as well as repair some of the problems caused by the proliferation of supporting organizations and their excessive fragmentation and personalization. In order to do this, it was proposed to replace the self-oriented electoral logic for a political parties and systems logic, bringing back their prominence, rewarding aggregation and punishing scattering.

In regards to the reforms of the electoral and parties system, the main changes were the introduction of the unique lists with a maximum number of candidates, the D’Hondt system as a formula to translate votes into seats, the electoral threshold (2% for the Senate and 50% of the quotient for the Chamber of Representatives), the option to submit closed or open lists (preferential vote), the possibility to vote only for the party in open lists and the obligation for parties and political movements to act as a bench in collegiate bodies, which should be later regulated by the Congress through a Bench Law3. There were also modifications to the organization of the parties and financing of electoral campaign, establishing that the inner organization of the parties must be democratic, even though there were no mechanisms introduced to achieve this; double political affiliation was forbidden; the use of the media was regulated; mixed financing was defined for campaigns and the replacement system, and the rights of the opposition were defined.

3 For an analysis of the effects of the political reform of 2003 see Rodríguez Raga, Juan Carlos and Botero, Felipe. “Ordenando el caos. Elecciones legislativas y reforma electoral en Colombia”, Revista de Ciencia Política 26 (1). Santiago, Chile, 2006; Losada, Rodrigo and Castro, Adriana, “Evaluación de la Reforma Política aprobada en 2003”, document prepared for the PNUD-IDEA project, Bogota, August 2007.


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IV. Evaluation of the Reform: Something Good, Something BadAfter five years of being approved, the evaluation of the political

reform of 2003 has mixed results: even if the accomplishments are unquestionable, there are still problems and doubts. In regards to accomplishments, it is evident that the establishment of the threshold and the unique list managed to successfully “organize the ruling chaos” (Rodríguez and Botero, 2006). For example, the number of lists for the Senate went down from 319 in 2002 (out of which only 3 had more than one seat) to 20 in 2006; the number of competing parties decreased (63 to 20), as well as the ones who elected candidates (10 in the Senate, 14 in the Chamber), and the number of effective parties went from 9.0 to 6.9. In other words, the new electoral guidelines favored association.

Association was also promoted a result of the method of proportional representation and the threshold, since the parties with more votes were rewarded with more seats and the number of parties with representatives on the Senate was reduced to a half.

The results of the implementation of the preferential vote are mixed. Giving electors the chance to order the lists democratizes parties by leaving the power to determine candidates and their position on the lists in the hands of the electorate and not the leaders of the party, avoiding what in Colombia is known as the “pen”. Also, allowing the voter to vote only by the party (without selecting a candidate) gives the option to support the party as an expression of the voter’s sense of belonging. Proof of this is that in 2006 one of each four voters for the Senate voted only by a party and not by a candidate (Losada and Castro, 2007).

However, the preferential vote can also favor personalization, both in terms of internal organization and proposals of the parties, especially when these are not disciplined and there are no programmatic agreements between their candidates. This is even more evident when each candidate must find and be responsible for his or her own campaign resources, as it is currently in Colombia. Under these conditions, competition moves to within the parties. Additionally, the


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preferential vote allows candidates with a relatively low number of votes to get a seat, “pulled” by the votes received by one or more candidates from the same party (Losada and Castro: 2006). Finally, it is important to point out that the reform established that parties could choose if they wanted to submit open o closed lists, and could even use both modes in different constituencies. This optional character goes against the universal nature of electoral regulations, makes the process more difficult for voters and could be confusing. It also does not promote discipline for the parties, since the selection of the open or close list mode is made based on contextual interests and not on long term decisions related to the strengthening and consolidation of the groups.

Furthermore, closed lists suggest parties that are more organized and disciplined. However, if this is not complemented with democratic mechanisms for the selection of the candidates it could run the risk of falling into a system with autocratic parties. During the elections of 2006 these lists were not usually the “winning strategy”, which makes it necessary to analyze the reasons that could explain this result.

In general terms, it can be affirmed that even if the legislative elections of 2006 had a process of reconfiguration of political forces, it is unclear whether this was caused by a collective dynamic or as a response to ideological or party affinities. In fact, it can be affirmed that to a large extent this was the result of electoral interest, in many cases individual and immediate. Some of the competing organizations or coalitions were created shortly before the elections as a survival strategy in response to the demands of the reform, and some of these were precisely the most involved with paramilitarism, such as the Colombia Viva, Colombia Democrática and Alas-Equipo Colombia movements. This is of course an unwanted and unexpected effect of the reform of 2003, but it is also proof that these illegal armed groups saw the new regulations as an opportunity to infiltrate and co-opt different State instances through participation in the electoral process.


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V. The Bench Law: A Step towards the Institutionalization of the PartiesOne of the legal developments of the political reform of 2003,

consistent with its objectives, is the Law 974 of 2005 or Bench Law. Two years after being enforced, the results are mixed. On one hand, there has been a process of programmatic and organizational strengthening for the opposing parties and some of the parties from the governmental coalition. Additionally, the exercise of political control by the Legislative power has improved, so it can be said that one of its main functions has been performed in a better way. This allows the prediction of advances in the party institutionalization and democratization process and more efficient relations between the Congress and the Executive power, as well as a higher independence between them. However, there are still some obstacles and problems that keep the Law from reaching the objectives for which it was designed. These are related, among other things, to the differences between the Bench Law and the regulations of the Congress, which were created in 1993 and respond to a system where the main characters of Congress were individuals and not political parties; the lack of mechanisms inside the parties to define their agenda and regulate their benches, as well as not applying the sanctions for those who do not honor the agreements, both by parties and the leaders of Congress; the already mentioned practices to obtain resources that place the responsibility directly on the candidates, creating stronger loyalties between them and their supporters than between them and their groups; and the lack of political will of the ones responsible for enforcing the law. In summary, it can be affirmed that “in order to measure the impact of the new regulations concerning benches, it is necessary to keep in mind that institutional transformations do not generate changes immediately. To be able to establish their true scope, it is necessary to wait for a reasonable period of time, so that the groups affected by the new rules can go through a process of learning and development of new dynamics to transform their acts and power relationships in a significant way. (…) One of the main gaps in the text of the Bench Law is placing the responsibility to define sanctions for the members who do not act in a cohesive way in the party itself.


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The reluctance of groups to confront this issue has been reflected in acceptable levels of discipline in some cases, but really weak levels in others” (Ungar, Cardona, López and Rey: 2008).

VI. Evaluation and PerspectivesNot enough time has passed to be able to evaluate the real impact

of the political reform. Five years with only one legislative and two regional elections are not enough to measure the scope and limitations. However, it is evident that the number of parties was significantly reduced; the proportionality between the number of votes and the seats obtained was improved; and some aspects of the way to conduct politics and the internal dynamics of some parties changes, both in the process of selecting candidates and their legislative behavior and programmatic definition. However, “large is not a synonym of strong”, as expressed by Felipe Botero and Juan Carlos Rodríguez (2007). Fewer parties do not guarantee more cohesion, internal coherence and discipline.

It can be difficult to determine if the political reform of 2003 contributed to strengthen the political parties and system of parties in Colombia. The answer depends on our understanding of the word strengthen: some of the electoral rules and the Bench Law have contributed to make parties assume defined programmatic positions and organize internally. Additionally, they have assumed higher prominence in the political competition, which somehow has weakened personalization. Nonetheless, the road is long and there are many necessary factors for the reform to fully reach its objectives, including a good dose of political will from parties, candidates and of course the members of the Executive power, who must understand that the negotiation processes with the Legislative power must be made between groups and not with their members on a personal level. This will create relationships that are clearer, more effective and more efficient.


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VII. The “Re-Electionist Fever” Reaches ColombiaApparently, Colombia was not going to be left behind what

Daniel Zovatto named as the “Re-Electionist fever of Latin America”, and in 2005 the Congress approved a constitutional reform to allow the immediate reelection of the President of the Republic. The Constitution of 1991 not only banned reelection, but also included a number of rules to guarantee the separation and balance of powers. Unfortunately, the 2005 amendment supported by the large popularity of the President and the success of his “democratic security” policies did not include the necessary measures to prevent abuses of power or imbalances between the branches of the government. Therefore, as well as the risks related to changing the constitutional rules during an ongoing government to benefit the President, the country is condemned to an excessive interference of the President, such as the structuring of the High Courts, the Board of Directors of the Central Bank, the National Commission for Television and the decision-making bodies, by virtue of his authority to create groups of candidates and the majority enjoyed at Congress, where some of these members are elected. These facts can be interpreted as what some experts call a “democratic dictatorship”, and undoubtedly reinforce the self-oriented and messianic tendencies that affect Colombia, as well as other countries of the area.

VIII.The Ghost of ParapoliticsSomething that the political reform was definitely not able to

tackle was the involvement of illegal armed forces in politics, the cooptation of different institutions of the State and their ability to prevent the free exercise of the right to choose and be chosen through intimidation and violence. Paramilitarism must be mentioned particularly, a movement that since 2003 started to develop a political project aimed at penetrating the local, regional and national power structures, and according to different investigations this objective was reached, thanks to the support, by action or omission, of tradicional4

4 For an analysis of the rising and consolidation of the paramilitary phenomenon in Colombia see: Duncan, Gustavo, Los Señores de la Guerra: De Paramilitares,


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political sectors and the use of physical strength and threats against voters, candidates and political leaders.

Up to the first week of May 2008, 63 practicing members of Congress had been formally involved in the parapolitics scandal. Of these, 5% were called to offer a spontaneous declaration, 39% were called to declare in front of the Supreme Court, 8% were under a formal investigation, 40% were waiting for a judicial verdict, 3% accepted the imposed charges and 5% were sentenced (Congreso Visible, 2008).

Additionally, 23% of the parliamentarians elected in 2006, as well as some of their replacements, have been legally accused of establishing alliances with paramilitary groups with electoral intentions or, in the worst of the cases, participating in kidnappings and even massacres.

These facts have of course caused harmful implications for the Colombian democratic system, as well as the levels of legitimacy and trust on the Congress and political parties. This is particularly worrying if we keep in mind that most of the involved parliamentarians are part of the bench that supports the government of President Alvaro Uribe. Therefore, they have voted favorably on the main projects of the legislative agenda submitted by the Executive power, such as the Justice and Peace Law, which regulated the issues related to the demobilization and judicialization of paramilitaries (see note explaining CC sentence) and the immediate reelection of the President.

The seriousness of the issue, its effects on the general governance, credibility and legitimacy of the Congress and particular political parties, as well as the undeniable urgency to reinforce the Colombian political and electoral system to ensure that these situations will not happen again in the future, made members of the government and parties of different political tendencies to think that it was essential

Mafiosos y Autodefensas en Colombia, Bogotá: Planeta, Fundación Seguridad y Democracia, 2006; Gutiérrez, Francisco, ¿Lo que el Viento se Llevó? Los Partidos Políticos y la Democracia en Colombia 1958-2002, Bogotá: Grupo Editorial Norma, 2007.


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for party organizations to assume political responsibilities against these issues and contribute to unravel the bonds between illegal armed groups and the political class.

IX. An Attempt to Reinforce the Political SystemThis is the context and the circumstances that originated the

project for the Legislative Act N°047 of 2007 (Chamber) and N°14 of 2007 (Senate), which “reformed some articles of the Colombian Political Constitution”, discussed in seven of eight regulatory debates on the Congress of the Republic. The objectives of this project were to deepen the strengthening process of the political parties started with the Legislative Act N°01 of 2003 (Political Reform), “(…) in order to face the threat to democracy represented by the strategies of illegal groups destined to infiltrate electoral processes” and improve their function of popular representation.

Concerning political parties and movements, the project included aspects to improve the party discipline, expand and define the concept of double political affiliation and resolutions to regulate intra an inter queries between parties and coalitions. It also established that “the parties and political movements will organize democratically. In order to make decisions or choose candidates, their own or part of an alliance with their parties, they will hold open queries with the electoral register or closed queries with their affiliates”. In regards to legal capacity for parties and political movement, the number fluctuated along the debates between 5% and 2%, and during the final debate it was approved as 3% in 2010 and 5% from 2014 (PNUD – IDEA, 2008).

The subject of party and campaign financing was also debated. While some proposed that this should be exclusively state based, others suggested a mixed base. The expenses for all elections were anticipated, and not only the ones for the presidential elections. Other issues included legal inabilities to be applied, except when a resignation was presented 12 months before, when there is a coincidence of periods to aspire to another position or corporation with


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coincident periods in that position or corporation and mechanisms to fill temporary or absolute vacancies in public corporations5.

Along the debates it was evident that there was a “tension (…) between the convenience of rationalizing the party system and the obligation to protect the rights of minorities” (PNUD-IDEA, 2008: 19). The need to create mechanisms for parties and political movements to assume political responsibilities to face the acts of their members was also an issue. In response to this, “the responsibility of the parties and political movements for the candidates elected to positions and public corporations is promoted to constitutional level, and applicable sanctions are established for political organizations, which include losing the obtained representation and in some cases the legal capacity” (PNUD-IDEA, 2008:8).

Specifically, the project included the following in regards to this issue: “parties, political movements, social organizations and significant citizen groups that endorse elected candidates who are subject to preventive detention (…) for crimes related to the membership, promotion or financing of illegal armed groups or drug dealing activates, will have their right to replace the seat provisionally suspended until the detention measure is revoked. The resignation of a member of Congress or member of a public corporation to his or her seat as a result of an investigation started for the crimes previously described will not exempt the party from the sanction established on this article” (underlining is ours).

Additionally, the project anticipated the mechanisms and causes for losing a seat and the charge of the elected when a member of Congress was sentenced, and established that the seat would be assigned to the corresponding party according to the method of proportional representation. For charges elected by districts, it was defined that the party or movement would not be able to postulate

5 There were other subjects discussed and not approved during the course of the debates. Among them, it is important to mention that gender equity was not included on the managing bodies of parties, lists or candidates of the parties; neither was nominal and public voting in corporations or economical sanctions for parties (return of resources obtained by vote reposition) if one of the candidates elected was sentenced.


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candidates for the following election, or send a list of candidates to designate a replacement. In regards to the votes received by the candidate, these would be excluded from the result obtained by his or her group, and if this resulted in not being able to reach the threshold established for the corporation, losing the legal capacity and assigning the seats to the party or parties according to the method of proportional representation. If the party loses more than 50% of its members on the Senate or Chamber, it would lose its legal capacity and the ability to present candidates for the following election on a department and municipal level. Finally, in regards to the structure of quorum and majorities, the project stated that “the seats lost provisionally or indefinitely will not be taken into account….”

Regarding the preceding, there is a clear intention of the government and a sector of Congress to find mechanisms to impose political responsibility for the parties and political movements linked to illegal armed groups by means of those they elected to represent them. However, with only one debate before being approved, the government retired its support for the project, affirming that if the “empty chair” was approved, in other words, the article that implied leaving a seat temporarily empty from the moment the person implicated was summoned to trial, it would affect their majorities and, therefore, the governance. Despite the surprise caused by the attitude of the government, it was not the first time that they used similar arguments. “On July 19, 2006, when the number of members of Congress involved in the parapolitics scandal was lower than 20, Sabas Pretelt de la Vega, then Minister of the Interior and Justice, stated that: “once elected, all members of Congress have the same respect and appreciation of the Colombian government (…) If anyone has a congress credential, that person deserves respect (…) The support of all members of Congress is welcomed” (El Tiempo, July 9, 2006). And a couple of months later, at the Congress of the Federation of Coffee Producers, President Alvaro Uribe stated: “…while they are in Congress, I have openly asked them to vote for our legislative agenda. (…) I am going to ask all members of Congress that have supported us who are not in jail to vote for the transferences, vote for the capitalization of Ecopetrol, vote for the tributary reform. (…)


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There is no way I will fall for that little trap of me not being able to ask for a vote because it is supposed to be immoral, but allowing the opposition to leave us without approving this legislative agenda, we are fighters my valued coffee producers” (Broadcasting System of the Presidency of the Republic, November 29, 2006)” (Ungar: 2008).

Either way, the entire project sank among harsh criticism towards those who using the most perfect filibuster obstructions contributed to cause that result. This proved that the political will of many of the ones who supported the reform ran out when they felt that it could affect their own interests. In this case, the calculations probably showed that the public cost of not approving the reform was lower than the one that would affect government majorities.

X. What Are the Necessary Reforms?At the beginning of this paper I pointed out that when there are

significant changes in the political context, such as a change in the balance between the executive and legislative powers or a change in the competition between parties caused by the emergence of new forces that compete for political power, “can be more difficult for members of Congress to maintain an arrangement that is no longer functional than to assume the uncertainty and eventual risks of a new agreement”. Nonetheless, the political reform of 2008 proved that it was easier for the members of congress to maintain the constitutional arrangement in force than to approve the changes proposed.

However, this does not imply that it is not possible to move in the planned direction and that the conditions necessary for a reform to be successful will not occur. Therefore, I would like to propose some subjects to discuss what to do in the future6.

First of all, as Daniel Zovatto (Zovatto and Orozco, 2008) would say, it is important to think about new ways to make and understand politics. In other words, rethink politics and the ways to gain, exert and maintain power. To do this, it is necessary to design institutional reforms to increase and improve the governance and deepen democracy, keeping in mind that these reforms and their impact on


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the political system depend not only on the institutional engineering, but also in factors like political culture. This has a significant impact on the performance and effectiveness of institutions and the way in which citizens approach them.

Second, we must not lose track of the interdependence existing between the different components of the political system, in other words, between the government system, party system and electoral system. Therefore, the proposals for structural reforms must have an integral nature. Third, although “is it clear that the institutions and Constitutions are not able to perform miracles (…) it will be hard to have a good government without good government instruments” (Sartori, 1994:8). And having good government instruments means they must be strong, clear, representative and democratic in their conception and practices. Fourth, institutional reforms must help to overcome the social justice deficits (poverty, inequality and lack of equity) and the political institutional deficits expressed in the weakness of the State of Law by means of insufficient accountability, favoritism, corruption, discredit of the political parties and Congress, political deadlocks, confrontation, lack of balance between the branches of the public power and cooptation, to mention a few (Zovatto and Orozco, 2008: 8). Fifth, every reform process must necessarily go through the strengthening and democratization of the political parties and Congress. Representative democracy, which is nothing but a democracy of parties, requires these parties to be democratic. But it also requires the Congress to be the proper stage to study and approve laws that respond to the needs and demands of the population, “promoting the common wellbeing and simultaneously offering feedback about the legitimacy of the system” (Nohlen) on one side, and the exercise of political control on the other. In other words, it is necessary to rescue institutionalism and legitimacy of the Congress and political parties. Sixth, the belief that crisis can be solved with new reforms must be overcome. Even if they can be necessary, they are not enough.

Reflecting on the lessons learned from the political and electoral reforms in Latin America during the past three decades (Zovatto and Orozco, 2008), it can be affirmed that it is fundamental to pay attention


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to the causes that originated them, to go beyond the contextual and have a clear idea of which are the problems that must be solved, which are the desired effects and the possible negative impacts that can be produced, the evaluation of previous reforms, the options available and which ones are the most appropriate. This can’t be done by a single party or government, even if they have a majority in Congress. In order to face the big challenges faced by the Colombian political system, including of course the ones related to the presidential reelection and the cooptation of public power by illegal groups, it is necessary to reach national political agreements and build consensus with different sectors, political and social groups.

BibliographyDugas, John (compiler). La Constitución de 1991: ¿Un pacto político

viable? Bogota, Departamento Ciencia Política, Uniandes, 1993.

Guerra-García, Gustavo and Sample, Kristen. “Visión de Conjunto”. In: La Política y la Pobreza en los Países Andinos, Guerra-García, Gustavo y Sample, Kristen (editors). Ágora Editores. Peru, 2007.

Nohlen, Dieter. “Prólogo a Zovatto Daniel y Orozco Henríquez, J. Jesús (coordinators)”. In: Reforma Política y Electoral en América Latina 1978-2007, Universidad Nacional Autónoma de México, IDEA Internacional, Mexico, 2008.

CongresoVisible Program, Departament of Political Science of the University of the Andes. “Parapolítica ¿qué ha pasado con la representación parlamentaria departamental?” In: Ámbito Jurídico, 2008.

PNUD-IDEA Political Reform Project, Proyecto de Acto Legislativo número 047 de Cámara y 17 de Senado. Exposición de motivos. Propuesta de modificación al articulado aprobado en la primera vuelta. Cuadro comparativo. Work document. Bogota, 2008.


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Rodríguez Raga, Juan Carlos and Botero, Felipe. “Ordenando el caos. Elecciones legislativas y reforma electoral en Colombia”. In: Revista de Ciencia Política 26(1): 138–151. Santiago, Chile, 2006.

Sartori, Giovanni. Ingeniería Constitucional Comparada. FCE, Mexico, 1994.

Ungar, Elisabeth. “El Congreso en la Nueva Realidad ¿Modernización o Retroceso?”. In: Leal, Francisco (compiler). En Busca de la Estabilidad Perdida. Bogota: IEPRI, 1995.

