In some systems, the political
finance regulator (PFR) has the authority to file a civil action suit in the general
courts, requesting monetary or mandatory (injunctive) relief if an electoral
participant appears to have violated the political finance laws. The PFR may also have to bring an action against the offender in the civil system
to enforce administrative orders and penalties if they are not sufficient or self-executing.
The advantage of civil
enforcement is that the PFR need not depend on the law enforcement authorities
to initiate legal action, as is the case for criminal prosecutions. Should a
PFR be ineffective or lack resources, non-governmental organizations (NGOs) and
private litigants can attempt to bring a civil suit. An NGO often is able to
sue on behalf of its membership or the general public to ensure that candidates
and political parties comply with the law.[1]
In a few countries (e.g., Georgia), accredited national
observers can submit electoral complaints. In civil cases initiated by the PFR, civil society groups and independent
individuals (such as academics) may provide useful research and legal arguments
by filing amicus curiae (“friend of
the court”) briefs in support of the PFR. Even a candidate or campaign may
promote enforcement by bringing suit under the political finance laws on the
basis of injury suffered in the electoral process. Similarly, a candidate or party could
potentially bring action against the State if the response of electoral
administration to a violation by another election participant is ineffective.[2]
Enforcement is strengthened if
the PFR can itself initiate criminal prosecution of political finance offences
or can refer cases to another government body with the authority to institute criminal
proceedings. Most countries do not empower the PFR to initiate or
conduct prosecutions of criminal violations of the political finance laws. An
exception is Canada,
where the PFR can initiate an investigation and appoint personnel to conduct
it. The Canadian PFR can also initiate prosecutions of offences under the
political finance laws. [3]
Prosecutions involve two disadvantages:
- They almost always take
place after the election is over. As a result, when making their voting
decisions, electors do not have the benefit of knowing the facts that
might emerge from a proceeding.
- The PFR usually must rely
on the prosecutorial discretion and good faith of law enforcement agencies
to prosecute criminal violations of the political finance laws.
Thus experience shows that,
rather than severe criminal penalties, monetary fines and threatened withdrawal
of public subsidies are often more effective ways of enforcing the law.[4]
In the Republic of Korea, for
instance, the Central Election Management Committee must transfer every
investigation/prosecution of violations of the spending limits and disclosure
requirements to the criminal investigation authorities, which decide whether
imprisonment or fines are appropriate.[5] A
decision to pursue criminal sanctions thus shifts all enforcement authority to
the law enforcement agency, and this body may not give priority to political
finance violations or may be subject to political pressure.
Particularly in countries in
transition, the decision about whether to prosecute political leaders or
candidates is not always made objectively and may not be based on a detailed
review of the case. [6] For
instance, in the 1993 parliamentary elections in Poland,
dozens of campaign committees failed to make timely disclosures, or any
disclosure at all. Despite this, the prosecutor’s office decided to discontinue
proceedings in 58 cases of political finance violations that it deemed socially
harmless.[7]
[2] See
ICCPR, Article 2.3 (“effective remedy”); see also UNHRC, General Comment No. 31
on the right to an effective remedy, op.
cit.
[3] International IDEA, Funding of Political Parties
and Election Campaigns, op. cit. (2003),
p. 151; see also Davidson, Diane R., “Enforcing Campaign Finance Laws: What
Others Can Learn from Canada,” Election Law Journal, 3(3), 2004, p. 537–544.
[4] IFES, Enforcing Political Finance Laws, op. cit., pp. 30–31
[5] International
IDEA, Funding of Political Parties and Election Campaigns,
op. cit., pp. 151–52
[6] IFES, Enforcing Political Finance Laws, op. cit., p. 33