Ungar, Elisabeth and Cardona, Juan Felipe. “El Congreso en la Encrucijada”. In: Leal Francisco (editor). En la Encrucijada. Colombia en el Siglo XXI. Grupo Editorial Norma, Centro de Estudios Socioculturales –CESO- Universidad de los Andes, Bogota, 2006.

Ungar, Elisabeth. Recuperar la política y revalorar lo público. Presented at the forum “Hacia una base programática liberal 2010, por la reconquista del poder”. Bogota, Tequendama Hotel, June 12, 2008 (printing), 2008.

Ungar, Elisabeth. “En la política los argumentos morales también cuentan”. In: El Espectador, April 24, 2008.

Vélez, Cristina; Ossa, Juan Pablo and Montes, Paula. “Y se hizo la reforma….Condiciones que permitieron el trámite exitoso de la reforma política del 2003”. En: Hoskin Gary y García, Miguel (compilers). La reforma Política de 2003. ¿La salvación de los partidos políticos colombianos? Bogota, Universidad de los Andes, CESO, 2006.

Zovatto Daniel and Orozco Henríquez, J. Jesús (coordinators). Reforma Política y Electoral en América Latina 1978-2007, Universidad Nacional Autónoma de México, IDEA Internacional, Mexico, 2008.


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The Winding Road of the Electoral Reform in Costa Rica

Rotsay Rosales Valladares*

IntroductionIn most of the Latin American countries, the political events

which reveal the difficulty of the institutional democratic construction and its legitimate establishment in the social imaginary or in the value, principle and conduct system are evident and significant. (v. g. Corporación Latinobarómetro 2005: 50–51).

The difficulty to connect the democratization processes with the social unrest has decisively affected the creation of political agendas in which the institutional reform initiatives are predominant, and they are aimed at strengthening, broadening and even substantially transforming the spaces and mechanisms of political participation in the Latin American societies.

As part of this regional and global dynamic (cf. Zovatto 2008), in Costa Rica we can see weaknesses in and questionings to the rules of the democratic game that were considered effective of functional for several decades.

Since the civil war of 1948, Costa Ricans have reproduced a series of values and attitudes aimed at strengthening principles and features characteristic of the western contemporary societies. This process of consolidation of a political democratic culture was translated– even though not always in synchrony or simultaneousness – into an institutional and legal development that tended towards protecting the representative democratic procedures and organic conducts of

* Professor of the School of Political Science and of the Central American MA in Political Science, researcher of the Latin American Social Sciences Institute (FLACSO), Costa Rican headquarters, e-mail: [email protected]


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the main sectors of the civil society, in a framework of respect and protection of the republican forms of interest articulation. Some authors, such as Guillermo O´Donnell, emphasize this fact describing the country as the “oldest polyarchy in Latin America” (O´Donnell 2002: 314).

In the decade of 1990, signs of civic discomfort start to appear -more and more often- about the traditional ways and the contents in the decision making process in the country. This discomfort, which several authors have described as “disenchantment” or “disappointment” of the people with politics becomes evident in social demonstrations that were uncommon in the previous decades.

In the electoral and party environment, we can highlight four interconnected events that represent a sort of questioning of the legitimacy of the traditional political practice, or at least, the expression of demands to revise the rules of the representative democratic game in Costa Rica: a) Abstentionism exceeded 30% of the electorate in the national elections of 1998, 2002 and 2006 (a tendency that is contrary to the historical 17-19% of the previous 30 years); b) the execution of a second ballot for the first time in Costa Rica in the national elections of 2002; c) the erosion and the change of party loyalties, which is also evident in the electoral change (Sanchez 2007) and impacts d) the change or reconfiguration of the system of political parties (process 1998 – 2006).

Diverse studies agree on the fact that at the beginning of the XXI century there are a series of challenges considered fundamental for the improvement of the democracy in Costa Rica (Rovira Mas –comp–.- 2001. UNDP / FLACSO 2005 and 2006).

It is in this general political context that the contemporary dynamics of electoral reform in this country is circumscribed. This article is intended to briefly comment on the main aspects contained in the legislative file Number 14,268, which proposes an integral reform of the current Electoral Law (“Electoral Code”). Moreover, it presents some of the political elements that have an impact on the fact that, so far, after eight years of debate and for three constitutional terms in office, the reform has not been passed.


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I. General Characteristics of the Legislation and the “Electoral System”1

The legal framework that governs the electoral processes in Costa Rica is established in the Political Constitution2 and in the Electoral Code3. The Municipal Code4 refers to the election of the authorities for the local governments.

The registration of voters is automatic, since all voters are automatically included in the voters’ registry when they become of legal age. The constitution establishes that voting is obligatory in a direct and secret form for all the citizens registered with the Civil Registry, institution that is managed by the Supreme Court of Elections (TSE). This obligation is mainly moral, since there are no existing material sanctions or other type of express punishments for the people who do not exercise the right to vote.

The political /administrative division consists of seven departments or provinces: San José, Alajuela, Cartago, Heredia, Guanacaste, Puntarenas and Limón. The smallest units are the districts, which currently add up to 463. The local governments are called municipalities. In all, there are 81 counties and eight district municipal councils. The election of mayors, municipal trustees and members of the district municipal councils is held in the month of December following the date on which the rest of the popular election positions are elected. The presidential elections are held simultaneously with the election for legislators and for municipal council members.

1 In a restricted sense, the “electoral system” is understood as the rules and models established to turn votes into popular election seats or positions. In the broad sense, it also implies aspects of the sociopolitical environment or context, the set of institutional relations involved in the electoral process and the roles of the electoral bodies, among others. In this article, the notions of “regime” and “electoral rights” are included to refer to the “electoral law” (Nohlen, Zovatto, Orozco and Thompson –comp–. 2007: 27) or the group of legal provisions that regulates the electoral and party activities on this country.

2 Published on 7 November, 1949.

3 Law Num. 1536, published on 14 January, 1953.

4 Law Num. 7794 from 30 April,1998.


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In the election for President and Vice President, the system of qualified majority and reduced threshold is used. In order to win the first round, the candidate must obtain at least 40% of the valid votes. If none of the candidates obtains the minimum, a second round, or “ballotage” is held on the first Sunday of April after the first round. The blank and null votes are not counted as valid votes and they are not assigned to any of the candidates. The presidential term lasts four years, without the possibility of a consecutive re-election.

The Parliament or Legislative Assembly –as it is called– is a unicameral structure of 57 legislators. The election system for the representatives of the Legislative Branch is a variant of the proportional system. The formula for the distribution of seats is by simple quota, 50% as sub-quota and largest remainder method. For the election of legislators –and municipal representatives–only the parties that obtain at least sub-quota have the right to the distribution of seats. Each province forms a circumscription that has been assigned a certain number of seats according to its population. Each citizen can only cast one vote in closed and blocked lists. The same for the President of the Republic, the term in office is four years, but it is allowed for legislators to be reelected as long as it is not in consecutive or immediate terms.

At all the levels (presidential, legislative and municipal), citizens can aspire to popular election positions through political parties registered with the Supreme Court of Elections (TSE). This means that independent candidacies through other options, such as electoral civic committees or popular subscriptions are not allowed.

II. The Electoral Reformism in Costa Rica as a Dependent Variable and the Recent Role of the Supreme Court of Elections (TSE) As it happens with a majority of the objects of study in Political

Science, the understanding of the processes of electoral reform requires a multivariable analysis. Moreover, these processes could


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be recognized as an independent variable that affects and impacts other ones.

In this analysis, we consider that the recent process of proposal and discussion of electoral reforms in Costa Rica is the product of, mainly, power games among party actors and, therefore, it is affected by the dynamics of the political party system5. Moreover, the Supreme Court of Elections of Costa Rica is the other institutional protagonist in this process.

In the last years, studies have been published in the country about the Supreme Court of Elections (v. g. Muñoz 2005; State of the Nation Project 2005 and 2006). These studies stress the change that this institution has undergone to consolidate its role as the institution of constitutional jurisdiction in electoral matters. The Supreme Court of Elections is considered to have determinately or categorically influenced diverse spheres of the electoral processes, such as the organization and internal party processes, through the issuing of a series of resolutions and criteria which, as a means of jurisprudence, are constituted as another source of laws that the political parties would have to adopt and exercise in their rules and practices6. Moreover, it is considered that this more active incidence by the Supreme Court of Elections is the product of the resolutions of the Constitutional Chamber of the Supreme Court.

The IV Chamber (as the Constitutional Court is known in Costa Rica), “reminds” the Supreme Court of Elections to fulfill a more leading role in supervising the organizational process and the internal functioning of the political parties, to exercise a greater control of the public and private financing, as well as to protect the respect of the participation quotas for women in the lists of candidates for

5 We suggest reading one of the most relevant and profuse studies about the relationship between the political parties and the Costa Rican electoral regime, written by the politologist Gerardo Hernandez Naranjo (2007). This doctoral thesis is cited in the bibliography and offers diverse elements of judgment that are shared and expressed in this article.

6 For further details about the legal regulation of the political parties in Costa Rica, see Hernandez Valle in Zovatto (2006) and chapter IV of the doctoral thesis “Institucionalización, democratización y transparencia internas de los partidos políticos políticos en Costa Rica” (Rosales 2008).


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legislators. Also, the Supreme Court of Elections put into practice the procedure called “electoral amparo remedy”, which is a more effective instrument to resolve matters related to electoral constitutional rights inside the political parties.

This renewed, vigorous and growing prominence and initiative of the Supreme Court of Elections during the decade of 1990 has the presentation of the project of integral reform of the Costa Rican Electoral Code as one of its peaks. This project, formulated with the collaboration of the Center for Electoral Consultancy and Promotion of the Inter-American Institute of Human Rights (CAPEL / IIHR) is based on a timely interpretation by the TSE of some of the processes and tendencies described in the introduction of this article, which required a revision or adaptation of the rules of the democratic game – representative of those realities of the contemporary political context.

III. Is it Easier to Start by Changing the Political Constitution? Significant Electoral Reforms in the Last Ten Years The proposal of an integral reform of the Electoral Code is not an

isolated event. It is an initiative that is part of a decade –at least– of promotion of legal and institutional reforms to the electoral regime.

Besides the active role of the Supreme Court of Elections through jurisprudence, the legal reformism of the 1990s advanced through two other winding roads: the approval of partial reforms to the Code, and the most important, through the modifications to the Political Constitution7, which is not a minor fact if we take into account that this last procedure supposes legislative processes and complex political agreements.

During this period we can highlight three main temporal landmarks or turning points:

7 The Municipal Code, passed in 1998, also meant the partial modification of the Electoral Code in the articles referred to the new figures and denominations (Mayors, corresponding to the constitutional article169l), function, requirements and responsibilities of the local government authorities.


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In the interval of 1996-1998, partial modifications to the Political Constitution, and consequently, to the Electoral Code8 are passed. These are focused on four main areas: regulatory provisions about financing, regulation of electoral propaganda, general provisions about the internal organization of political parties and the sanction regime.

It is important to mention that the modifications on the matter of financing are, actually, an adaptation of the law to the constitutional reform of article 96 of the Political Constitution, made in the previous years.

The reform to article 98 of the Political Constitution also belongs to that period. This reform works as a general framework to strengthen, as a growing tendency, the inclusion of democratic principles in the internal structure and functioning of the political parties. In an explicit way, it is indicated that these organisms of representation must express the political pluralism and be fundamental instruments for the political participation. It is considered, basically, that this constitutional modification consolidates a greater impact of the TSE on internal processes of election of party authorities and in the selection of opposed candidates for popular election positions.

In the year 2001, new regulations regarding the State contribution to the campaigns were approved and the attributions of the Supreme Court of Elections on this matter were broadened.

A year later, the legal electoral reformism is energized again from the Constitution, since two important figures or procedures that aim at broadening the political participation in the representative regime

8 The jurist Hugo Alfonso Muñoz states in his study: “…The constitutional reforms of 1997 are aimed at modifying the political parties, projecting the electronic vote, the democratic participation, pluralist and with no gender distinctions. The legislative reforms develop, though still insufficiently, those constitutional amendments… A quick overview of the Electoral Code allows us to see that it has been the source of reform processes. In fact, out of 196 articles, the Code has undergone 103 reforms. 64% of the Code has been reformed. In a similar sense, most of those reforms were made in 1996, and this coincides with the Constitutional reforms, which took place in that year in first legislature, and the year later in second legislature, as the Political Constitution establishes for the constitutional amendment process -Art. 195- (Muñoz 2005: 21).


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are introduced: the popular initiative in the creation of the law, and the approval and derogation referendums. These last reforms were not developed through specific laws until year 2006.

Notice that the most significant electoral reforms in the last ten or twelve years9 were promoted by constitutional reforms. With these, the attributions of the TSE10 are strengthened and characterized by two main thematic orientations: financing of the electoral/party activity and the internal democratization of the political parties (Sobrado 2007. Rosales 2008).

IV. The New Millennium Proposal to Integrally Reform the Electoral CodeAs it has been mentioned since the introduction, the relative

revitalization of the judicial electoral reformism during the last ten years corresponds with the process of reconfiguration of the Costa Rican party system. But, even though we established a dependence relationship of the reforms with the inter-party dynamics, we notice that this hypothesis cannot be interpreted as a mechanical or simple coincidence, but as a dialectics that conditions, mainly, the central matters or subjects to be discussed and reformed, as well as the direction and the rhythm of the change processes and the institutional reproduction (Hernandez Naranjo 2008).

The predominance of a two-party context since the beginning of the decade of 1980 was reflected in a certain conservativism to change the rules of the electoral game. Simplifying the power logic,

9 We must also mention the adaptation of the Electoral Code in 1994 and the diverse pronouncements of the TSE up to the date to execute the Law for the Promotion of Social Equality for Women, passed in 1990, specifically about the 40%-quota of inclusion of women in the internal structure of the political parties and in the ballots presented for the popular elections positions.

10 Definitively, this group of reforms “broadened” the competence of the TSE, but there are no agreements abut the interpretation of its effects to “strengthen” the political parties. For example, members of the party leadership consider that there is a sort of excessive interference of the electoral body in the life and internal organization of those institutions, which in turn, violates the principle of “self-regulation” (cf. Rosales 2008).


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the main Costa Rican political parties probably thought –even if it is not explicitly mentioned– that they should not modify a general framework that, because of the electoral results obtained, was favorable to them.

With the erosion process of the electoral participation and party loyalties, with the growing demands of a greater inclusion, pluralism and transparency in the political activity, and with a greater prominence of new parties in the system, favorable conditions were generated for a deep electoral reform to be positioned as a relevant issue of the national political agenda11.

These changes converged in a greater proactivity of the Supreme Court of Elections, and it was then that the TSE, sent at the beginning of 2001, an initiative of an integral reform to the Legislative Assembly, which in reality was a proposal for a new Electoral Code.

From the explanation of reasons presented as the introduction for this project, we can stress, as the general objectives of its proponents “…the establishment of an electoral code, concordant with the legal system that regulates the mater… This code will be construed and integrated in strict accordance with the democratic values and with the principles of respect for the popular will, the equal opportunities to elect and be elected, the neutrality of the government bodies, the autonomy of the electoral function and the conservation of the electoral act.”

Evidently, the Supreme Court of Elections took advantage of this initiative to introduce the legal reforms that adapted to its new functions. It contains a chapter that describes the internal structure of the Court. The Electoral Registry is created at the legal level and other electoral bodies are established: the Civil Registry, the electoral boards, and the National Body of Delegates. From the series of articles we can conclude that the Project aims at strengthening the guiding role of the TSE in the direction of the electoral processes.

11 In 1960 the TSE sent the Legislative Assembly a proposal to integrally reform the Electoral Code, but it was “filed” (dismissed) in 1968.


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The project contains numerous provisions and regulations in its 214 articles12. The following are considered the most positive13:

_ The introduction of general principles of the compared electoral law, such as the neutrality of the electoral bodies and the unity of the electoral act.

_ The equitable or joint participation by gender (50% men and 50% women) applicable to the party structure as well as to the popular election ballots.

_ The express inclusion of the rights and duties of the members of the political parties.

_ The establishment with legal rank of new permanent bodies inside the political parties, such as the internal audit, ethics, discipline and elections tribunals, and a joint instance for conflict resolution.

_ General principles and institutes that guide the electoral justice are expressly established, for example, the annulment of party agreements, challenge of constitution acts and registration of political parties, the electoral appeal, the electoral “amparo” remedy, and the denouncement of bias and political belligerence by certain public officials who are expressly disqualified.

As it has been mentioned, some of the provisions had been systematized through criteria and resolutions of the TSE, but with the proposal, they were legally established, which offers more judicial security and can contribute to favor the socio-political legitimacy of the electoral acts and processes.

12 According to the substitutive text of 20 July 2006 with approved motion to August 2008.

13 Some of the considerations contained in the conference presented by the legislator Maureen Ballestero (2008), president of the Commission for the Electoral Reforms of the Legislative Assembly, were taken into account.


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Other two relevant topics were introduced with this initiative14. The possibility for Costa Rican citizens living abroad to cast their votes in the diplomatic representations in the country (abroad vote) was established, which is a transcendental political issue, not because of the amount of Costa Rican people living abroad, but because of the small differences that have taken place in the very tight results of the last general elections. Moreover, the creation of the Institute for the Training and Study of Democracy (IFED) was established as the institution ascribed to the Supreme Court of Elections for the promotion of political participation in general, and the promotion of civic and democratic values for the citizens in particular.

V. Good Intentions Abandoned Along the WayThe proposal, originally introduced in 2001, contained diverse

aspects that, in the course of the political party deliberation in the legislative body, were dismissed in the special commissions assigned to their study and ruling.

Besides the intention of strengthening or improving the political parties as institutions with higher degrees of institutionalization, several articles of the original text expressed the implicit need of improving aspects such as democracy and transparency – rendering of internal accounts in those entities–, but the advances in those two dimensions have been few. Also, initiatives to improve the representative regime with more inclusion, pluralism and promotion of the citizen participation have been abandoned along the way.

The establishment of the preferential vote, which opened the possibility for the voter to choose among the list provided by the parties up to two candidates for legislator, alderman, and district councilors they preferred, was discarded. The political parties have preferred to maintain the current system of closed and blocked lists.

14 The original bill of 2001 was passed by the commission in April 2005. However, the legislative plenary session sent it to a special commission for them to issue “a new ruling” in May, 2006.


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Diverse exercises of scenario simulation have shown that, in Costa Rica, the sub-quota criterion represents an element in the electoral formula that favors the bigger parties and affects a better representativeness in the distribution of seats. However, the elimination of the sub-quota was also discarded.

Lastly, the so-called “political representation monopoly” was maintained in the hands of the parties. The possibility for other groups of society (i.e. civic committees, independent candidacies) to present ballots at the local and municipal levels did not have enough support.

VI. The Sensitive Issue of FinancingThe sensitive issue of public and private financing is perhaps the

most polemic topic, and the one considered by diverse analysts and politicians to have represented the greatest obstacle for file 14,268 not to be a passed law after eight years of discussion.

The political parties in Costa Rica live a year of relative economic comfort during the election period, and three years of financial anguish and debts due to a system that does not efficiently consider the permanent financing for fundamental activities, such as the ordinary organization and functioning of the structures, training and creation of new political parties.

The Political Constitution currently establishes that the state contribution to the parties (“political debt”) is of 0.19% of the GDP of the year before last to the elections. The recently founded parties consider, in general, that this amount is too high and propose reducing it to a half. Moreover, the parties consider that the procedure for the settlement of the political debt is complicated, untimely, and therefore, ineffective. Together with the previous facts, in recent electoral campaigns, irregularities about the private financing have been exposed, which deepens the perception that the State should not finance an activity that goes through serious problems of legitimacy. The reflection about how much democracy costs, at least at the electoral level, is put aside due to the immediate electoral calculations of the


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parties that are present in the Legislative Assembly and under the accusation of guilt, a priori, of the published opinions in the media.

In this general context, the reform project that is currently under discussion proposed some positive measures, for example: it clarifies that justifiable expenses are considered within the state contribution; the political parties have to present two budgets (campaign and ordinary); there is a proposition to change the partial settlement process of the expenses covered by the state contribution to a sole settlement; the prohibition of contributions to foreign physical and legal entities is maintained and it is expanded to national entities; the existence of a sole bank account as a financial management requisite is added and the TSE is empowered to order audits for the political parties.

The financing continues to be a big pending and polemic issue. Many people consider that it can also be an excuse that prevents the current situation from being altered and the new Electoral Code from being approved.

VII. Conclusion In the Costa Rican Legislative Assembly there is a sort of

generalized proverb: “if you want something to be unviable, propose an integral reform”. This quasi- sentence casts a shadow of pessimism over the future of the electoral reform in Costa Rica.

The closeness of the national elections in February 2010 is another factor to take into account, since it affects the strategic “calculations” of the political parties, especially if we consider that, for the reforms to be applicable to those elections, they have to be approved before June 2009. Perhaps it is more likely that a new Electoral Code is passed in the months following the 2010 election or in the first year of the new constitutional term in office.

The reconfiguration of the system of political parties does not only increase the number of involved actors in the discussion about the electoral reforms, but it also increases the number of initiatives and positions about it. This also makes the reaching of agreements more complex, even if they are considered more legitimate. Moreover,


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we must take into account that not all the political parties have the same resources to be able to make the processing of their demands inside the political system viable and effective, and there are fewer guarantees that those interests are correspondent with the citizen demands of more inclusion, pluralism and transparency.

A revitalized prominence of the Supreme Court of Elections in the presentation of initiatives and in the creation of jurisprudence, especially the changes in the system of political parties and the more heterogeneous or plural formation in the Legislative Assembly, have certainly dynamized the electoral reformism. However, the short term final approval of an integral electoral reform in Costa Rica is not promising.

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Luco 130 – Santiago, Chile. Electronic version: http://www.latinobarometro.org

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Hernández Valle, Rubén. “Regulación jurídica de los partidos políticos en Costa Rica”. In: Daniel Zovatto (coordinator). Regulación jurídica de los partidos políticos en América Latina. Institute of Legal Research –National Autonomous University of Mexico and IDEA International, Mexico, 2006. Pages 367 – 411.

Muñoz Q., Hugo Alfonso. El Tribunal Supremo de Elecciones en Costa Rica. Final report presented for the eleventh “State of the Nation in Sustainable Human Development Report”, San Jose, 2005.

Nohlen, Dieter; Zovatto, Daniel; Orozco, Jesús and Thompson, José (compilers). Tratado de derecho electoral comparado de América Latina. Second Edition. IIHR, University of Heidelberg,


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IDEA International, Federal Electoral Tribunal, Federal Electoral Institute, Fondo de Cultura Económica, Mexico, 2007.

O’Donnell, Guillermo. “Ilusiones sobre la consolidación” In: Nueva Sociedad 180-181, Jul-Aug / Sep-Oct 2002. Electronic version: www.nuevasoc.org.ve.

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--------------------------------- / ------------------------------------. La democracia del nuevo milenio. Transformaciones políticas e institucionales en Costa Rica contemporánea: UNDP / FLACSO. San Jose, April 2006.

State of the Nation in Sustainable Human Development Project. State of the Nation in Sustainable Human Development Report.Eleventh Report. State of the Nation Project, San José, 2005.

------------------------------------------. Human Development Report.Eleventh Report. Twelfh Report. State of the Nation Project, San Jose, 2006.

Rosales Valladares, Rotsay. La institucionalización, democratización y transparencia internas de los partidos políticos en Costa Rica. Thesis presented at the Latin American Social Sciences Institute (FLACSO) complying with the requirements to obtain the PhD in Social Sciences. FLACSO, San José, 2008.

Rovira Mas, Jorge (compiler). La Democracia de Costa Rica ante el Siglo XXI. Publishing house of the University of Costa Rica / IIS – UCR/ FES, San Jose, 2001.

Sánchez C., Fernando F. Partidos políticos, elecciones y lealtades partidarias en Costa Rica: erosión y cambio. Publishing house of the Universidad de Salamanca, Salamanca, 2007.

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Conferences

Maureen Ballestero, President of the Legislative Commission for Electoral Reforms: “Estado Actual del Proyecto de Ley Código Electoral”. Conference held on 7 May, 2008 at the Electoral Reforms Forum. San Jose: Supreme Court Of Elections (TSE) of Costa Rica. Presentation in “PowerPoint” digital format.

Daniel Zovatto, Regional Manager for Latin America, IDEA International: “La reforma político-electoral en América Latina 1978-2007: evolución, situación actual, tendencias y efectos”. Conference held on 6 May, 2008 at the opening of the Electoral Reforms Forum. San José: Supreme Court Of Elections (TSE) of Costa Rica.


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Current Situation of the Political Reforms in Honduras

Ernesto Paz Aguilar*

IntroductionThe objective of this article is to inform on the current situation

of the electoral political reforms in Honduras. The recent evolution of the electoral-political reforms in Honduras has as starting point with Hurricane Mitch, which lashed Central America almost ten years ago, by the end of 1998, and which had –in the case of Honduras—devastating effects. “Hurricane Mitch –as social political phenomenon—stands as a watershed in the contemporaneous history of Honduras” (Víctor Meza).

The electoral political reforms are inserted in a more global context of modernization of the State and restructuring of the economy that started in the nineties during the last century. The economic reform was followed by the institutional reform, the military and police reform, and the judicial reform, among others.

Which were the social and political effects of Hurricane Mitch?

The hurricane acted as a driving force of the social and political life of the country. It contributed to develop greater organization and participation levels of the social organizations in the reconstruction and transformation tasks as a result of the insufficiency and vacuums of the state institutions.

Before Mitch, Honduras had a typical political regime of presidential predomination, that is to say, the Executive Power used to control the Legislative Power, and the Legislative Power would appoint the judges of the Supreme Court of Justice. Today, the political

* Vice-Provost of International Relations of UNAH. Research Professor of the Department of Social Sciences of the Universidad Nacional Autónoma de Honduras (UNAH). Academic Director of the Master´s Degree in Political and Social Studies of the UNAH-Universidad de La Habana.


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regime continues to be a presidentialist regime, but the legislative branch has each day more control over the executive branch.

The first political consequence in the Honduras post Mitch was confirming the trend that the political party that was winning the Republic´s presidency was not reaching a legislative majority.

The crisis of the parties became more pronounced after Mitch, especially during the reconstruction period. One of the main tasks was the non-partisanship and the depoliticization for the institutions in charge of control and accountability. However, the major problem is the political clientelism, and especially, the instrumentalization and manipulation of the state institutions by part of the leaders of the political parties. The new public institutions have ended up being “captured”, which has reinforced a corporative and clientelar state model.

I. The Take-Off of the Democratization ProcessThe process of transition to democracy in our country took off

in 1978, and it was the result of the pressures against the military government established since 1971 by the political parties, and popular groups, especially the unions, as well as of the drastic change of the regional environment and of the little discrete pressures of the Carter Administration of the United States of America.

In chronological terms, the transition started in March 1976, when the military government published a chronogram through which it created the Advisory Board of the Chief of State, and one of its objectives was the preparation of a new electoral law. Such law was decreed in 1977 by the General Juan Alberto Melgar Castro, Chief of State in the Cabinet, based on the project prepared by the Advisory Board, which derogated the electoral law of 1966. The Advisory Board referred to was a quasi-legislative organ very questioned by the traditional political parties and the Honduran Private Enterprise Board (COHEP), in which the emerging political parties (Partido de Unidad e Innovación Nacional, PINU, and Democracia Cristiana), the organizations and popular groups participated.


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The National Constituent Assembly was established in July 1980; it enacted the current Constitution (Decree No.131 of January 11, 1982), pronounced a new Electoral Law and chose as temporary president General Policarpo Paz García, the last military governor. The election of Paz García was part of the agreement (which exact content is not known as of today) between civil politicians and militaries, where a transition process was negotiated without unpleasant surprises for those in uniform.

The new Constitution provided continuity to the presidentialist type of government, adopted since the independence from Spain in 1821. The operation of the institutions of representative democracy was reactivated, such as the National Congress, the National Election Tribunal, the political parties and the elections. In sum, the slow construction of the State based on the rule of law started within an unfavorable context. In fact, the internal armed conflicts were devastating the region, and the militaries consolidated their political hegemony on the emerging civil institutions. Therefore, in the countries belonging to the denominated “Triangle of the North” (Honduras, El Salvador, and Guatemala) democracies under the military guardianship were consolidated.

“The form of government is republican, democratic, and representative. It is exercised through three powers: Legislative, Executive, and Judicial, complementary and independent and without subordination relations (Art. 4)”. In practice, during a good portion of the eighties in the last century, the President of the Republic used to control the rest of the powers of the State because the party of government kept a comfortable majority in the National Congress, and it would elect the judges of the Supreme Court of Justice. During those times, the President of the Republic used to share the power spaces with the almighty Chief of the Armed Forces. The situation gradually started changing, and today the President of the Republic has less power than before, and he has the obligation to share it with the President of the National Congress and other strategic actors of the governability process.


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In such order, the Armed Forces (FFAA) continued to be a key actor in the national life, and they reaffirmed merely political functions, as being guarantors of the Constitution, of the free vote principles, and alternateness in the exercise of the Presidency of the Republic (article 272). The determining Castro influence was uncovered when the President of the Republic exercised his leadership on them, through the Chief of the Armed Forces (article 277). Also, the chief of the military institution was appointed by the National Congress and could only be removed from his position when sustained by two thirds of the votes of the congressmen. The militaries withdrew discretely from the government stage, keeping a type of veto power on the transcendental decisions of the civil politicians.

Signing the Peace Agreements of Esquipulas II, on August 7, 1987, is the beginning of the demilitarization process of the political power in the region. It accelerated with the fall of the Berlin Wall and with the end of the Cold War. In the case of Honduras, in 1995, the demilitarization process of the political power was initiated, through the reform of some of articles of the Constitution that basically refer to three aspects: a) The figure of Chief of Armed Forces disappears, and the Minister of Defense is led by a civilian, and the Joint Chiefs of Staff becomes an operative technical organization; b) the compulsory military service is eliminated, and it is transformed into voluntary service, and, c) the Public Security Force (FUSEP), which was a militarized police that operated as a branch of the Armed Forces, becomes a National Policy under the aegis of a new cabinet office created for such purpose denominated Security.

In order to have global vision of the context of the electoral-political reform process, it is advisable to know the content and scope of the standards and regulations that govern it.

II. The Political Organizations and Electoral Law of 1977: A Vision of the ExcludedThis was a short-lived law because it only regulated the electoral

process to elect the legislators to the National Constituent Assembly


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of April 20, 1980. The 1977 Law is a truly innovative instrument, and it reflects the points of view of new social forces and reformist political groups excluded by the leaderships of the traditional political parties (the Liberal and the Nacional).

The principal innovations introduced in the Honduran electoral law were: a) The celebration of internal elections in the political parties; b) the principle of proportional representation in the internal elections of the parties; c) the flexibilization of the requirements for the registration of new parties and, d) the acknowledgment of the right to independent nominations. The 1977 reforms were a step ahead in the modernization and democratization of the electoral processes, but which the internal forces –a majority— of the traditional parties did not finish assimilating and digesting. On the other hand, the reforms largely favored the traditional parties, especially for the Partido Liberal, because the internal trends allowed the incorporation of new members that belonged to the emerging groups. In this group, the opening to new internal trends operated as political inclusion mechanism, and they organically strengthened the parties.

III. The 1981 Electoral Law: Setbacks and AdvancesThis law was enacted by the National Constituent Assembly,

in April 1981, and derogated that from 1977 issued by the military government of the General Melgar Castro. It was Roberto Suazo Córdoba (1982-1986), of the Partido Liberal, the first civil president of the transition that made possible the creation of electoral democracy in the country.

The new Law interfered with some of the advances accomplished in the previous one because the traditional groups regained control of the National Congress and the National Election Tribunal. For example, it increased from 10,000 to 20,000, the number of signatures necessary to request the registration of a political party, increased from 1 % to 2% the number of signatures required for the registration of independent nominations for legislators or nominations to the Presidency of the Republic and Designee.


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A positive aspect was the establishment of the political debt, in other words, the public financing of the electoral campaigns according to the number of valid votes obtained by each political party. On the following year, a special law was enacted, which created the National Citizen Registry, which main purpose was the creation of the National Electoral Census.

During the Azona de Hoyo administration (1986-1990), two electoral reforms were made: The first one in 1986, which constituted an important step for the internal democratization of the parties, when the National Congress decreed the changes to the Electoral Law. The actual leaders of the parties were convinced that the internal democracy, expressed through the primary and internal election system to choose its authorities and the candidates to popular election parties was the more appropriated mechanism to make the governability in the parties and among parties possible.

The second reform to the Electoral Law was made in 1989, and in some aspects it became a step back for the democratization of the parties: the national electoral quotient was eliminated, and this aggravated the problem of the political representation in the Congress. Actually, in 1985, the number of legislators increased dramatically from 82 to 134, the amendments of 1989 set their number in 128, and the legislators by national electoral quotient that corresponded to each of the political parties were eliminated.

During the Callejas Romero administration (1990-1994), of the Partido Nacional, the changes in this field were a few but important. In 1992, the separate vote in single ballot was introduced. In the electoral ballot, there were vertical lines marked in the columns corresponding to each political party and independent nominations. Likewise, the picture of the candidate to presidency and the name of the candidate to major were added, and in September 1993, a decree was issued that facilitated the registration of the Partido Unificación Democrática (left). It was agreed to apply the separate vote in a separate ballot for the general elections in 1997.

During the Reina Idiáquez administration (1994-1998), the National Convergence Board (CONACON) was created. Within such


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organization, the political parties reached two main agreements: a) the domiciliary vote; and b) the separate vote in separate ballot, for the President of the Republic and the Designees, for the legislators at the National Congress and Central American Parliament and city councils.

During the Flores Facusse Administration (1998-2002) the country was devastated by Hurricane Mitch, and its administration focused on tasks of rehabilitation, reconstruction, and transformation material and human infrastructure of the country. A positive consequence of the act of God was the rise of a new social dynamic that implied greater organization and participation levels of the organizations of the society in reconstruction tasks as a result of the sufficiency of the state institutions. The new social dynamic also reached, as we will see later, the political and electoral institutions.

IV. Reforms to the Electoral SystemThe group of constitutional and electoral reform proposals known

as “the 2001 agreements” is the result of a favorable internal situation to the changes and to a sound support from the community of cooperative countries, especially from the United Nations Development Programme (UNDP). On September 4, 2001, the principal leaders of the political parties, including the five presidential candidates, signed the Manifesto of Political Parties to the Honduran People.

In such time, the political leaders assumed the following commitments: “ a) Separation of the Supreme Electoral Tribunal of the National Citizens Registry, b) Constitutional incorporation of the plebiscite and referendum, c) Elimination of the presidential designee figure and creation of the vice-president figure, d) Regulation of the electoral campaigns, e) Regulation of the politics financing, and, f) Reviews of the election mechanisms for legislators” (Political Commission of the Political Parties, p.27, 2005). In essence, an inter-party agreement was drafted to promote the necessary constitutional reforms and draft a bill of the Political Organizations and Electoral Law, which would modernize the electoral regime and improve the political competition possibilities.


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Maduro Joest administration (2002-2006) had the task of drafting a new electoral law. This task was assumed by the different legislative groups represented in the National Congress, which actually ousted the central authorities from the political parties. The result was the enactment of a contradictory law that contains inconclusive reforms and unexpected results.

Under the slogan “The civil society proposes and the political power decides” a debate was started on the electoral political reform. The new law was agreed upon among the different political parties, and the participation of the civil society was intense since its beginning until the proposal stage, through a coallition of NGO´s denominated Movimiento Cívico por la Democracia (Civic Movement for Democracy) (MCD, for its name in Spanish). The de-facto powers, through the powerful Mass Media Association, influenced greatly that regarding the regulation of electoral campaigns and opinion surveys.

The principal characteristic of the new electoral law of 2004 is that it is the result of an agreement among the different political parties and the participation of the civil society was intermittent through the coalition denominated Movimiento Cívico por la Democracia. For this reason, “it seems a contradictory combination of progress and stagnation, of democratic evolution and traditional backwardness…, and it shows the inevitable cracks and contradictions resulting from a difficult and long process of political agreement” (Meza: 2004: 3). A core characteristic of the new law is that it can only be reformed or amended by a qualified majority of two thirds of the total votes of the members of the National Congress (article 51 Constitution).

A. The Electoral BodyIn the past, the National Election Tribunal (TNE) was comprised

by seven representatives proposed by the five political parties and two representatives appointed by the Supreme Court of Justice. The TNE was an organization with a strong political-party interference, and the party of government was controlling it. One of the objectives of the reform was to make of the electoral institution a non partisan body and actually transform it into a technical and impartial organization,


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an objective that was not accomplished because the party of the government then made an alliance with the Christian Democracy, and it continued to maintain the control of it. Aside from changing name, the conservative groups were able to exclude the social democrats from the PINU and the left, represented by the Partido Unificación Democrática.

The National Election Tribunal was transformed in a Supreme Electoral Tribunal (TSE), and the National Citizens Registry (RNP) was separated from it. Currently, the TSE is comprised by three justices and a deputy member, who are elected by the National Congress with at least 2/3 of the votes of the representatives, for a five-year period, and they do not have a formal political affiliation.

B. Presidential Election

B.1.ElectionSystemSince 1982 and until 2001, the election of the President of the

Republic was made along with three presidential designees. In 2002, the figure of the presidential designee was eliminated, and the one of a vice-president was created, who is elected jointly with the President of the Republic by simple vote majority through universal, direct, and secret vote. In order to introduce a higher transparence in the public management, the president of the National Congress and the President of the Supreme Court of Justice cannot be candidates to the Presidency of the Republic for the constitutional period for which they were elected. However, this reform has currently generated a debate as to it unconstitutionality because constitutional articles of an inflexible or irreformable nature were affected by the ordinary procedure. Finally, through ruling of the Supreme Court of Justice from December 14, 2007, the unconstitutionality of reforms was declared.


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B.2.PresidentialRe-ElectionThe liberal Constitution of 1894 absolutely prohibited the

presidential re-election because it was one of the causes of the bloody civil wars that devastated the country until 1933. The dictatorship established in 1936 by the General Tiburcio Carías Andino, whose term of office extended until 1948, broke the tradition, which was re-established in 1957. Since then, the presidential re-election is absolutely forbidden, and the violators of this regulation or those who directly or indirectly propose a reform could be punished with an immediate suspension of their positions (in the case of public servant), and they will be disqualified from public office for ten years (article 239 of the Constitution). In the same direction, the article 4 of the Constitution declares that “the alternateness in the exercise of the Presidency of the Republic is compulsory. The infraction of this regulation constitutes a crime of treason.”

B.3.TermofOfficeHistorically, the presidential term has been four years. Again, it

was during the dictatorship of Carías Andino (1933-1948) that it was extended to six years, and such term was maintained until1982, year in which the country returned to the four-year period. The articles regarding the presidential period (239), the form of government (4), the territory (9), and, the non re-election principle (239) are the inflexible or irreformable articles of the Constitution of Honduras.

B.4.ElectionsThe presidential, legislative, and municipal elections take place

simultaneously (in separate ballot drop boxes and separate vote) on the third Sunday of November every four years.

The National Electoral Census is public, permanent and inalterable. The Supreme Electoral Tribunal is in charge of the preparation, improvement, and publication of the elections. Vote is a right and a public duty, and therefore, it is an obligation.


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C. Legislative Election

C.1.KeyFunctionsoftheElectoralSystemThe Honduran parliament is unicameral, and it is comprised by

128 legislators and the same number of deputy members, who are elected through direct vote for a four-year period. “The legislators are the people´s representatives; their departmental distribution will be made based on the quotient established by the Supreme Electoral Tribunal” (article 202 of the Constitution).

The country is divided in 18 constituencies that correspond to the same number of departments. Of the 18 constituencies, 16 are plurinominal and 2 are uninominal. For the former, the proportional representation principle applies, and for the latter, the simple majority principle does.

C.2.ElectoralSystemUsedtoConstitutetheLegislativeBranch

Since 1957, the proportional representation principle was adopted, applying the D`Hondt system through closed and blocked lists.

The establishment of the personalized preferential vote system is considered the main accomplishment of the electoral political reform. The new system includes the picture of the legislator candidates. This novelty, in the department with higher electoral volume (Francisco Morazán and Cortés) can result in uncomfortable ballots for the voters, due to their size. For example, the ballots in the department of Francisco Morazán contain 115 pictures of candidates of five parties. The elector faced the dilemma of choosing 23 candidates in an average time of three minutes. During this same period of time, s/he had to choose the presidential ticket and the municipal-type institutions.

In the legislative elections, the citizens have the possibility to break their vote, both at the primary elections as well at the general elections, and according to their preferences, determine the priority order of the candidates, whose integration in the ballots is made respecting the proportional representation principle. In sum, the principle of the most


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voted candidate is applied, and in this way, the voters become citizens that elect with greater freedom and autonomy margins.

Which has been the impact in the political system for modifying the way of electing the legislators? In the first place, the citizen prepares its own ballot, both in the internal elections as well as in the national ones, and evidently, it is a severe blow for the “owners” of the internal forces of the parties because they cannot hand pack their candidates anymore, a system which allowed many abuses. In the second place, the “weight” of the internal trends or forces is reduced, but such “lost weight” is not won by the parties but by the figure of the most voted legislator, who becomes a natural leader of the department, one who is freer from trends, less obligated with the parties, and more vulnerable in front of the de facto groups (whether legal or illegal) that usually finance their political campaigns.

D. Direct Democracy Institutions The Honduran Constitution, in its article 2, states that “the

sovereignty corresponds to the people from whom all the State´s powers that are exercised by representation emanate”.

D.1.ReferendumandPlebisciteIn the context of the reform process started in 2001, participative

democracy institutions were created, as the plebiscite and referendum, in order to advance in the creation of a more open, participative, and transparent society.

The referendum will be called upon an ordinary law or a constitutional regulation, or its reform, approved for its ratification or disapproval by citizenship. The plebiscite will be called upon constitutional, legislative, or administrative aspects on which the constituted powers have not made any previous decision. They have initiative to call to a referendum or plebiscite: a) The National Congress, upon initiative of at least 10 legislators; b) the President of the Republic, upon resolution of the Cabinet, and c) the citizenship, when it gathers 6% of the signatures of the electors registered in the


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National Electoral Census. The National Congress will know and discuss such petitions, and it will approve them with the affirmative vote of the two thirds of the totality of its members. After that, the National Congress will approve a decree determining the details of the consultation, ordering the Supreme Electoral Tribunal the call for the referendum or plebiscite (article 5). The following constitutional articles, considered as inflexible or irreformable, will not be the object of the referendum or plebiscite: a) form of government; b) national territory; c) presidential term, d) non re-election, and e) the one regarding those who cannot run for President of the Republic for the following period (article 374). The exercise of democracy mechanisms, as those established above, have many restrictions and limitations that cause serious doubts of their practical application.

D.2.TheOpen“Cabildos”The open “cabildos” are considered direct democracy mechanism.

The municipal-type institutions conduct open cabildo sessions with the purposes of debating and making agreements on important matters or be accountable to the population in general (article 33B of the Law of Municipalities).

V. Reforms to the Political Party System “The political parties legally registered are public law

institutions which existence and free operation are guaranteed by the Constitution and the Law, in order to accomplish the effective political participation of the citizens” (article 47 of the Constitution). One of the characteristics of the Honduran political system is the “de facto exclusivity or monopoly” that the political parties have in terms of political representation so that, eventually, citizens can be elected in popular election positions. Under the current circumstances, it is not possible to become President of the Republic, legislator or mayor at margin of the political parties. There is a non written agreement among parties to block, on a systematic way, any attempt of independent nominations.


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A. Internal Democratization

A.1.ThePrinciplesThe internal democratization process of the parties is one of the

factors that explains the survival of one of the oldest bipartisan systems of the continent: Partido Liberal (1891) and Partido Nacional (1902), which have only been divided one time. The struggle for the opening and internal democratization was between the reformist sectors excluded by the traditional leaders of the Liberal and Nacional parties and the emerging forces (PINU, DC and left wings) in the ocassion of the transition to democracy, during the second half of the sixties in the last century. The foundation of the internal democratization was established in article 17 of the Political Organizations and Electoral Law of 1977, which says: “the political parties should guarantee its affiliates, through its bylaws, the direct or representative participation in the election of its leaders. It is clear that the right of the affiliates to the parties to elect their internal authorities (internal elections) and the popular election positions (primary election) is a fundamental and basic right of the partisan legitimacy.

The internal and primary election system is a highly institutionalized process that even has a defined date for its celebration: the third Sunday of February of the year in which the general elections will take place (article 113 of the Political Organizations and Electoral Law). However, the counterreforms of 2008 modified the date of the internal and primary elections for the third Sunday of November of the year before the general elections. The internal and primary elections of the traditional political parties are each time more like a first electoral round of a country with a two-round system. In order to strengthen the morale in the political parties, the law has established the ipso jure dissolution of the internal movements, once the primary electoral process is completed (article 128 of the Political Organizations and Electoral Law).

A.2.ElectionMechanismsofInternalAuthoritiesThe political parties should conduct internal electoral processes

to elect its authorities. The parties have autonomy to establish systems


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and mechanisms that they consider appropriate. The parties are the ones that organize internal elections without the intervention of the national electoral authorities. However, for the first time in the modern electoral history of the country, the Supreme Electoral Tribunal (TSE) disabled the current Vice-President of the Republic, who was a former candidate of the party of government, after considering that he does not fulfill the eligibility requirements.

A.3.ElectionMechanismforCandidatestoPopularElectionPositions

The primary elections serve to elect the candidates to popular election positions through direct and secret vote of the members and supporters. To exercise vote in the primary elections, the only requirement is to be registered with the National Election Census and have the identity card, which is, at the same time, national identity document and electoral ID. These are open primary elections, similar up to a certain extent to the primaries of the US parties. The primaries take place under the direction, control, and supervision of the Supreme Electoral Tribunal, with the support of the Electoral Commission of the respective political party.

A.4.TheInternalMovementsorTrendsofthePartiesThe internal movements or trends that register candidates for the

President and Vice-President ticket, list of candidates to the Central American Parliament, list of candidates to the National Congress and of the members of the municipal-type institutions, in half of the departments and municipalities of the county, participate in the internal and primary elections. Also, the internal movements should present a list of citizens that support the registration, having identity card, names and last names, domicile, signature or fingerprint in a number no less than two percent (2%) of the total of valid votes obtained by the respective political party, at the higher voting electoral level, in the last general election. It is understandable that the internal movements of the traditional parties can acquire the configuration and logic of mini political parties.


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B. Financing of Political Parties

B.1.TypeofFinancingSystemThe financing of the Honduran political parties is of public and

private nature.

Public Financing: The Political Debt

The public financing is denominated political debt, and it is the contribution granted by the State to the political parties for the financing of the electoral process, in conformity with the number of valid votes obtained by each political party that participates in the general elections.

The State, through the Supreme Electoral Tribunal, gives to the political parties that participate in the general elections, the sum of twenty Lempiras (Lps. 20.00) (1 U.S.$= Lps. 19.02) for each valid vote that had been obtained in the most voted elective level.

In December 2005, the National Congress started an electoral counter-reform process that allowed changing the date of the internal and primary elections, and which established 1% of the current income of the general budget of the Republic, which represent 727 million lempiras. The Honduran state disbursed 64 million lempiras for political debt concept in the electoral process of 2005. The difference is 663 million, and the increase for valid vote went from 32 lempiras (1.68 U.S. dollar) to 363.50 lempiras (19.11 U.S. dollar). The civil society organizations, the churches, and the reformist political parties (PINU and UD) created a resistance campaign and made the legislators of National Congress congressmen go back.

Private Financing

The electoral campaigns are also financed through popular collections, contributions, or donations of the public servants that work in the centralized or decentralized public administration, as well as of private contributions of businessmen and merchants


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that are members or supporters of the respective party. All private contributions should be registered in the statutory accounting books of the parties. The contributions and donations greater than 120 minimum salaries (minimum salary is 2,400.00 Lempiras, which is equivalent to U.S.$ 126.18). Funds of the political parties should be deposited in financial institutions of the national financial system, under their name??’ and to order of their respective authorities.

B.2.ProhibitionofContributionsfromCertainSourcesThe political parties cannot receive anonymous contributions,

contributions from executives, directors, or stockholders of the corporations with concessions with the State and those that exploit gambling or are related to illicit commercial activities, and government subventions or subsidies, organizations or foreign institutions. The violation is penalized with a penalty equivalent to double of the amount that is proved to be received (article 83 of the Political Organizations and Electoral Law).

B.3.DurationoftheElectoralCampaignsThe duration of the electoral campaign, both in internal and

general elections, has been reduced to 60 and 90 calendar days, respectively, before the actual day elections take place. Similarly, the results of opinion surveys and polls cannot be published during the terms indicated above. The topic on the duration of the electoral campaigns conflicts with the freedom of speech defended at all costs by the powerful Mass Media Association, which gathers the owners of newspapers, radio and TV stations. A pending task is the introduction of the principle of equitable access of the different political forces to the mass media during the electoral campaigns. The cost of a minute in national coverage TV and at prime time ranges about 1,500 U.S. dollars, which actually excludes the parties and candidates with less resources. The political parties, especially the party of government prefers to “ask forgiveness than it is to get permission,” and they frequently violate the law.


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B.4.TransparencyandAccountabilityoftheElectoralProcess

Financing of political campaigns constitutes the gray zone of the democratic construction process of Latin America, and the Honduran case is not the exception. In our country, every four years general and internal elections take place, and each of them requires its own financing.

The internal and primary elections do not receive direct public financing, and its costs are assumed by the main candidates of the internal movements or trends. The economic groups try to contribute the least as possible in the internal disputes and save their resources for the general election.

However, it is important to recognize that bases have been included to ensure the transparence and accountability of the electoral process. In this sense, for the first time in 24 years of democratic life, the political parties published their financial statements. But the problem is somewhere else. The problem lies in the fact that disbursements declared by the parties do not match their incomes, and the electoral organization does not make anything to solve this situation.

C. Positive DiscriminationThe State guarantees the full exercise of the rights of citizens,

both for men and women, in equal opportunities. The political parties should create the material conditions that allow the actual incorporation of women in all aspects of the partisan life.

C.1.GenderThe State, through the Supreme Electoral Tribunal, will make

sure that in the government structures of the political parties and in the nominations to popular election positions, there is no discrimination based on gender, creed, race, religion and any other form of discrimination.


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In order to accomplish an effective participation of women, thirty percent basis (30%) basis is established as minimum, applicable to the positions of direction of the political parties, permanent and deputy legislators to the National Congress, to the Central American parliament, mayors, vice-mayors, and town councilors. In those departments where representation falls only in one legislator, these provisions will not be possible.

C.2.OtherPopulationsandMinoritiesDespite the fact that Honduras is a multiethnic and pluricultural

country, and despite the fact that the majority of the population is of mixed ancestry (“mestiza”), the minorities (Amerindians, blacks, creoles, Arabs and Chinese) do not vindicate in electoral terms a special status because they are fully integrated to the national society.

VI. Conclusions: Trends and Paradoxes The two-party political system continues to be dominant in the

political stage of Honduras. The traditional parties (Liberal and Nacional) accumulate 96% of the electorate that votes.

There is a serious, concerning, and growing rate of electoral abstentionism/absenteeism: 49% in the general elections of 2005.

The creation of ceilings to private contributions and the fair access of the different political forces to the mass media are the pending matters of the electoral right of Honduras.

Public financing has not worked as a partial substitute of the private one but as a complement.

The success of the electoral political reforms will depend to a large extent of the involvement of citizenship in its practical application and of the respect to rules of the game that should be observed by the different actors.


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The electoral political reform has been relatively slow, and it has not been able to revert the fragility of the state institution, as well as its limited credibility by the citizenship.

The Partido Liberal, with Manuel Zelaya Rosales as its leader, won the presidential elections, but the trend initiated in 2001, where the party winning the Executive Power did not reach a majority in the Congress, was confirmed. The governing party established an alliance with the Christian Democracy, institution that has become the “hinge” party that ensures a minimum of parliamentary stability. The electoral results granted 62 seats to the Partido Liberal, 55 to the Partido Nacional, five to Unificación Democrática (UD), four to Democracia Cristiana (DC) and two to PINU. The new event is that the UD (left) becomes the first opposition force because the rest of the parties participate in a de facto way in an informal governability agreement.

Honduras is on a crossroad in the topic of electoral reforms and other aspects. Since Manuel Zelaya took office, the border lines of the Honduran politics have been drastically modified because the most conservative fractions of the great traditional parties have left their past antagonisms to face the present modernizing trends in both parties.

The Electoral Supreme Tribunal (TSE), which generated a lot of citizen expectations in the beginning and was intended to become a non-partisan organization with professional and technical capacity in practice, ended up being inefficient and slow in the electoral process management. One of the negative aspects of the process was the delay of the TSE in delivering the results, a situation that contrasted with the swiftness with which some mass media acted. It is evident that there was lack of timely information to clear the citizens´ uncertainty.

On such regards, the FOSDEH states, “the TSE was incapable of enforcing respect of law, and that lays down a serious marker since it distorts the validity of the regulations and creates a no man`s land”. (FOSDEH: 2005: 2)

In most cases, the logic of the reforms to the electoral political game rules is due to the particular interests of power groups of the


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political parties and of the de facto power groups that control the National Congress responding to the demands of the moment.

During 24 years of democratic construction of the country, the Constitution of the Republic has experienced no less than twelve amendments, and there is another similar number to be ratified. Three electoral laws have been in force (1977, 1981 and 2004). The first one suffered two reforms in 1978 and in 1979. The one of 1981, on the contrary, experienced 17 reforms, almost one per year.

The current law, that is, the one of 2004, was reformed by the desire of the partisan leaders, who fear the strengthening of the citizen´s movements, and it confirms a trend in the reform processes in the country in the different fields of reform-stagnation-counterrefomation.

Whatever the reason is, the main problem lies in the political delay of the elites due to their limited education and training that inevitably lead them to perceive the reform processes as a threat to their short-term interests.

The trends of the coming years are headed towards the creation of electoral districts, the incorporation of the election of legislators through a national list, and the implementation of the electronic vote. Currently, the department is the constituency at legislative level, and it has worked well in most of them, but the problems take place with the most populated departments, as Francisco Morazán and Cortés, where 23 and 20 legislators, respectively, are elected, and the elector has to choose from a gigantic ballot that includes pictures of more than 100 candidates.

The other trend that is present in the debates on electoral topics is the growing need to separate in time the presidential elections from the legislative and municipal elections. Currently, the legislative and municipal elections are placed on a second level, and the attention is focused on the presidential elections. The separation, timewise, of the elections is a necessary condition to strengthen the political space at departmental and local level.


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The success of the electoral political reforms will depend, to a great extent, of the involvement of citizens in their practical application and of respect to the rules of the game that should be observed by the different actors.

Actually, the electoral political reform, as part of the State reform, has been relatively slow, and it has not been able to totally reverse the fragility of the state institutionality as well as its limited credibility by the citizens. (PNUD, 2006:12). The skepticism of the citizens and its non involvement in face of the reforms lie in the fact that the same have focused on macro institutional aspects that have not been able to impact the daily life quality of most people.

In sum, it is a reason of concern for the construction process of the State of Democratic Law, paraphrasing Laura Restrepo, that each day the number of people who believe more in the law written by the wind in the sand is larger than the earthly justice.

BibliographyWorks and Articles

Barrachina, Carlos. “La lógica parlamentaria en Nicaragua y Honduras”. Mimeographed, Universidad de Quintana Roo, 2005, Chetumal, Quintana Roo, Mexico.

Córdova Macías, Ricardo. “Sistematización del relato de la experiencia de la reforma política hondureña, abril 2001-diciembre 2002”. In: Honduras: Los acuerdos son posibles PNUD, 2005, Tegucigalpa, M.D.C.

Comisión Política de los Partidos Políticos: Honduras. “Los acuerdos son posibles”. PNUD, 2005, Tegucigalpa, M.D.C.

Interforos. “EI Fortalecimiento Democrático, una tarea que no Podemos Descuidar”. Policopiado, Tegucigalpa, 27-9-1999.

Foro Social de la Deuda Externa y Desarrollo de Honduras (FOSDEH). Una elección para avanzar ¿o retroceder? November 2005. Available in: www.fosdeh.net.


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Payne, Mark et al. La Política importa, Democracia y desarrollo en América Latina. Inter-American Bank FOR Development/ International Institute for Democracy and Electoral Assistance, 2003, Washington, D.C.

Paz, Ernesto. “La reforma política electoral en Honduras”. In: Zovatto, Daniel and Jesús Orozco. Reforma Política y Electoral en América Latina 1978-2007. Mexico: Instituto de Investigación Jurídicas de la UNAM and International IDEA, 2008.

Posas, Mario. Modalidades del Proceso de democratización. Editorial Universitaria, 1988, Tegucigalpa, M.D.C.

PNUD. La democracia en América Latina. Hacia una democracia de ciudadanas y ciudadanos. Magna Terra Editores, 2004, Guatemala.

PNUD. Informe sobre el desarrollo Humano, Honduras 2006 (Sinopsis). PNUD, 2006, Tegucigalpa, M.D.C.

Meza, Víctor. Honduras: Sistema político, crisis y reforma. CEDOH- Edigrafic, 2003, Tegucigalpa, M.D.C.

Meza, Víctor. Democracia, Legislación Electoral y Sistema Político en Honduras. CEDOH-Edigrafic, S de R.L. 2004, Tegucigalpa, Honduras.

Nohlen, Dieter. Enciclopedia Electoral Latinoamericana y del Caribe. Inter-American Insitute of Human Rights (IHDH), 1993, San José, Costa Rica.

Salomón, Leticia. Democracia y Partidos Políticos en Honduras. CEDOH-Edigrafic 2004, Tegucigalpa, M.D.C.

Laws and DecreesConstitution of the Republic (Decree 131 of January 11, 1982).

Decree No.572 of the Chief of State in the Cabinet. Imprenta y Encuadernación “El Arte”, Tegucigalpa Honduras, 1977.


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Decree 150-82 of November 17, 1982, which contains the creation of the National Citizens Registry (RNP).

Decree 147-86, published in the Official Newspaper LA GACETA No. 25076 of 11-15-1986.



See Decree 182-97, published in the Official Newspaper LA GACETA of 16 10-1997.

Special Law regarding the Direct Internal Elections of Generals of Supreme and Municipal Authorities (Decree No. 159 -85 de 19-9-85). This Law amended articles 186, 193 and 200 of the Electoral and Political Organizations Law.

Electoral and Political Organizations Law (Decree 44-2004 of April 1, 2004).

Municipalities Law (Decree No. 134-90 of October 29, 1990).

Law on Transparency and Access to Public Information (Decree 170 of November 26, 2006).

Law on Citizen’s Participation (Decree 3-2006 of January 27, 2006).


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The new electoral reform in Mexico 2007-2008

Manuel Carrillo Poblano*

IntroductionBeginning in the seventies, a political transformation hit the

world. Governments that originated in dictatorships and authoritarian regimes lost their governance legitimacy, and a movement in favor of democracy began1. The new cultural and political plurality of societies, especially in middle economically developed countries or those facing serious social inequality, did not want to accept leadership from leaders whose base was the inheritance of power, imposition by force or succession through a governing elite. This deep and gradual transformation in society required new ways to define who should be in charge.

The path chosen by most societies has been democracy, where elections are the basis for legitimacy. Therefore, electoral practices in the world have grown, expanded and consolidated. From 1973 to 2003, 93 countries made the move to democracy. For this year, of the 191 member countries of the United Nations, in 140 there are democratic elections with different quality standards. Currently, there are 213 countries, 200 of which have regulations to hold elections. This means electoral issues are key to the new legitimacy that applies to the governing authorities in different States2.

* International Affairs Coordinator at Instituto Federal Electoral de Mexico (IFE).

1 Huntington, Samuel (1991): La Tercera Ola, La democratización a finales siglo XX. Argentina: Paidós, p.17-40.

2 Reynolds, Andrew et al. (2006). “Los sistemas electorales de 213 países independientes and territorios asociados (2006)”. In: Diseño de sistemas electorales: el nuevo manual de IDEA Internacional. Sweden: Instituto Federal Electoral, Institute for Democracy and Electoral Assistance and Tribunal Electoral del Poder Judicial de la Federación, p.184-192.


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Given this new international reality, the permanence and peak of electoral practices have become more important. Now, societies and political parties not only demand legal and transparent elections, but they also want elections to be fair and reliable within contexts of high competition for power. This new state of affairs calls for the need to keep the rules of the electoral game updated in order to meet the needs and demands from XXI century societies.

Mexico was not exempt from this democratization that took place in the world. External influence on this process was valued and considered by the government in different ways; nevertheless, the transition experienced in Mexico was not defined by external factors, though their role was important. There were influential factors related to the international economy and the so-called citizen diplomacy.

International economic factors are directly related to the economic modernization process undertaken by the government in the eighties and nineties. We can mention two representative instances: the signing of the North American Free Trade Agreement (NAFTA) in 1993 and the incorporation of Mexico in the Organization for Economic Co-operation and Development (OECD) in 1994.

On the other hand, electoral observation in Mexico moved forward rapidly even without legal recognition. Local observation groups joined groups of international observers, especially from the United States. Citizen diplomacy was ahead of electoral regulations in the electoral observation process. Starting with the intermediate elections in 1985, both groups of observers created a context of pressure to reform the rules of the political game3.

There were key internal factors in the country’s transition. The student movement from 1968 and the crisis in the political representation in the elections of 1976, among many other factors, could be considered two of the key elements for the transformation of the political system through electoral reforms. Likewise, the

3 Montero, Gibbran and Mendoza, Minerva (2008). Tesis: Evolución and retos de la observación electoral internacional. El caso de México and el proceso electoral federal 2006. Mexico: UNAM and FCPyS, p. 44-62.


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electoral-political reform of 1977 started what has been called the mechanics of the Mexican political change4.

Contrary to the transitions in Eastern and Western Europe, elections were the core of the Mexican experience. As of the reforms in the electoral system, it has been possible to dismantle the authoritarian regime that governed the country for almost 70 years and so to peacefully transition to a party system with a competitive electoral regime.

Mexican electoral reforms have been more than an opportunity for political dispute; they have been a factor that contributed to the country’s democratization. In this way, electoral legislation and the creation of institutions have not been independent variables, but rather they have responded to the political context and the plurality of the Mexican society. Electoral reforms transformed the country in such a way that, contrary to the past, when the president decided who would be in charge, today that right is exercised by citizens through suffrage. Elections have played a citizenship role in Mexican political life. The citizen is in charge of freely choosing the representatives to different public office posts; where parties compete on an equal footing under an unbiased and reliable electoral administration that reaches all members of society.

I. Brief Background of Mexico’s Electoral HistoryThe electoral race in Mexico has been the source of almost all

political struggles and violence in our modern history5. The problem of how to lawfully access and transfer power was the background for the struggle among liberals and conservatives in the first half of the XIX century. There were no rules or institutions to regulate the struggle for power.

4 Becerra, Ricardo; Salazar, Pedro and Woldenberg José (2000): La mecánica del cambio político en México: Elecciones, partidos and reformas. México: Cal and Arena, p. 376.

5 Aguilar Camín, Héctor (2000). México: La ceniza and la semilla. México: Cal and Arena. Chapter I.


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An electoral protest took Porfirio Díaz to the country’s presidency in 1876, where he remained for around thirty years. To remain in power, he took part in fraudulent elections and tried to make them look democratic in order to justify his long term.

One of the main causes of the Mexican Revolution of 1910 was the electoral protest. The revolutionary movement began under the slogan “Effective suffrage, not reelection”, “which was launched by Francisco I. Madero. When the revolution ended, given the lack of fundamental political agreements and rules, the electoral disagreements split the winning revolutionaries thus causing military uprising in 1919, 1923, 1927 and 1929.

In 1929, Partido Nacional Revolucionario was created. It later became Partido de la Revolución Mexicana and is currently called Revolucionario Institucional (PRI). It was a response to the assassination of re-elected president Álvaro Obregón. From 1929 to 1976 there was political stability, but not democratic. The splitting up of the governing elite is processed by the ruling party. In fact, there were not significant gaps, but the elections were just a formal procedure that did not reflect the political reality in Mexico. Even though the country never stopped having elections and inviting citizens to vote, the political representation was single-party inside a plural and complex society.

In the seventies, the Mexican society could not and did not want to live under a single party. The political apparatus had problems in processing the country’s modernization. The student movement of 1968 claimed for fundamental rights to exercise the democratic freedom of expression, association, demonstration and transit.

On the other hand, during the presidential elections of 1976 only the candidate from PRI participated in the political race. Both the student movement and the representation crisis were a wake-up call since the country’s political stability was at risk because violence was becoming the only option to access power. There was an emergence of leftist groups and parties not recognized by the government and an urban and peasant guerilla who believed that violent conflict was the only option for a change.


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The hegemony of PRI through the governmental control of elections, the denial for new party registration, the lack of means for political expression and the lack of support for parties other than PRI were the conditions that this party reproduced in the different areas of the political representation in Mexico.

II. Electoral Reforms: Core of the Political Change in MexicoWhen faced with those social and political situations, the

government decided to call for a political reform in 1977, with the participation and competition of different political organizations and citizens. This reform included at least three main actions:

– The body of proportional representation was created. It changed the number of representatives elected by the majority from 300 to 1000 multi-member representatives who would be presented to the public through regional lists by each party that would be distributed in proportion to the voting percentages.

– There is a possibility of obtaining legal existence as a political party. There were two paths for this: permanent legal existence through certification from the electoral authority, which was then Federal Electoral Commission, appointed by the Ministry of the Interior; and conditional legal existence, that is, the party had to participate in the elections and get at least 1.5% from total national votes. With this reform, the following parties were granted legal recognition: Partido Comunista Mexicano, Partido Socialista de los Trabajadores, Partido Mexicano de los Trabajadores and Partido Demócrata Mexicano.

– Public financing and prerogatives for political parties. For the first time, political parties could get free spots on the radio and television to promote their initiatives, ideas and political propaganda. They would also have in-kind support for their


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electoral campaigns, publishing activities and there was also a tax-free catalogue

This reform is the beginning of a long process of changes to electoral procedures and institutions that has allowed Mexico to peacefully move from a hegemonic party system to a real electoral regime where the core is the political parties and citizen participation. Citizens are the ones who get to decide who should be in charge and not the president and his party, as was the case before the reform.

The transition in Mexico was peaceful, agreed upon and gradual in its design and implementation. Therefore, a democratic regime began with a strong party system, a competitive and unbiased electoral system and citizens who know their vote is respected.

The most relevant aspects of the reforms included the following issues: different formulas to include the Chamber of Deputies and the Senate, the impartiality of authorities, and electoral instruments, the prerogative regime, party financing, and mass media access.

The electoral reforms that have changed Mexico’s political life that began in 1977 were modified during the reforms of 1986, 1990, 1993, 1994, 1996 and 2007-2008.

One of the main topics covered in the reforms of 1977, 1986 and 1994 was the integration of the Chamber of Deputies and the Senate. Chart 1 shows the beginning of plurality in the political integration at the Chamber of Deputies after the reform of 1977. Even if PRI still holds the monopoly in public posts, it is no longer the only party aspiring to the presidency. It can also be seen that the reform had an impact on the size of this chamber, which went from 300 to 400 members. The reform of 1986 caused a closing gap between PRI and Partido Acción Nacional (PAN), and it was also the beginning of the strengthening of parties other than PRI, and the number of multi-member representatives increased. This reform had an impact on the integration of the Chamber of Deputies, which still has 300 elected by the majority, but the number of proportional representation delegates increased to 200. Currently, this model of 500 delegates from a mixed composition still prevails; it was the result of the reform of 1986.


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Chart 1. Composition of the Chamber of Deputies at the Federal Level, Mexico 1979-2006

Year PAN % PRI % PRD % PT % PVEM % OTHER %TOTAL

DELEGATES

1979 43 10.8 296 74 61 15.25 400

1982 51 12.8 299 74.8 50 12.5 400

1985 38 9.5 292 73 70 17.5 400

1988 101 20.2 260 52 115 23 500

1991 89 17.8 320 64 41 8.2 50 10 500

1994 119 23.8 300 60 71 14.2 10 2 10 2 500

1997 121 24.2 239 47.8 125 25 7 1.4 8 1.6 15 3 500

2000 207 41.4 208 41.6 52 10.4 8 1.6 16 3.2 9 1.8 500

2003 153 30.6 224 44.8 95 19 6 1.2 17 3.4 5 1 500

2006 206 41.2 106 21.2 124 24.8 16 3.2 17 3.4 31 6.2 500

Source: Federal Electoral Institute, Coordinación de Asuntos Internacionales, 2008.

As of 1988, transparency in the electoral organization became a key issue in the political agenda between political parties and the Ministry of the Interior (Segob). This Ministry was in charge of organizing and carrying out the elections. Political parties usually complained about a lack of objectivity since the Segob, which run the electoral institution, the Federal Electoral Commission, was appointed by the President of the Republic, and both usually belong to PRI.

The issue of a lack of objectivity during the elections was central to Mexico’s institutional development. The discussion on transparency in the organization of the elections by the political parties resulted in the creation of the Federal Electoral Institute as an autonomous organization in 1990. Nevertheless, the change towards full independence from parties was achieved with the reform of 1996, when the Executive Branch was separated from the organization in charge of elections. Consequently, the full autonomy of the electoral authority was the beginning of the strengthening of the independence from the ruling body of Mexico’s federal elections.

The general elections of 1988 were very controversial, especially regarding the presidential election. Even though the candidate from


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PRI, Carlos Salinas de Gortari, won, for the candidate who came second, Cuauhtémoc Cárdenas (Frente Democrático Nacional), the results from the elections were not completely transparent and lacked an important basis of political legitimacy. As can be seen in Graph 1, there is a significant closing of the curves that account for PRI (52%) and the 20% for PAN. Likewise, 23% of the seats belonged to other political parties (See Graph 1).

Graph 1. Percentage of Political Representation at the Chamber of Deputies from 1973 to 2006

Source: Lujambio, Alonso (2000). Updated by Coordinación de Asuntos Internacionales, Federal Electoral Institute (2008).

The reforms in 1993 and 1994 made a significant contribution to make elections transparent and reliable. Even though the candidate from PRI won by 17% compared to the candidate from PAN, political parties agreed that the elections were transparent and legal, though unequal since PRI had a monopoly over the governmental resources. This made political parties promote a new electoral reform, especially after the severe economic crisis that began in December, 1994. The government and its party were unable to stop the political pressure from the opposition to have a new reform. The economic crisis faced by Mexico from 1994-1995 has been one of the worst in the last forty years.

PERCENTAGE OF POLITICAL REPRESENTATION


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As a result, the government called for a new electoral reform that had as its core the need to reconsider the system to finance political parties in order to ensure a more fair competition. This was the key to the political transition in Mexico. As can be seen in Graph 1, in 1997 there was a greater plurality in the political representation at the Chamber of Deputies. PRI does no longer have a majority, but it rather got a little over 47%. PAN obtained about 24%, and Partido de la Revolución Democrática (PRD) 25%. For 2000, PRI obtained 41.6% of the political representation, while PAN got 41.4% and PRD a little over 10%. This became a new pattern in the relationship among political forces in Mexico.

By 2006 there was a radical change in the political composition of the Chamber of Deputies. PAN got first majority with 41% of political representation; PRI went down to 21% and el PRD went up to almost 25%.

On the other hand, the Senate has less mobility than the Chamber of Deputies. The main, but not the only reason for this is the centrality in the decisions on the electoral reform, that is, the composition of the Chamber of Deputies that is replaced every three years, while members of the Senate are replaced every six years.

Beginning in 1994 there was a significant change in the composition of the Senate. It went from two senators per state, which is a total of 64 senators, to a representation of four per state, for a total of 128 senators; up to one senator by proportional representation. This change is explained by the fact that the reform of 1994 took place in a particularly difficult context for the country: there was an armed conflict in the southern state of Chiapas and the then candidate to the presidency for PRI was murdered.

As shown in Graph 2, in 1982 the representatives of PRI had all seats in the Senate. The reform of 1994, which increased the number of senators, and the electoral reform of 1996, which was focused on the financing of political parties, resulted in the fact that for 1997 PRI got almost 60% of the representation in the Senate, while PAN got almost 26% and PRD got, for the first time in history, around 12%. The elections of 2006 significantly changed the correlation of the parties,


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almost as much as in the Chamber of Deputies. PAN became the first political party with a little over 44% of the political representation, while PRI only got 25% and PRD went down to almost 29%. Chart 2 shows the number of seats for this election: 57 for PAN, 32 for PRI, 37 for PRD and 2 for Partido Verde Ecologista de Mexico (PVEM).

Chart 2. Composition of the Senate 1982-2006Year PAN % PRI % PRD % PT % PVEM % Other % TOTAL

1982 64 100 64

1985 64 100 64

1988 60 93.8 4 6.3 64

1991 1 1.6 63 98.4 64

1994 25 19.5 95 74.2 8 6.3 128

1997 33 25.8 77 60.2 16 12.5 1 0.8 1 0.8 128

2000 46 35.9 60 46.8 16 12.5 5 3.9 1 0.78 128

2003 45 35.2 59 46.1 17 13.3 1 0.8 5 3.9 1 0.8 128

2006 57 44.5 32 25 37 28.9 2 1.6 128

Source: in-house compilation: Instituto Federal Electoral, Coordinación de Asuntos Internacionales, 2008.


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Graph 2. Percentage of Political Representation at the Senate 1982-2006

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120

1982 1985 1988 1991 1994 1997 2000 2003 2006

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The change in the presidency in 2000 was a watershed in the country’s political history. For the first time, the political power was peacefully decided through transparent elections. The opposition won over a party that had been in power for 70 years, and this party accepted its defeat. The electoral reforms that began in 1977 are one of the major reasons for this change.

Graph 3 shows the evolution and plurality of the voting system alter the electoral reforms. The institutional framework and the political agreement created for some 30 years—when the electoral reforms took place—gave Mexico the strength to engage in a peaceful and democratic change of government. This is an unprecedented event in the country’s political history.


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Graph 3. Voting Percentage by Party in Presidential Elections 1952-2006


The reforms and the political method used to create them, had an impact in the country’s stability, but also have allowed Mexico to hold closed and highly competitive elections. That is the case of the presidential elections of 2006 when the difference between candidates was 0.58%.

This political phenomenon has resulted in a new discussion to renew and update the electoral laws that have governed elections since 1996. The reform of 1996 was in force in the legislative elections of 1997 and 2003 and in the presidential elections of 2000 and 2006. Such laws were significantly outdated in the context of a closed electoral process, and it would have been even more significant if the difference in the presidential elections result had been by a wider margin. Because of this, political parties and the government agreed on reviewing and adjusting the laws under the framework of the electoral reform from 2007 and 2008.

VOTING PERCENTAGE


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III. The Electoral Reform in Mexico 2007-2008As we have seen, the electoral reforms have been a response to

the needs in the political context that looked to strengthen institutions and procedures in the country’s electoral organization. The topics in the electoral agenda in the different reforms have evolved, becoming more complex and sophisticated.

Our electoral organization has improved in order to make sure that elections are transparent and clean, where there is no room for fraud, even in elections were the margins are very narrow. The presidential election of 2006 was a test to the institutional apparatus that we had built in the previous 30 years. Our system was shaken but did not break. It could ensure the political stability of our democracy even under extreme competition and close results.

After the elections of July 2006, politicians decided to undertake the seventh electoral reform. It followed almost the same model than the previous elections. There were changes to the Political Constitution and deep changes in the laws (Code of Electoral Institutions and Procedures, COFIPE).

The recent reform is very complex and detailed; nevertheless, we can point out four key issues:

1. Organization and functioning of political parties:

– Effort to be gender-balanced in management positions and nomination of candidates. The quota went from 30% to 40% for women.

– Obligations regarding transparency. The public is granted access to the financial information of political parties for the last five years and in any of its institutions.

2. Financing and auditing of political parties, campaigns and pre-campaigns.

– Reduction of public financing. Now, it is estimated according to the number of people in the electoral roll by 75% of the minimum wage defined in the capital city, and not by the number of parties legally registered.


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– Strengthening of the auditing process. IFE, the institution in charge of auditing the resources for the political parties, will have no limitations in performing its duties concerning banking, tax or trust fund secrecy. Besides, there is a lot of attention given to reports and transparency in dealing with party’s resources.

3. Rules for electoral competition and equity.

– Regulation of pre-campaigns within or among the parties concerning internal procedures for the selection of candidates to be elected by the citizens. They cannot take longer than 60 days, and in the case of elections of representatives, 40 days.

– Reduction of the time granted for campaigns. For general elections, it would be 90 days (before it took as long as 160). For elections only of deputies, campaigns can take 60 days.

– It is forbidden to hire or acquire advertising spots on the radio and television to broadcast electoral propaganda.

– Governmental propaganda is suspended during the campaign.

4. IFE’s organization and duties.

– It is the only authority to manage the time granted to the State radio and television for electoral purposes.

– It also manages and allocates time to local elections and the time required by electoral authorities from the country’s 32 federate entities.

– It could potentially participate in the organization or coordination of elections for the country’s 32 federate entities and the more than 2400 municipalities. This will be performed as requested by the parties.

– IFE’s sanctioning power is expanded. The law now specifies and increases the number of people liable for


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infractions against electoral regulations; that is, it is applied not only to parties and candidates, but also to aspiring candidates, pre-candidates, citizens and any other natural or moral person, authorities or public servants and concession holders for radio and television. Likewise, the law gives a list of the type of infringements each of those can incur in and the type of sanctions to be applied in each case.

IV. Final considerationsElectoral reforms in Mexico have played a transforming role in

the political system of the country. They have radically changed the access to any public servant position. Now, any person in any type of government position is elected in free and transparent processes where citizens choose their preferred candidate and party.

Elections in Mexico have played a citizenship role in our society, and it has made it harder for violence to emerge. Elections are a collective bet to rescue the individual right to participate in defining the future of our collectivity.

The effort Mexico has made towards democracy has not been easy or lineal, nor has it increased evenly. There have been movements forwards and backwards and strong challenges have been faced, like the one we have now concerning the last approved reform. We no longer discuss electoral fraud, clean elections or the use of technology. Today we focus on the transparency of the money used in politics and in the fair use of media. There are three values that are at the core of the design of the current reform: consensus, the improvement of equity in the political process and, above all, the improvement of civility.

From a wide perspective on power, the electoral issue does not solve all the problems faced by democracy. Democratic elections solve a central problem concerning power: who should govern. The legitimacy basis of a government lies in the free access to suffrage and in an unbiased process. Frequently, we want the electoral process


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to solve the problems faced by democratic governance and by democracy in general as a way of life. Consequently, there should be limits and scope of elections; they solve the basic legitimacy issue, but the legitimacy in governing is an issue for the government, through its democratically-elected representatives.

The electoral reform is intended to update the mechanisms, procedures and rules of the political game to renew the original legitimacy and the electoral law. Likewise, it is an ongoing process that evaluates the electoral infrastructure and the conditions of electoral competition, taking into account the social context and the correlation of the political parties.

BibliographyAguilar Camín, Héctor. México: La ceniza and la semilla. Cal and

Arena, Mexico, 2000.

Becerra, Ricardo; Salazar, Pedro and Woldenberg José. La mecánica del cambio político en México: Elecciones, partidos and reformas. Cal and Arena, Mexico, 2000.

Huntington, Samuel. La Tercera Ola. La democratización a finales siglo XX. Paidós, Argentina, 1991.

Lujambio, Alonso. El poder compartido. Un ensayo sobre la democratización mexicana. Océano, Mexico, 2000.

Montero, Gibbran and Mendoza, Minerva. Tesis: Evolución and retos de la observación electoral internacional. El caso de México y el proceso electoral federal 2006. UNAM and FCPyS, Mexico, 2008.

Reynolds, Andrew et al. “Los sistemas electorales de 213 países independientes and territorios asociados”. En: Diseño de sistemas electorales: el nuevo manual de IDEA Internacional. Instituto Federal Electoral, Institute for Democracy and Electoral Assistance and Tribunal Electoral del Poder Judicial de la Federación, Sweden, 2006.


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Electoral Reform in PanamaHarry Brown Araúz*

IntroductionIn a learned society, it is well known that the Duverger’s Law asserts

that the electoral system mechanically influences a party system. The broadening in scope goes hand in hand with the simplicity of the law: “The simple majority single ballot system favors a two-party system (Duverger, 1976).” Accordingly, proportional representation leads to a multi-party system.

To address and understand the electoral reform in Panama, logic has to be opposite to Duverger’s. That is to say, characteristics of the party system prior to the electoral system design have a major influence on characteristics of the latter. The underlying premise of this approach, in the words of Colomer (2005), is both simple and convincing: “The large will prefer the small and the small will prefer the large.” By knowing that small electoral districts and parliaments favor majority political parties, it follows that these characteristics will be favored when agreeing on or setting rules to govern elections.

There is another premise accounting for progress, stagnation and change in electoral laws. Radical reforms are normally due to crisis in the representation system or to majority political parties’ actual possibilities of losing control (García Díez, 2001). In other words, reform is to be implemented by whoever can do so. It is not intended to have several winners but to share a possible defeat. In the case of Panama, it is clear that the development and subsequent stagnation of reform processes are linked to the presence of favorable majority political parties barely interested in changing the rules of the game,

* PhD in Political Science and Sociology at the Universidad Complutense de Madrid. Governance Advisor, United Nations Development Programme (UNDP) in Panama. Author of numerous articles addressing elections and political parties in Panama.


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but aimed at adjusting them even more so they can consolidate or strengthen their supremacy.

I. Political ContextFollowing the American invasion on December 1990, Panama

established their existing democratic regime. However, the significance of this event did not give rise to new political parties leading the process of transition and consolidation of democracy. Except for the first four years following the establishment of such regime –when the Christian Democratic Party (PDC) had absolute majority in the Legislative Assembly, during the 90’s both the Democratic Revolutionary Party (PRD) and the Arnulfista Party (PA) were leading the party system and rotating in the executive branch. As a matter of fact, these two parties were leading the alliance system in the second half of the 80’s –being the PRD a military authoritarian regime and the PA, their main opponent.

The basic characteristics of the electoral system in Panama are embodied in the Constitution of the Republic since 1983 and agreed by the authoritarian regime and the then opposition. The most complex aspect is the structure of electoral districts, although the provisions set forth leave enough scope for action to considerably modify the system, starting from the Code of Elections1. It was until the 2006 Reform, a one-round simultaneous presidential election system along with legislative elections; twenty-seven single-member and fourteen multi-member electoral districts for legislators. Of these electoral districts, thirty-nine were small and two were medium-sized: a Hare electoral formula allocating the remaining seats to candidates with the most votes (usually from quotient-winning political parties) and semi-blocked ballots. This is a de facto electoral system with all electoral districts as if they were single-member and a very marked majority bias favoring major political parties and imposing harsh penalties on minor parties (Brown Araúz, 2007, 91 p.). Tables 1, 2 and 3 show the lack of proportionality compared with the

1 There are three ways of making constitutional changes in Panama: by establishing a constituent assembly, by referendum and by approving two consecutive National Assemblies in different periods.


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electoral system in Panama, rate of advantage granted by the system and a decrease in the Effective Number of Parties (ENP).

Table 1. Proportionality of electoral systems in Panama, Costa Rica and Guatemala

COUNTRY PROPORTIONALITYPanama (2004) 4.97Costa Rica (2002) 2.01Guatemala (2003) 2.24

Source: Brown Araúz (2007).

Table 2. Rate of advantage obtained from Panamanian political parties during legislative elections in 1994,

1999 y 2004 (%)*.

PARTYRATE OF ADVANTAGE

1994 1999 2004PRD 2.6 1.5 1.4PDC** 0.2 0.8 0.2MOLIRENA 0.6 0.6 0.6MORENA 0.2 0.4 ---Papa Egoró Party 0.9 --- ---Arnulfista Party 1.4 1.2 1.1Authentic Liberal Party 0.5 --- ---Solidarity Party 1.0 1.0 0.7Civil Renovation Party 0.5 0.4 ---National Liberal Party --- 0.7 0.7Democratic Change Party --- 0.5 0.5

Source: Brown Araúz (2007).* Including parties with legislative representation only.** In 2003, it changed its name to Popular Party.


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Table 3. Effective number of electoral and legislative parties in Panama

N 1994 1999 2004 AVRG

Presidential NEP 5.55 4.73 3.32 4.53

Legislative NEP 4.33 3.26 2.92 3.50

Source: Brown Araúz (2007).

II. Electoral Reforms in PanamaPanama has conducted four electoral reforms since 1993. In the

words of Magistrate Eduardo Valdés Escoffery (2001), the philosophy of the Electoral Tribunal of Panama (TEP) states that “hot issues have to be discussed with a cool head.” Thus, after every electoral process, the TEP calls for and sets up an Electoral Reform Commission to agree on amendments to the Code of Elections to be proposed to the National Assembly of Legislators.

The Electoral Reform Commission is made up of one representative of the Executive Branch, one representative of the Judicial Branch, one representative of the Legislative Branch, and one representative of the Electoral Supervision Office. It also includes one representative for each legally incorporated political party –each one with the right to vote. Until 2002, civil society’s participation had been manifested as freedom of speech only, being the right to vote granted, for the first time in 2005, to their two representatives (one representing academic institutions and the other representing non-governmental organizations). This Commission is chaired by TEP magistrates.

A. The 1993 Reform The 1993 Reform took place in a politically fluid time. Neither

the ruling party nor the main opposition party had majority in the Legislative Assembly2. The new Code of Elections would govern the

2 From 1990 to 1994, the PDC obtained the legislative majority. This political party was allied to the Government, but they were expelled in 1991. Despite having much


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first free and competitive elections in this country for a long time –elections that eventually consolidated democracy. Enthusiasm, normally associated with new beginnings, led to the registration of 22 political parties and seven presidential candidates. Some of the most important reforms included the following:

A.1.SingleBallotPaperThis has been one of the most important reforms. In the past,

it used to be a single ballot paper for each political party –leading to irregularities such as missing opposition ballots. This reform included using a single ballot paper for each type of election showing all candidates for all political parties.

The parties initially opposed to this reform, but it was eventually passed thanks to the leadership of the Electoral Court –taking a major step into reliability of elections in Panama.

A.2.ProportionalRepresentationFormulaThe electoral formula to turn votes casted in electoral districts into

seats was also one of the basic modifications to the system. The Hare quota was still used, and political parties obtaining a quotient did not participate in average quotient distribution –promoting and favouring medium-size political parties. Nevertheless, the most important decision was granting the remaining seats to individuals and not to parties; that is, allowing the possibility to grant alternative vote. This meant returning to the formula used in Panama between 1958 and 1968 –favoring majority parties, fostering partiality, weakening party discipline and hindering new collective and ideological identities of political parties3.

A.3.DecisionsonElectoralCorporationsIt was resolved that only TEP officers had the right to vote in

polling stations. Accordingly, they put a stop on candidates with the

fewer legislators, the PRD was considered the main opposition to the Panameñista Party due to the historical rivalry between them.

3 For more information on the effects of the electoral system in Panama –particularly on this electoral formula, see Brown Araúz (2007).


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most members of the jury in the polling stations to make decisions or on setting up a temporary majority to legalize arrangements threatening democracy and favoring particular interests.

A.4.PoliceForceTransferImitating the rule in Costa Rica, from six days before the election

to the announcement of the new President, the Police are to be under TEP mandate. This measure was adopted to prevent police officers from being manipulated by the ruling government.

B. The 1997 Reform Electoral reforms passed in 1997 were discussed, among others,

with 12 legally incorporated political parties. 5.6 out of the 12 were considered important according to estimates of the effective number of presidential parties (Brown Araúz, 2007). A PRD member was holding the Presidency of the Republic. In the Legislative Assembly, the PRD had 49.3% of the overall seats and obtained a constant and absolute majority by forming an alliance with the Solidarity Party. The most important reforms of that year included the following:

B.1.ElectionBudgetIt was resolved to allocate public money to political parties

and independent candidates. The rule was to allocate 1% of current income from the Central Government –being 15,349,000 dollars in 1999, more than 19 million dollars in 2004, and a projection of more than 42 million dollars for 2009. Prior to the elections, 40% of this amount is spent in equal shares for conventions, internal elections (10%) and advertising in elections (30%). The remaining 60% is paid in five annual payments and the amount is proportionally distributed based on the number of votes obtained in the elections. These amounts must be used to ensure the physical presence of the political party all over the country. 25% must be used for political training of party members. 10% of this amount must be used to train female members of political parties.


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B.2.PersonalDeputyMembersIn the past, deputy legislators used to be voted upon regardless

of the permanent legislators. Therefore, it came naturally for a legislator in the Assembly to be elected together with his main internal opposition –leading to a potentially complicated relationship between the two. Having personal deputy members –with election results inevitably linked to the main candidate’s, this friction between parties disappeared, favoring to a certain extent political parties and especially the functioning of the Legislative Assembly. In addition, this rule did not carry to the extreme partiality and internal competition among parties brought about when adopting the alternative vote in 1993.

B.3.MandatoryPresidentialPrimaryElectionsBefore adopting this rule, presidential candidates were internally

chosen through an indirect process: National Conventions. Although democratic, this type of election provided more room for party leaders to manipulate the election of candidates. Primary elections strengthened internal democracy and provided for more movement of internal elites. Only the party nominating one of their members for president was entitled to run for primary elections, whereas allied parties could only confirm their candidate in a convention. Similarly, candidates for vice-presidents should be confirmed by the Convention of the party nominating one of their members for president. The remaining government offices submitted to popular vote would not be chosen of necessity in primary elections, Still, political parties would be allowed to apply this procedure.

B.4.IncreasingPercentageofFollowersNeededtoLegalizePoliticalParties

In the past, the percentage of followers needed to register a political party was 3% of the electoral roll. This percentage increased to 5% in a developing electoral roll. Clearly, dissatisfied with favorable mechanical effects, majority political parties looked for other political-administrative ways to secure their position in the party system.


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B.5.FemaleParticipationShareFor the first time in the electoral legislation of Panama, a

minimum representation of women in internal elections and national electoral rolls by political parties was established. The share was 30%. However, the rule was completely neutral or, at best, flawed by stating that in cases where such share is not met, the party might include other members to complete the electoral roll.

B.6.ElectionAdvertisingandOpinionPollRegulationFor the first time, penalties and restrictions in this matter were

regulated based on protection to the environment, no anonymity and respect to the morality and dignity of people. In addition, to avoid manipulating electoral will of citizens, standard technical requirements for companies in charge of conducting and publishing electoral opinion polls in the country were established. Besides, publication of opinion poll results ten days before the elections was prohibited.

C. The 2002 ReformA total of eight political parties (the effective number of parties

was 4.73) had a discussion at the Electoral Reform Commission and –through TEP– proposed amendments to the Code of Elections before the Legislative Assembly controlled by the opposition.

C.1.ElectoralFormulainMulti-memberElectoralDistrictsIn order to tackle the enormous lack of proportionality in the

electoral system in Panama, each political party was allocated a maximum of 50 % of seats. This measure was also intended to foster electoral alliances, especially in legislative elections. Although the difference between obtaining one or no legislator at all could mean everything for small political parties, this rule had no impact on the proportionality of the system.


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C.2.PercentagetoMakeorBreakPoliticalPartiesIn order to promote registration of new political parties and

guarantee their existence, the number of followers and votes needed was reduced from 5% to 4% in both cases. Minimum reduction and increasing voters aside, the absolute number needed did not drop considerably. As will be shown below, lack of proportion and political parties –especially alternative parties– and extinction of parties required structural changes rather than cosmetic changes.

C.3.DisclosureofSourceofFundsofPoliticalPartiesAs to one of the most sensitive issues of public interest related

to elections, the Electoral Reform Commission resolved by majority vote –as approved by the Legislative Assembly– that the information on the source of funds of political parties be disclosed, handled and used in confidentiality by the TEP with the sole purpose of securing that no law was being violated.

C.4.OptionalPrimaryElectionsThe Electoral Reform Commission approved to keep primary

elections for presidential candidates as compulsory and legislative elections as optional. Nevertheless, the Legislative Assembly provided that primary elections be optional. Having the vote of legislators from the main opposition party in the Legislative Assembly made it possible for the PRD to pass this rule. Still, this party continued running primary elections for each of their candidates.

D. The 2006 ReformIn comparison to 2002, the number of political parties remained

the same, but the effective number of parties was reduced even more to 3.32. This was the first Electoral Reform Commission where members of the civil society had the right to vote. One of their representatives came from academic institutions whereas the other, from human right organizations, unions, corporations and lawyer’s offices.


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D.1.ChangeinElectoralDistrictsIn view of the amendment to the Constitution on November 2004

–reducing and establishing the number of legislators to the National Assembly to 71, a reform was passed, resulting in slight changes to the structure of some electoral districts. The provinces of Chiriquí, Veraguas and Los Santos as well as district 8.1 in Western Panama each had one legislator left out. Other three legislators were left out from the Capital City of Panama.

D.2.MandatoryPresidentialPrimaryElectionsPanama returned to the 1997 rule providing for compulsory

primary elections for political parties nominating a member for President of the Republic. There was room for primary elections “between parties,” that is, primary elections where different parties elected one presidential candidate to represent them all. Primary elections for other public offices remained optional.

D.3.RulesofRevocationofMandateRevocation of mandate is set forth in the Constitution and in the

rules of some political parties. The new Code of Elections gives a full description on the grounds for revocation of mandate to individuals elected by popular vote. Similarly, it provides that for individuals elected as “independent” candidates, it requires 30% of voters of the electoral district to request a revocation and at least 50% of votes.

D.4.IndependentNominationforLegislatorThis offered the possibility to have candidates running for

legislators outside political parties. In order to run for such office, they were required to collect signatures from 4% of voters of the corresponding electoral district. These candidates should not have been registered in any political party. If we take into account that the registration books are permanent and that the time for these registrations is very short, nominating candidates outside political parties becomes difficult.


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D.5.ChangetotheElectoralFormulaandControlofPrivateFinancing

These two major reforms were passed in the Electoral Reform Commission but not in the National Assembly of Legislators. The electoral formula would allocate the remaining seats to parties obtaining a quotient or half a quotient only –blocking more opportunities for small political parties. On the other hand, the Commission worked on a formula to calculate and set a spending limit on political campaigns –considerably high– for every public office and required to disclose the source of their funds.

III. Some Thoughts on Electoral Reforms in PanamaAs shown above, Panama has managed to consolidate a permanent

and effective mechanism to reform the electoral legislation. The fact that the political system did not come to a crisis to introduce reforms to electoral rules turned out positive. What is more, it is fair to say that the basic characteristics of the electoral system in Panama have provided political stability or governability at the expense of a small representation of the political system (Brown Araúz, 2005b). Therefore, the challenge for the next electoral reform in Panama is, then, to increase system representation without putting governability at risk.

Although less clearly, what has been said so far about electoral reforms in Panama shows that more and more innovations may have addressed secondary aspects of the electoral system and that in some cases, they are going on about the same thing. In 1993, two basic issues for any electoral system were addressed: the use of a single ballot and the allocation of remaining seats to candidates with the most votes. In 1997, another change to the ballot paper improved the one in 1993. It was also resolved to grant public money for the operation of political parties, to make primary elections compulsory and to draft a law of quotas for women’s participation. These 1997 reforms were important in that they mirrored Panama’s real intention


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to consolidate democracy. Still, it is worth remembering that these were secondary elements of an electoral system4.

From 2002 onwards, measures became a little more risky: no more than 50% legislators for a party in a given electoral district (Panama would require over 90% of small electoral districts –proving the futility of this measure) and campaign funds would be revealed to the TEP. In 2006, primary elections became compulsory again, and provisions to run for legislator outside political parties were set forth.

It is clear that the basic aspects of the system –electoral formula to choose presidents and legislators; size and extent of electoral districts; electoral rolls and legal barriers– have not really changed. It is not about making deep reforms necessarily; it is well known that every socio-political actor appreciates this need based on the rank held in the political system, but it is a fact that major changes have not been made.

It is precisely the future and value of the electoral reforms in Panama what would be influenced by the expectations and technical management of socio-political actors on this matter. Disagreement between these two can lead to promoting dubious or even contradictory reforms. Insisting on reducing or setting the size of the National Assembly of Legislators and, at the same time without even considering a correlation, and expecting for the electoral system to be more proportional serve as good examples. Taking advantage of opportunities for reform and establishing a regime to obtain true political representation would only be possible if real political interests on elections are accompanied by notions of constitutional engineering.

Although this is undoubtedly relevant, the most important variable to be considered in order to catch a glimpse of the future of electoral reforms in Panama is the development of the political system. The party system in Panama has been continuously changing,

4 Most academicians in the world agree that the main aspects of any electoral system are: an electoral formula to turn votes into seats, the size and extent of electoral districts, layout of ballot papers and election threshold.


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from a trouble-free situation, going through a moderate multi-party system, to being close to a two-party system (Brown Araúz, 2007). Nevertheless, the potential deviation in 2004 (Brown Araúz, 2005a) resulting in the Panameñista Party –the second most important political party in the country–losing presidential elections and the PRD gaining considerable support at least opened the possibility to speculate on whether Panama is heading towards a predominant party system without even going through a two-party system.

Without going that far –that is, simply speculation but based on trends according to electoral data, the majority party’s expectations to gain wide support from voters and to obtain at least the biggest minority in the National Assembly nearly reduce short-term possibilities for basic reforms in Panama for good. As a matter of fact, electoral rules are changed by whoever has the power to do so, as long as they are no longer suitable.

BibliographyBrown Araúz, Harry. (2005a). “Las elecciones desviadas de Panamá

2004”. In: Nueva Sociedad, num. 195, 4-17 pp.

__________________ (2005b). “Elementos para un marco estratégico de reformas electorales en Panamá”. In: Revista Mexicana de Estudios Electorales, num. 5, 155-194 pp.

___________________ (2007). Partidos políticos y elecciones en Panamá: un enfoque institucionalista. Panama City. Fundación Friedrich Ebert.

Colomer, Josep (2005). “It’s parties that choose electoral Systems (or, Duverger laws upside down)”. En: Political Studies, num. 53, 1-21 pp.

Duverger, Maurice (1976). Los Partidos políticos. Mexico City. Fondo de Cultura Económica.


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García Díez, Fátima (2001). “The emergence of electoral reforms in contemporary Latin America”. Working Paper, num. 191, Barcelona, ICPS.

Valdés Escoffery, Eduardo (2001). Antecedentes históricos del proceso de reforma electoral en Panamá (1990-2000). Panama City, Electoral Tribunal.


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Electoral Reform in PeruFernando Tuesta Soldevilla*

I. Political ContextFor the last 25 years, Peru has gone through three major

political/electoral reforms transforming the institutional framework. These reforms have been mainly embodied in the 1979 and 1993 Constitutions and their corresponding constitutional laws. The first reform took place in a context of transition to democracy (1968-1980), the second reform, under Fujimori’s authoritarian regime (1992-2000) and the third reform, following Fujimori’s fall and transition to democracy (2000-2001).

The first major reform embodied in the 1979 Constitution was the result of a Constituent Assembly as part of the Civility Transition Plan proposed by the army. Such controlled transition was, however, characterized by including previously excluded political parties in the midst of State centralization structure. Although a large part of the constitutional text was approved by a wide majority, this found support in the agreement between the Partido Aprista and the Partido Popular Cristiano, faced with the opposition of several left-wing parties. For the first time, the constitutional text included political parties as channels of political participation.

Economic crisis, acts of terrorism led by Sendero Luminoso and the rapid growth of drug trafficking together with failed governments created the conditions for the collapse of the party system and Alberto Fujimori’s rise to power, leading a coup d’état on April 5, 1992.

The authoritarian regimen developed neoliberal economic reforms that managed to stabilize the economy and subsequently build a centralization structure in the market. This economic reform took place along with a political reform embodied in the 1993

* Political Scientist, Director of the Institute of Public Opinion, Pontifical Catholic University of Peru (PUCP, in Spanish)


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Constitution and started in a Constituent Congress, where different political parties (APRA, AP and IU) were absent. This Constitution was imposed by the Fujimori’s regime in the context of a weak opposition and a majority public opinion favoring a president whose government had caught Abimael Guzmán and defeated Sendero Luminoso. Presidential re-election and single-chamber government were the most remarkable political/electoral reforms.

Finally, following Fujimori’s fall, several constitutional changes were made, including abolition of immediate presidential re-elections. In addition, a single electoral district was replaced by departmental electoral districts. The first law on political parties was subsequently enacted.

Consequently, it is impossible not to look at reforms without considering the type of regime developing and implementing it. It is precisely this confusion what led to think of a return to the 1979 Constitution following the fall of Fujimori’s regime, as the existing constitution was born under this political regime attached to the reform. This paper will be an attempt to describe this path as precisely as possible.

II. Electoral SystemThe electoral system in Peru has been based on a series of

reforms lacking clear means and objectives. Although any electoral system is required to meet criteria allowing for governability and representation, Peru favored the latter only, disregarding the former. For a better understanding, let us take a look at the Peruvian electoral system.

A. System of Presidential ElectionsAny political presidential system has two interrelated electoral

systems (presidential and parliamentary). In Peru, since 1931, presidential and parliamentary elections have been both conducted the same day. Given that the Parliament is elected in whole (120) and


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not in part, there is a higher presence of simultaneous elections. This contributes to the creation of majorities in presidential elections due to the effects of the white vote with an impact on the presidential vote over the parliamentary vote. Thus, 1995 elections had a major impact in that immediate presidential re-elections were established. The governing party, Cambio 90/Nueva Mayoría, strongly built around the figure of President Fujimori, benefited from this rule, obtaining an absolute majority in the Congress.

In addition, presidential elections have more impact than parliamentary elections when the former are conducted under a single electoral district, as in 1995 and 2000. The national parliamentary list is dragged by presidential voting –lacking brakes applied when the country is distributed into several electoral districts. Single electoral district, implemented under Fujimori’s regime, caused parliamentary elections to turn into presidential elections. Following Fujimori’s fall, electoral districts were changed from national or single districts to departmental districts.

Still, although simultaneous elections gave rise to the floating vote, they also created the conditions for party factionalism, provided that the voter was unaware of the presidential results. Accordingly, vote for parties unlikely to win increased.

In the case of candidates, the format is a small closed and blocked list including one candidate for president and two for vice-president1. Voters vote on the list, but they cannot elect one or more candidates independently, as in the legislation of Peru until 1962.

In general, the presidential term of office and re-election are correlated, for they address the time a president holds office. In Peru, the term of office was changed from six to five years by the 1979 Constitution. Therefore, after 1980, governments had a five-year term.

Nowadays in Peru, re-election is not immediate but every two terms. Nevertheless, following Fujimori’s self-coup in 1992, the 1993 Constitution changed these historical provisions to allow for immediate presidential re-elections, making possible to have –as it

1 In Peru, this type of list is known as Plancha Presidencial (Presidential Ballot).


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actually happened– one of the longest presidential terms of office in history2. The major effect resulted in less equality in electoral competition –or even fraud– as in1995 and 2000. It is difficult for a challenging candidate to win a president-candidate. In Peru, two supporting elements come together in the non re-election tradition: a strong presidential rule stressing the need to be in the power for the longest term possible and fraudulent electoral processes.

Re-election was a mechanism used by Alberto Fujimori’s authoritarian government to stay in the power. That required not only imposing “the rules of the game” but developing semi-competitive elections and compromising institutions to allow electoral fraud in 2000 and attempt a third term of office that lasted less than four months and ended in Fujimori flying to Japan on November that same year. One of the first regulatory changes made in the transition to democracy was, as a matter of fact, to ban immediate presidential elections again (Article 1, Law 27365, November 5, 2000).

Most countries elect their president under the principle of majority rule. This varies, however, among countries requiring relative or absolute majority. Ecuador was the first country in Latin America to introduce absolute majority on the two-round system or second ballot. Peru adopted this stance by demanding –started in the 1979 Constitution and reaffirmed in the 1993 Constitution–absolute majority. The two-round system was a mechanism providing that if no candidate obtained a certain percentage of votes (generally, but not always, absolute majority), the two candidates with the most votes were nominated again on a second round.

From the eighties to now, this system has been applied to nearly all Latin American counties. This method has become very popular, but it is different from the European model in that the former deals with presidential systems –being the second ballot applied to presidential elections only and not to parliamentary elections. The

2 Augusto B. Leguía is the president who has held the office the longest: eleven years (1919-1930). The second president was Alberto Fujimori (1990-2000). The first one ended his term of office after a coup d’état, and the second one fled from the country.


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primary purpose in the region is to provide presidential elections with unquestionable majority support.

Post-military Peru has gone through six presidential elections each with a different experience on second rounds. In 1980, the rule was not applied by agreement set forth in the 1979 Constitution. There were no second rounds in the 1985, 1995 and 2000 elections. In 1985, Alfonso Barrantes, candidate for Izquierda Unida (United Left party) withdrew, and Alan García won. In 1995, Fujimori won with over half the votes, and in 2000, he won again. In the three cases where the two-round system was actually implemented –Mario Vargas Llosa lost to Alberto Fujimori in 1990, Alan García lost to Alejandro Toledo in 2001, and Ollanta Humala lost to the same Alan García five years later –elected governors lacked parliamentary majority.

Consequently, the presidential electoral system went for higher legitimacy (representation) relying on the second ballot. Nevertheless, such system is not applied to parliamentary elections, which are conducted on the same date as the first round of elections –encouraging factionalism and opening the possibility for a complex relationship between the executive and legislative branches.

B. System of Parliamentary ElectionsThe 1993 Constitution accounted for a considerable change

to parliamentary representation. Thus, starting in July 1995, the Congress became unicameral, made up of 120 parliament members elected in a single electoral district. It changed from a 240-member congress3 (180 deputies and 60 senators) to a 120-member congress, regardless any consideration of representation, to an extent that the size of the current congress is only comparable to the one in other small countries around the world (Gabon, Israel, Macedonia and Senegal)4.

3 As set forth in Article 164 in the 1979 Constitution

4 Gabon has a population of around 1.2 million; Israel, 5.5 million; Senegal, over 8 million; and Macedonia, 2.1 million. The total population of all these countries is lower than Peru’s (around 25 million inhabitants).


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In 1980, one Member of Parliament represented 26,963 voters. Ten years later, in 1990, the ratio increased to one Member of Parliament for every 41,718 voters due to an increase in the number of people and members of parliament alike. However, in 1995, thanks to the changes under the 1993 Constitution, this ratio increased dramatically to one Member of Parliament for every 102,537 voters. Nowadays, this ratio is around 137,000 voters. This was due not only to an increase in the number of people but mainly to a decrease in the number of Members of Parliament. Ironically, Peru’s size of parliament is comparable to the one in 1857.

Discussion at the Democratic Constitutional Congress (CCD, in Spanish) –established after the 1992 coup d’état– on the electoral system is clear evidence of an attempt to change the rules of the electoral game without the cooperation of comparative electoral systems. Effects of the previous electoral system –especially the structure of its electoral system, were not diagnosed. Finally, the CCD resolved to penalize the single electoral district5.

It is well known that the larger the electoral district, the higher the proportionality. Such a large electoral district allowed for many political parties to be in the Congress –thus creating a serious problem for representation and political dialogue. In other words, the political effect —and the cost to a certain extent— was factionalism of party representation for that very reason, as this was not prevented by a minimum legal barrier.

Following the fall of the authoritarian regime led by Alberto Fujimori, a series of agreements were faced with the National Congress’ changes to the Constitutional Law of Elections6. One of

5 Eight countries in the world: Israel, Bulgaria, Slovakia, Guyana, Liberia, Moldova, Namibia and Sierra Leone. Their difference lies in the small population size. Except for Guyana, Liberia and Namibia (Parliamentary Union 1992:16), the remaining countries introduced a minimum legal barrier to allocate seats. In Peru, this barrier was applied until the 2006 elections.

6 Law 27387 on December 29, 2000, amended Article 21 of Law 26859, Constitutional Law of Elections: “Members of the Congress are elected by direct secret ballot, and “Article 21.- Members of the Congress are elected by direct, secret and compulsory voting. The election of Members of the Congress referred to in Article 90 of the Political Constitution of Peru is conducted through the


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these changes included leaving single electoral district behind to implement departmental multi-member electoral districts. Apparently, they were returning to the pre-Fujimori seat allocation, but they were not. A single chamber and the number of congress people remained the same: 120, because changes of this type would have deserved constitutional reforms that neither time nor existing circumstances allowed to happen. It was only three years later, on the 2006 general election, when a 5% threshold of representation nationwide7 was introduced.

In Peru, the highest averages method or D’Hondt method has been applied since 1963 as the seat allocation method. It is commonly used in different countries due to its simplicity. All seats are allocated in a single operation. Furthermore, it has the peculiarity of rewarding the first majority in the party. Peruvian parliaments until 1992 were established using this formula but under multi-member electoral districts. A single electoral district system was applied from 1992 to 2000, and then multi-member electoral district system was applied since the 2001 elections.

Elections in Peru had been conducted by a closed and blocked list until 1980. This meant that any political party nominated their candidates in an orderly fixed arrangement. Nevertheless, the 1978 constituent elections used a closed but not blocked list of candidates through single compulsory voting. Since 1985, this closed but not blocked list mode was used along with the double and optional

Multiple Electoral District system, applying the highest averages method with double optional alternative vote, except for electoral districts where less than two Members of the Congress are elected, in which case there is only one optional alternative vote.

For the purposes of the foregoing paragraph, the territory of Peru is divided into twenty-five electoral districts –one for each department and the Constitutional Province of Callao. Voters living abroad are included in the Electoral District of Lima.

The National Jury of Elections allocates one seat to each Electoral District –thus assigning the remaining seats in proportion to the number of voters in each district.”

7 A temporary provision allowed 4% application nationwide for the 2006 elections only.


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alternative vote. Under the single-chamber system, the list of candidates remained unchanged.

The alternative vote has had serious and decisive consequences on the formation of Parliament, where around one third of the composition is due to this mechanism. Although the alternative vote gave rise to a large contingent of candidates –developing a fierce competition within political parties under a centripetal force that benefited the creation of independent lists, especially since 1990, it resulted in a lack of parliamentary cohesion and faithless electors. In other words, this system undermined organized parties and favored party indiscipline and factionalism.

C. Direct Democracy Institutions The regulatory framework for direct democracy institutions in

Peru is embodied in the 1993 Constitution,8 establishing the right of citizens to participate in public affairs through referendum; legislative initiative; removal or revocation of authority; and demand for rendering of accounts –thus creating mechanisms for citizens to participate in these activities.

Fujimori’s anti-political speech contained, clearly, harsh criticism of political parties. Along these lines, in order to have a direct relationship between the governors and the governed, parties’ monopolist role in political participation was removed.

The most frequently used mechanism has been revocation of local authority and, since 2002, of regional authority. From 1997 to now, five (5) electoral processes of revocation of municipal authority have been called for, organized and conducted –each with a different result. It has been a disappointing experience, though. Only small electoral districts, mostly rural and poor, have met the requirements.

8 Articles 2 subparragraph 17) and 31 of the 1979 Constitution


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D. Reforms of Electoral InstitutionsThroughout the history of Republican Peru, the design and

conception of electoral organization and justice have been evolving. In the early Republic, electoral processes were organized in a decentralized manner, in charge of the electoral boards of provinces and the most represented assembiles. This role was just centralized in the National Electoral Board at the turn of the 19th century (1896) and, later, in 1931, with the creation of the National Jury of Elections.

Between 1931 and 1995, the institutional design involved administrative, jurisdictional and registration responsibilities in a single electoral institution in charge of the process. It is the current constitution passed in 1993 the body that modifies this design and creates three electoral institutions for the above responsibilities. This modification –misinterpreted as will be argued below– has had and still has different consequences on the development of electoral processes.

The 1993 Constitution introduced changes in respect to the institutional design of electoral institutions. Although this means a significant change and improvement in the subject, the model designed is far from being appropriate9. The National Jury of Elections (JNE, in Spanish) is responsible for delivering electoral justice, but it also has administrative electoral duties (registration of candidates, electoral education, etc.). On the other hand, the National Office of Electoral Processes (ONPE, in Spanish) is responsible for planning, organizing and implementing electoral processes, while the National Registry of Identification and Marital Status (RENIEC) is in charge of preparing the electoral register. These three institutions are autonomous,10 acting as such.

9 In Tuesta, 1996, it has been observed that the term Electoral System has been misused in Peru. The most flagrant–and recurring system in electoral laws – is the one embodied in the 1993 Constitution. Chapter XIII titled Electoral System refers to organizational structure and responsibilities of electoral institutions, when in fact Electoral System means a set of methods turning votes into seats. This is clear evidence that of serious lack of knowledge of the electoral system.

10 As autonomous institutions, they perform their functions by virtue of the areas of competence granted by the Constitution and/or by law –disregarding any and all orders from high authorities.


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This design has serious limitations and failures due to inappropriate sphere of duties assigned to the ONPE and JNE. The constitutional rule erroneously delegates administrative responsibilities to the institution in charge of delivering electoral justice (JNE). There are also inaccuracies, gaps, and duplicity of roles and delegation of responsibilities outside the scope of the electoral institutions. Under this framework, constitutional laws of electoral institutions and rules governing the different electoral processes had the same effect –causing, more than once, the development and implementation of an electoral process to be permanently threatened and hindered by the very electoral institutions.

Administrative and jurisdictional responsibilities must be performed by different autonomous and independent institutions to ensure that whoever organizes and implements electoral activities is not the one who should later resolve objections subject to review. One cannot be both judge and jury. This is what is happening to the current design. Performing administrative services is within the authority of the National Office of Electoral Processes (ONPE), while delivering electoral justice, within the authority of the National Jury of Elections (JNE).

III. Final ReviewAt the first Congress following Fujimori’s fall, the issue of reform

was raised again and again –being adopted by nearly all political forces. As a result –after almost two years de discussion– the law of political parties was enacted. This is the first regulatory framework to report in detail topics related to internal democracy, financing of political parties, use of the media as well as a demanding set of requirements to register political organizations.

In addition, a special commission was created to amend the Constitution, chaired by Henry Pease, Congressman of Perú Posible . Although this bill highly improved, the reforming momentum declined. Being close to the 2006 elections was the deterring agent for any reform, except for the introduction of 5% representation


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threshold, due in part to the amount of legally registered political parties.

The second Aprista government, being a minority in the Congress, managed to have power thanks to its party discipline against the other six political parties, which ended up being a dozen parliamentary groups –showing party factionalism as a seemingly chronic disease in Peruvian politics.

In this context, where the Aprista party stopped –in practice– promoting a return to the 1979 Constitution and a splintered opposition aimed at no reforms, key topics ended in some requests and proposals both lacking enough votes to be approved.

Accordingly, reviewing the electoral system, at least on some topics such as alternative vote, second-round system, reform to electoral institutions, especially to the arrangement and size of the Congress, did not obtain the consent of most political parties. It is worth mentioning that although the creation of the Senate and the optional vote were not approved by the Plenary of the Congress, they were indeed part of the discussion agenda.

Thus, the electoral reform is a pending issue in Peru. A splintered inexperienced representation (95 out of 120 Members of the Congress are new) threatens such reform. The possibilities to revert this situation in the next three years left to complete the parliamentary term are low. Obtaining a majority for such sensitive and many times controversial issues requires consent and agreement. Consequently, a number of groups lacking a clear agenda become an obstacle to it.

BibliographyAlcántara, Manuel et al. “La naturaleza de los sistemas de partidos

políticos y su configuración en el marco de los sistemas democráticos en América Latina”. En: Boletín Electoral Latinoamericano XXII. IIDH/CAPEL, San José de Costa Rica, 1999.

Bendel, Petra. “Los partidos políticos: condiciones de inscripción y reconocimiento legal, democracia interna, etcétera”. En: Dieter


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Nohlen, Sonia Picado y Daniel Zovatto (Compiladores). Tratado de Derecho Electoral Comparado de América Latina. IIDH/IFE/TRIFE/Universidad de Heidelberg/Fondo de Cultura Económica, México, 1998.

Casas Zamora, Kevin; Jorge Mario García Laguardia y Daniel Zovatto Garetto. “Dinero, Política y Elecciones”. En: Cuadernos de CAPEL 48. IIDH/CAPEL, San José de Costa Rica, 2003.

Cerdas, Rodolfo. “La crisis de los partidos políticos”. En: Boletín Electoral Latinoamericano X. IIDH/CAPEL, San José de Costa Rica, 1993.

Castillo Freyre Mario. Todos los poderes del Presidente. Fondo Editorial de la Pontificia Universidad Católica del Perú, Lima, 1997.

Del Castillo, Pilar y Daniel Zovatto (editores). La Financiación de la Política en Iberoamérica. IIDH/CAPEL, San José de Costa Rica, 1998.

Del Castillo, Pilar. La Financiación de Partidos y Candidatos en las Democracias Occidentales. Centro de Investigaciones Sociológicas/Siglo XXI, Madrid, 1985.

Eguiguren Praeli, Francisco. “Las relaciones entre gobierno y parlamento: elementos para una propuesta de reforma en el Perú”. En: Lecturas Constitucionales Andinas 2: Formas de Gobierno: Relaciones Ejecutivo- Parlamento. Comisión Andina de Juristas, Lima, 1993.

Ferreira Rubio, Delia. “La rendición de las cuentas partidarias”. En: Elecciones año 4, No.5. ONPE, Lima, 2005.

Ferreira Rubio, Delia: “Los sistemas de financiamiento y su relación con la democratización y modernización de los partidos políticos”. En: Boletín Electoral Latinoamericano XIX. IIHD/CAPEL, San José de Costa Rica, 1998.

Guzmán Napurí, Christian. Las relaciones de Gobierno entre el Poder Ejecutivo y el Parlamento. Fondo Editorial de la Pontificia Universidad Católica del Perú, Lima, 2003.


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Mainwaring, Scott y Timothy Scully. El sistema de partidos en América Latina. La construcción de instituciones democráticas. Cieplan, Santiago de Chile, 1996.

Muñoz, Hugo A. “Financiamiento de los partidos políticos”. En: IIDH/CAPEL: Diccionario Electoral. IIDH/CAPEL, San José de Costa Rica, 2000.

Navas, Xiomara. “La financiación electoral: subvenciones y gastos”. En: Dieter Nohlen, Sonia Picado y Daniel Zovatto (Compiladores). Tratado de Derecho Electoral Comparado de América Latina. IIDH/IFE/TRIFE/Universidad de Heidelberg/Fondo de Cultura Económica, México, 1998.

Njaim, Humberto. “Financiamiento de la política”. En: IIDH/CAPEL: Diccionario Electoral. IIDH/CAPEL, San José de Costa Rica, 2000.

Nohlen, Dieter. Sistemas electorales y partidos políticos. Fondo de Cultura Económica, México, 1994.

Nohlen, Dieter. Elecciones y sistemas de partidos en América Latina. IIDH/CAPEL, San José de Costa Rica, 1993.

Rubio Correa, Marcial. Estudio de la Constitución Política de 1993. Tomo IV. Fondo Editorial de la Pontificia Universidad Católica del Perú, Lima, 1999.

Tuesta Soldevilla, Fernando. “Regulación Jurídica de los Partidos Políticos en Perú”. En: Daniel Zovatto (Coordinador). Regulación Jurídica de los Partidos Políticos en América Latina. UNAM/ IDEA Internacional, México, 2006.

Tuesta Soldevilla, Fernando. Representación Política: las reglas también cuentan (Sistemas electorales y partidos políticos). Fundación Friedrich Ebert/Pontificia Universidad Católica del Perú (PUCP), Lima, 2005.

Tuesta Soldevilla, Fernando. “El impacto del sistema electoral sobre el sistema político peruano”. En: Tuesta Soldevilla, Fernando (editor). Los enigmas del poder (Fujimori 1990-1996), Friedrich Ebert Stiftung, Lima, 1996.


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Risks during the Local Elections in Colombia:A Comparative Analysis of the Last Three Mayoral

Elections Claudia López*

IntroductionThe election observation mission (EOM) of the civil society,

as a citizen initiative, has analyzed three types of electoral risks during the last three races for mayor in Colombia: high or low electoral participation, risks of blank, invalid or unmarked ballots, and electoral competition limitation risks. During the last election, it also analyzed the political violence risks, that is, violence against candidates or public servants within the framework of electoral competition and violence resulting from actions by illegal armed actors. The conclusion reached by the comparative statistical analysis of the last three races for mayor is that during these last elections in October, those risks were not significantly minimized.

That result, while obviously perplexing, is against the high expectations of the people. During the last electoral race for mayor; in October 2007, more than 35.000 paramilitary forces have been demobilized, about 8.000 “guerrilleros” have been demobilized or knocked down and their structures have been weakened and strongly fought; violence rates, particularly homicide, have decreased by about 40%, as compared to the levels in 2002; there was a full judicial process of the links between the paramilitary forces and politicians; therefore, more than 35 paramilitary leaders and a few politicians were imprisoned. This meant that their level of interference in the electoral process should be notably minimized; consequently, citizen, institutional, and governmental initiatives have been multiplied

* Master in Public Administration, with a concentration in Urban Policy, Columbia University. Column writer and political analyst. Election Observation Mission of the Civil Society.


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and strengthened to prevent and mitigate the risks threatening the Colombian democracy, particularly electoral races.

All this anticipated that during the elections in 2007, the passive and active electoral risks, that is, due to political reasons and conflicts, they should be significantly reduced. Unfortunately, it did not happen. The conclusion resulting from this situation is that the electoral risk seems immune to the significant security improvements. The expected domino effect in the political and electoral conditions and the improvement of security conditions was not achieved. Therefore, there is need for more than just security to improve the political and electoral transparence in Colombia and make the electoral processes reflect the free exercise of the political rights of citizens.

A hypothesis that might help explain this paradox can be that the dynamics and political and electoral rules have a greater influence on the minimization of such risks than an improved security. In this sense, serious structural political and electoral reforms can be the missing link to strengthen the electoral democratic chain in Colombia.

The political reform that was under way and the electoral reform that was attempted several times have failed systematically in Congress. The political recently defeated reform, due to the interference of the National Government even though the project was undertaken at its own initiative, mainly sought to set forth responsibility rules and political sanctions on parties, candidates, and elected candidates who rely upon, encourage, or belong to illegal armed forces. Upon their defeat, the message for the citizens is that political parties and candidates affiliated to criminal organizations are not duly sanctioned and continue to be elected. The electoral reform seeks to update the so-called Electoral Code, which dates back to the 80’s and has never been updated, not even to adapt it to the Constitution approved in 1991, let alone the current challenges to capture the political representation by illegal armed actors that has been widely legally discovered recently.

Those debts with the Colombian democracy are reflected in the permanence and even an increase of electoral risks, such those


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analyzed by the EOM. It is also reflected in the lack of confidence of citizens in the electoral system and the electoral results.

According to the survey on political culture conducted by the National Statistical Department (DANE) in 20071, it reveals that 57% of the respondents partially trust the electoral process, 51% considers that the vote counting in their municipality is not transparent, and 76% believes that it is not transparent in the rest of the country. Some of the irregular events cited by the respondents and that took place in the last elections in their municipalities were:

Chart 1. Irregular Events at the Municipalities. Electoral Races for

Mayor, October 2007

Situation People Rate %

Total 21.011.953 100

c.v.e. % 9,69 0,00

Purchase and sale of votes 7.673.555 36,51

c.v.e. % 19,82 13,26

None 7.347.661 34,96

c.v.e. % 11,21 10,23

Transfer of voters 4.874.978 23,20

c.v.e. % 19,19 13,24

Ns/Nr 3.933.266 18,71

c.v.e. % 10,93 11,66

Fraud in vote count 3.526.579 16,78

c.v.e. % 25,73 20,83

1 See: DANE, Encuesta de Cultura Política, at: http://www.dane.gov.co/files/investigaciones/ecpolitica/eleccpartidospoliticos_ECP_07.xls


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Pressure on voters 3.177.776 15,12

c.v.e. % 22,36 16,94

Voter impersonation 1.841.507 8,76

c.v.e. % 9,14 8,89

Disturbing the peace 1.091.757 5,19

c.v.e. % 20,18 22,98

Illegal obstacle to register the identification document

1.261.885 6,00

c.v.e. % 52,35 46,8

Double voter registration 805.066 3,83

c.v.e. % 11,85 12,74

Source: Encuesta de Cultura Política, 2007.

I. Analysis of Risks Due to Passive or Electoral Factors

A. Electoral Participation Risk as Compared to the National Average, 2000, 2003, and 2007 elections

According to official data from the National Civil Registry, the average participation in local elections in October 2007 was 55%, that is, 55 voters, out of 100 qualified voters, exercise their right to cast a vote. As compared to the local elections in 2003, the level of electoral participation increased to 9% (from 46% to 55%), which means that over three and a half million of additional people votes in 2007 as compared to 2003.

Based on this general outlook, it should be pointed out that since the first popular elections of mayors in 1988; the elections in 2007 were the first local elections in which the number of voters exceeded the number of abstentionist voters. This is good news for the Colombian democracy.


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Chart 2. Electoral Participation in 2003 and 2007

Electoral Potential 2007 27.584.523

Number of Votes -- 2007 Potential/Participation Variation vs. 2003

Mayor’s Office: 15.166.088 15.166.088 55% 3.547.919 31%Councils: 15.315.283 15.315.283 56% 2.570.902 20%Assemblies: 13.121.019 13.121.019 48% 2.279.568 21%Provincial Governments: 13.009.314

13.009.314 47% 2.080.755 19%

Number of Votes -- 2003 25.069.773 Potential/Participation

Mayor’s Office: 11.618.169 11.618.169 46%

Councils: 12.744.381 12.744.381 51%

Provincial Governments: 10.841.451

10.841.451 43%

Assemblies: 10.928.559 10.928.559 44%

The Department of Political Science from Universidad de los Andes, a member of the technical group of the EOM assessed the risks as high or low levels of electoral participation during the elections in 2000, 2003, and 2007. The research showed that the average level of electoral participation during the local elections in 2000 was 61.1%, in 2003 it slightly decreased to 60.4%, and in 2007 it increased to 64.3%. Based on the average in 2007, statistically the municipalities with the highest risk have a participation level higher than 74%, and at risk due to a low participation for the municipalities with 54% voter participation.

Chart 3. Rates of Risk Levels due to Electoral Participation--

Mayor’s Office 2007

National average Minimum Maximum Deviation -3 -2 -1 0 1 2 3

64,38278285 17,23 91,97 9,73401173 35,1807477 44,9147594 54,6487711 64,3827828 74,1167946 83,8508063 93,584818

Statistics Levels of risk due to low participation No risk Levels of risk due to high participation


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Based on the comparative analysis of the last three mayoral elections, there is an evident trend in which about 70% of the municipalities do not record a participation risk, 15% of the municipalities record high participation risk, and 15% a low participation. With a few exceptions, in each election, the municipalities have recorded this risk differently. That is, the risk has not systematically remained in the same municipalities; it has taken place in different municipalities under different circumstances.

Chart 4. Level of Risk due an Unusual Electoral Participation in

Mayoral Elections2000 2003 2007

Level of risk # of Municipalities % # of Municipalities % # of Municipalities %

High due low participation -3 7 1% 15 2% 10 1%

Average due to low participation 02 32 3% 20 2% 20 2%

Moderate due to low participation -1 97 10% 58 6% 136 12%

No risk 0 681 72% 685 76% 749 68%

Moderate due to high participation 1 127 13% 136 14% 171 16%

Average due to high participation 2 2 0% 1 0% 9 1%

High due to high participation 3 0 0% 0 0% 0

With risks 265 28% 224 26% 346 32%

Total 946 100% 909 100% 1095 100%

In general, the moderate risk due to high and low participation has tended to increase in the last three elections. While in 2003, 20% of the municipalities recorded moderate risk due to an unusual electoral participation, in 2007, it increased to 28%, while the percentage of municipalities with no risk decreased from 75% to 68%.

The departmental distribution of municipalities that recorded high or low participation shows significant territorial differences. While in Arauca, Cauca, Guajira, Quindio, Tolima, and Bogotá, there was a decrease of the risk due to unusual electoral participation, in the Departments of Guaviare, Vichada, Chocó, Huila, Meta, Norte de Santander, Valle, Antioquia, Atlántico, and Bolívar, that risk increased significantly. The case of Arauca is worth mentioning because the low participation risk affected all the municipalities where the ELN guerrilla influence was significant and was in a


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position to encourage and impose electoral abstensionism. Since 2006, the ELN announced that it would not influence using armed pressure during the elections. In 2007, the number of municipalities affected by electoral participation risk decreased from 7 to 4 and the magnitude of the risk also decreased significantly.

Of the 166 municipalities that recorded low electoral participation risk, ten had extreme risk and 20 very high risk. In general, the low participation risk in those municipalities tended to increase in 2007, vis à vis 2003 and 2000. In the municipalities where there is low electoral participation risk, there is a higher level of risk due to violence that in those with high participation. The prevailing agent of risk due to violence is the FARC, and there is a higher risk due to relocation, political violence against candidates or public servants, and violations of the freedom of press. These results prove again, as mentioned in the risk report disclosed before the elections, that the FARC’s strategy is to sabotage the democratic and electoral system in areas where they are still present and dominant. (See Attachment 1).

Of the 180 municipalities that recorded high electoral participation risk, nine are at a very high risk and are located in the departments of Boyacá, Santander, Nariño, and Casanare. In those nine municipalities, the tendency was to emphasize that type of risk vis a vis 2000 and 2003.

Chart 5. Comparison of Risks by Participation

in 2000, 2003, and 2007

Department MunicipalityParticipation Risk (2000)

Participation Risk (2003)

Participation Risk (2007)

Boyacá Cucaita 1 1 2Boyacá Sora 2 1 2Casanare Chameza 1 1 2Casanare Recetor 2Nariño Albán 1 1 2


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Nariño Nariño 2

NariñoSan Pedro de Cartago 1 1 2

Santander Cepitá 1 1 2

SantanderValle de San José 1 1 2

B. Electoral Competition Limitation Risk. Mayor’s Office 2000, 2003, and 2007

One of the principles of the democratic system is pluralism. This principle is reflected in elections because, among other things, the ideological and political tendencies compete for the popular representation on equal footing. The single or quasi single candidates breach the principle of pluralism and limit the choice of voters, the quality of electoral debate, and the democratic representation. The more candidates during competitive elections, the higher the electoral competition; while in the opposite situation, it is understood that there will be less competition and thus higher risk. For the purposes of this analysis, the electoral competition limitations are statistically analyzed based on three variables:

1. Number of candidates: it measures the average number of candidates in an electoral race, on a scale from zero to one. If there is more than one candidate, there will be zero risk, and if there are single candidates, the risk will be one.

2. Vote percentage of the winner: this variable measures the percentage of votes of the winner, on a scale from zero to one. If the percentage of votes of the winner is unusually higher than the national average, it is classified as risk one; otherwise, it is classified as zero.

3. Effective number of candidates: this variable measures the number of candidates in the race for the popular representation and how competitively the votes were distributed, on a scale from zero to one. This indicator is also measured from zero to one. When the indicator is zero, it is understood that there


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is no risk, that is, there were several candidates and even though one obtained the majority of the vote, the others were participated in a competitive election. The “one” indicator reflects that was a single candidate or that, even though there were several candidates, one obtained such an overwhelming majority that in practice there was a quasi single candidate.

These three variables were analyzed by Universidad de los Andes for the Mayoral elections of 2000, 2003, and 2007. Mathematically, the risk consolidated by electoral competition limitations is the result of adding the three variables. If they add up to 3, the level of risks due to electoral competition limitations is high, if it is 2, it is intermediate, and if it is 1, it is low. The extreme case of electoral competition risk would be a single candidate obtaining the total votes.

With regard to the first variable, number of candidates, it is a risk that has had a decreasing tendency since the election in 2000 until the elections in 2007. In the elections in 2000, 25 municipalities recorded this type of risk because they either had single candidates or because the number of candidates was lower than the national average. In the elections in 2003, this risk was present only in 22 municipalities even though it was repeated in four of them: Fortul at Arauca, Jambaló, San Sebastián at Cauca, and in the municipality of Valencia at Córdoba. In 2007, this risk was reduced to 11 municipalities, of which 10 did not have this risk in the last elections, and in one it has repeated in the last three elections: Jambaló. The case of Jambaló might be explained because of the majoritarian indigenous population, which makes a previous choice of candidate that at the end he/she ends up being formally elected and appears as the single candidate in the official records.

On the other hand, other cases show a possible influence of paramilitary forces, according to academic and legal research, for single candidates in five municipalities in Magdalena during the elections of 2000. Based on confessions, testimonies, and investigations, one of the strategies of the North Bloc of the paramilitary forces was to impose their candidates as to exercise the public power. In 2000, there were apparently single imposed


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candidates in Tenerife, Pivijai, Piñón, Chivolo, and Ariguaní, and almost single candidates in other municipalities such as Cerro de San Antonio, Pedraza, Remolino, Salamina, Santa Bárbara del Pinto, and Zapayán, and still possibilities of influence on other municipalities. Something similar also happened in the municipality of Valencia at Córdoba, where during two consecutive elections, in 2000 and 2003, there was a single candidate for Mayor.

In 2003, the formula of restricting the electoral competition in the municipalities was repeated and it was also used in the provincial Government where there was an imposed single candidate, Trino Luna, who ended up being elected. In 2002, the Department was divided in 3 territories, and in each they imposed candidates for Congress in two cases: one for the Senate and one for the House of Representatives. Today, most politicians involved in such strategy are either in prison or under investigation for collusion to commit a criminal offense and for having benefited from the paramilitary forces from an electoral point of view (Attachment 2)

Another interesting case is that of Fortul. This municipality of Arauca, and in general such department, has had a strong presence of the ELN, an illegally armed actor that has influenced the local politics mainly through intimidation and threats against candidates and electors by preventing them from freely voting through armed protests and other electoral sabotage actions. Due to that illegal pressure, it seems that both in 2000 and 2003 that municipality had low electoral participation levels and single candidates, who might have been imposed or agreed upon with the ELN. In the elections of 2000, only 30.16% of the voters voted to choose a mayor and in the elections of 2003, the participation was even lower, 17.26%. On both occasions there were single candidates approved by Partido Liberal. That irregular situation was reversed in 2007 when 3 candidates participated (one from Polo Democrático, another from Apertura Liberal, and another from Partido Liberal), who competitively participated in the elections of the municipality and which recorded a participation level of 49.5% of the electorate. The candidate of Polo Democrático was elected with 41% of the votes; the other two obtained 27% and 22% of the votes.


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Regarding the second variable, the risk due to the very high percentage of votes of the winner, there is a greater number of municipalities that recorded that type of risk, even though it has been decreasing in the last three elections. In the elections of 2000, 43 municipalities recorded that risk, in the elections of 2003 a total of 39 and 29 in the elections of 2007. As in the case of single candidates, the Department that recorded the highest risk in 2000 and 2003 was Magdalena. Between 2003 and 2007, only Angostura, Antioquia, and Jambaló, Cauca repeated the risk in that variable (Attachment 3).

The third variable, effective number of candidates, is a weighted average resulting from estimating the number of candidates based on their voting percentage. Therefore, the risk is lower because there is more than one candidate and because the distribution of the votes is competitive among candidates. If a municipality runs this risk, it is understood that even though there might have been more than one candidate, the winner obtained such an overwhelming majority that in practice it was like having a single candidate, and there was no effective number of candidates. In the elections of 2000, 64 municipalities recorded this risk, in the elections of 2003, it decreased to 59 municipalities, and 2007, it increased to 79. This is the only variable of the three analyzed with an electoral competition risk, which had an increasing tendency from 2000 to 2007. The departments with the highest risk growth in 2007 were Santander, Nariño, Cundinamarca, Antioquia, and Huila. (Attachment 4).

Based on the three aforementioned variables, Universidad de los Andes consolidated the indicator of risk level due to electoral competition limitations, resulting from adding the values of the three variables. If there is a convergence of the three variables in one municipality, the consolidated risk level will be 3, considered as extreme, if it is 2, it is considered high, and if it is 1, it is moderate. From 2000 to 2007, the consolidated risk due to electoral competition limitations, the number of municipalities increased but the level of risk decreased, that is, there is a greater number of municipalities affected but with a moderate risk. While in 2000 this consolidated risk was present in 64 municipalities, in 2003 it decreased to 55 and in 2007, it increased to 120. However, in the elections of 2000, 25


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municipalities recorded a high risk due to competition limitations, while in 2003, it decreased to 22, and 2007 to 11. On the other hand, the level of moderate risk due to electoral competition limitations has increased: in the elections of 2000, it affected 21 municipalities, in 2003, it affected 17, and in 2007, it affected 102.

Chart 6. Electoral Competition Limitation Risk Level

Electoral Competition Limitation Risk Level

2000 2003 2007

Risk Level# of

Municipalities %# of


Municipalities %

No risk 882 93% 854 94% 976 91%

At risk 64 7% 55 6% 120 11%

Moderate 1 21 2% 17 2% 102 9%

Average 2 18 2% 16 2% 7 1%

High 3 25 3% 22 2% 11 1%

Total 946 100% 909 100% 1096 100%


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186


The local electoral competition has serious limitations in a significant number of municipalities in the departments of Norte de Santander, Risaralda, Vaupes, Sucre, Meta, Boyacá, and Cundimanarca. This situation casts doubts about the pluralist quality of the local Colombian democracy, and it deserves a more thorough study on the possible causes and common patterns of the municipalities where this situation takes places (Attachment).

C. Risk due to Irregularities such as Invalid, Blank, or Unmarked Ballots, and Unmarked Cards. Mayor’s Office 2000, 2003, and 2007 This risk is measured based on the statistical irregularities

of the number of blank, invalid or unmarked ballots of each municipality with regard to the national average of those ballots. This risk was measured by the Department of Political Science of Universidad de los Andes for the local elections of 2000, 2003, and 2007. This variable identifies some municipalities at risk because they have very low levels of unmarked, invalid, or blank ballots as compared to the national average. This variable is very significant since it allows identifying the municipalities where there was electoral fraud.

In methodological terms, this risk is analyzed based on three variables:

1. The municipalities at risk due to blank ballots are those with a percentage lower than the fourth of the national average.

2. The municipalities at risk due to invalid ballots are those with a percentage lower than the half of the national average.

3. The municipalities at risk due to unmarked ballots are those with a percentage lower than the half of the national average.

Therefore, each election produces a measure of irregularities due to blank, invalid, or unmarked ballots, based on an addition scale by


187


adding up the three aforementioned criteria. There is a score of 0 to 3 for each election.

This risk has affected a third of the municipalities of the country in the last three elections in similar percentages as shown in the following chart:

Chart 8. Level of Risk due to the Manipulation of Blank, Invalid,

and Unmarked Ballots during Mayoral ElectionsLevel of Risk due to the Manipulation of Blank, Invalid, and Unmarked Ballots during Mayoral

Elections

2000 2003 2007

Risk Level# of



Municipalities %

No risk 630 67% 635 67% 731 67%

At risk 316 33% 274 30% 365 33%

Moderate 1 201 21% 188 23% 228 21%

Average 2 98 10% 70 8% 113 10%

High 3 17 2% 16 2% 24 2%

Total 946 100% 909 100% 1096 100%

This type of risk is the classical risk that takes places on election day during the counting and recounting process by the judges from the polling stations or other entities in the local and departmental registries; therefore, upon identifying the irregularities, the National Registry and other authorities can focus on verification and control efforts before and after the elections (Attachment 6).

II. Violence Active Risks The violence risks that affected the local elections of 2007 were

analyzed by the Election Observation Mission and Corporación Nuevo Arco Iris based on five public variables and their level of impact on the electoral race. The higher the violence, the higher the


188


electoral participation and the higher the risk level. The variables that were analyzed include:

1. Political violence: it includes as extreme risk (3) murders, attacks, threats, or kidnapping of candidates of the elections on October, and as average risk (1) the same type of threats against members of public corporations or public servants who have been elected for a fixed term.

2. Presence of illegal armed actors: including the presence, as measured by the number of military actions by FARC, ELN, emerging bands, and others2. The greater the number of actions, the higher the level of presence and the higher the risk level.

3. Armed confrontation: it indicates the level of armed confrontation as measure by the number of military actions among illegal armed groups and between them and the police in the same territory. The higher the confrontation level, the higher the risk level.

4. Relocation: it includes the rate of relocation upon expelling relocated citizens registered between the identification document registration end date and the day of the election. The political rights of these relocated citizens have been suspended because they were not able to cast their votes where they lived or register because of a violent relocation.

5. Violations of the freedom of press: it includes homicide, threats, kidnapping, relocation, illegal detention, degrading treatment, and obstacles preventing journalists to cover the elections, political issues, or disturbance of the peace. The more serious the violation and the closer the relationship with the electoral race, the higher the risk level.

2 This variable includes military actions of non demobilized paramilitary forces and of new illegal armed structures, the so-called emerging bands in the official statistics, and others referred to as structures under development by the analyst, Gustavo Duncan, writer of the analysis of this variable.


189


The number of municipalities affected by each variable during the local elections of 2007 is shown in the following chart:

Chart 9. Municipalities Affected by Violent-Related Variables

Variables Number of municipalities affected

1. Political violence

Against candidates

Against public servants

101

6 7

3 4

2. Armed confrontation 330

3. Presence of illegal armed actors

FARC

ELN

BANDS

3 6 7

6 5

9 9

4. Relocation 48

5. Violations of the freedom of press 28

Consolidated total

Extreme risk (3)

High risk (2)

Average risk (1)

576

1 6 4

1 7 5

2 3 7

Based on chart 10, we can infer that 164 of the 1100 municipalities in the country were severely affected by the presence of illegal armed actors, their confrontation, and other variables during the elections. Even though the improvement reflected both in a greater presence of the State and in the indicators of violence and crime is evident in the last 5 years, the situation of disturbance of the peace is still critical in over half of the municipalities in the country, which represents a significantly high risk level for the standard of living of the population and, particularly, for the exercise of democratic guarantees.


190


The first factor of violence-related risks is the presence of illegal armed actors and the level of armed confrontation that, even though it is legitimate according to the State, it leaves the civil society in the crossfire.

Chart 10. Municipalities at Risk due to the Presence of Illegal Armed Actors

Number of municipalities at risk due to the presence of illegal armed actors

Armed group/Risk level

FARC ELN Emerging Bands and others

Extreme (3) 26 8 15High (2) 104 18 61Average (1) 237 39 23Total 367 65 99

The presence of illegal armed actors, particularly the FARC, is directly related to other violence factors that threaten the electoral race, including political violence against candidates, public servants, relocation of civilians, and violations of the freedom of press.

The second violence risk factors are homicide, threats, and kidnapping of candidates for the following elections or of public servants. According to the information gathered by the Misión Observatorio Político Electoral and Universidad del Rosario as of September 19, there have been cases of political violence against candidates in 67 municipalities and against public servants in other 34 municipalities. The following chart indicates that the predominant violence factor in such municipalities is the presence of the FARC and, second, the level of armed competition.

The third risk factor is relocation. According to Information System for Displaced Population (SIPOD), between the end date for the registration of identification documents needed to vote and Election Day, about 20.000 Colombian from 671 municipalities were violently displaced. Those Colombians were not able to cast


191


their votes because of the relocation because they could not vote where they lived or register their identification document where they arrived because the term to do it has already expired. The southeast departments (Tolima, Caquetá, Meta, Guaviare, and Putumayo), and others such as Arauca and Valle del Cauca have been particularly affected by this risk factor.

In 37 of the 48 municipalities more affected by relocation, there is a presence of the FARC and in 31, there are significant armed confrontation levels. In three municipalities, there is a combined presence of the FARC and ELN and in other nine of the FARC, emerging bands, and other violence agents. Once again, the FARC and armed confrontation are the risk determinants in this variable.

The fourth risk factor with the lowest impact is the violations of the freedom of press, related to the electoral race in 28 municipalities. In 21 of the 28 municipalities running this there is a presence of the FARC, in 9 emerging bands and other violence factors, in 5 the ELN, and in 18 there is armed confrontation.

As measured by the acts of violence on Election Day, the elections of 2007 were more peaceful than those of 2003. Even though during the elections of 2003, there were nine cases of disturbance of the peace on Election Day, in 2007 there were only two, even though 48 were detained due to alleged electoral offenses. Only two municipalities were not able to hold elections due to disturbance of the peace: Argelia-Cauca and Castilla la Nueva-Meta.

Even though Election Day was peaceful, the storm began the following day. As never seen in decades, there were manifestations in 16 municipalities the day after the elections in which the citizens protested and even attempted against the National Civil Registry because they did not accept or recognize the electoral results as valid. There were other municipalities that, fortunately, did not result in violence.


192


III. ConclusionIn spite of the outstanding improvement of safety in the country,

such improvement did not help reduce the electoral risk level during the local elections. In almost half of the municipalities there is still some risk due to the presence and violent confrontation among illegal armed actors and in 164 such risk is extreme. The guerrilla of the FARC and the armed confrontation were the violence factors that caused the highest risk in the previous electoral race.

To sum up, the electoral risk factors not related to violence did not decrease in these elections as compared to 2000 and 2003. The three types of risks: unusual electoral participation, electoral competition limitations, and irregularities in blank, invalid, and unmarked ballots did not decrease during the elections of 2007 as compared to the previous elections. On the contrary, the number and the percentage of municipalities affected by those risks tended to increase even though the risk level became moderate and in some variables it fell.

The persistent tendency in the last three mayoral decades is that least a third of the municipalities in the country recorded some type of passive electoral risk due to reasons not directly related to acts of violence. However, it is also worth mentioning that the municipalities in which these risks emerged varied from one election to the other. It is more an exception than a rule that in a municipality there is the same type of electoral risk in different elections.

The most notorious type of electoral risk in the mayoral elections is the possible manipulation of blank, invalid, or unmarked ballots, which has affected 33% of the municipalities in the last three elections. The second risk is an unusual electoral participation that has affected between 28% and 32% of the municipalities. And the least latent risk in the local democracy are the electoral competition limitations due to the presence of single candidates, high unusual elections, and a low effective number of candidates which hardly affected between 6% and 11% of the municipalities in the country.

It should be pointed out that the presence of this type of risk cannot be considered as proof electoral fraud or crime. They are just indicators of unusual behaviors of an electoral variable with regard to


193


the national average. Nevertheless, those indicators allowed focusing on the municipalities that deserve an analysis and a more detailed verification of the civil society, the academia, and the electoral and political authorities because such irregularities can be a sign of irregularities and fraud that can be prevented and corrected in the future.

In spite of this, the fact that the electoral statistics allows casting a reasonable doubt about the quality of the electoral democracy in a third of the municipalities in the country should be a reason for concern and, most of all, diligent actions by authorities and society at large if we want citizen to trust again in the electoral process.


194

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capel 54 ing - corte idh 978-9968-611-36-7 1 derechos electoral 2. reforma electoral the materials...

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