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Sanctions Applied to
Defaulting Political Parties and Candidates
in some Countries with
Proportional or Mixed Electoral Systems
Introduction
The role of money in politics is an issue of daily debate in old and new
democracies alike. The ways that parties or candidates get access to or spend
money can influence the outcome of elections, and condition the level of public
trust as a whole.
Laws and regulations are of little value if they are widely disregarded and if
offences go undetected and unsanctioned. The Parliamentary assembly of the
Council of Europe reads in its recommendation 1516/2001 “In the case of a
violation of the legislation, political parties should be subject to meaningful
sanctions, including the partial or total loss or mandatory reimbursement of
state contributions and the imposition of fines. When individual responsibility
is established, sanctions should include the annulment of the elected mandate or
a period of ineligibility”. However, it is worth mentioning in this context that
enforcement of laws and regulations has proved an especially severe problem.
What kind of sanctions?
Four kinds of
sanctions may be used to punish offences in political party financing:
financial, civil, criminal, and electoral.
1. Financial: the penalty most commonly applied to an offender is the
loss of part or all of its entitlement to public funding. This sanction can be
imposed in France, Germany, Russia, Spain
and many countries in Latin America. If a party obtains donations illegally in
Germany, the president of the Bundestag can claim back three times the
amount of the illegal donation; if the donation was incorrectly published, or
the statement falsified, the president can claim twice the amount of the
donation, or the false amount. If the party does not produce its statement of
accounts on time, it loses its entire allocation of public funding.
Fines are also applied as financial penalty. They usually relate to the offence;
for instance, they are proportional to the sum by which the expenditure ceiling
was exceeded.
2. Civil: temporary loss of right to sit and vote in the legislature by
successful candidates who have failed to submit a return of expenses on time,
forfeiture of seat in the legislature by a successful candidate later found
guilty of a serious offence, loss of civil rights by those found guilty of
offences (e.g. the loss of the right to vote for a certain period of time).
3. Criminal: Provisions entailing criminal penalties are less common but
are in force in Britain, Canada, France, Italy, Spain, Germany,
and the United States. For instance, German electoral law provides for a
two-year prison term or a fine for those found guilty of supplying
false information about party income and assets. Sanctions of three years in
prison or a fine apply to any accountant who conceals information.
4. Electoral (Political disabilities): the most effective sanction is
electoral, namely disqualification, or the loss of a mandate, as
is the case for the head of a political party in Québec. In France, candidates
who fail to abide by transparency regulations governing party funding will not
be disqualified unless their campaign accounts are rejected.
It is important that sanctions are proportionate to the offence. If they are too
harsh, the judicial authorities will be reluctant to prosecute. However, if
sanctions are too lenient, they will not serve as a useful deterrent. Thus, for
example, it would be disproportionate if the registration of a candidate or a
political party would be withdrawn if the candidate or the party has merely
insulted “another candidate or party (but see Article 89.5 of the Draft Election
Code of the Republic of Azerbaijan). The proper sanction for such an
insult would be a (civil or possibly even a criminal) court proceeding, not a
cancellation of the registration.
Who should be sanctioned?
A
related question is who should be sanctioned, the politician or the party? In
most countries candidates are largely shielded from liability, except when they
were actively involved in a particular violation. In Germany, the
executive committee member responsible for the party's financial affairs is the
one who risks sanctions for wrongdoing. In Britain, the party treasurer carries
criminal liability if illegal contributions are accepted or reports are filed
inaccurately. Some level of personal liability is generally desirable.
Enforcement and
Sanctions
Enforcement is a matter of keeping a delicate
balance between legal rules and political impact, public interest and media
publicity, impartiality and partisanship. However, sanctions or adequate
penalties for specific offences have to be stipulated by law. The
independence, persistence in dealing with different offenders, and constant
vigilance of the enforcing agency in applying the instruments available to it,
are extremely important. Unless these conditions are met, there is no effective
machinery for enforcement.
A distinction must be made between
administrative deals and sanctions, on the one hand, and criminal
prosecutions leading to fines and indictments, involving a judge or a court,
on the other. The Commissioner of Canada Elections is the only official who can
initiate prosecutions for offences under the act regulating (elections and)
political finance. By contrast, the Central Election Management Committee of
Korea has to pass every investigation and prosecution of offences against
spending limits and reporting provisions to the criminal investigation
authorities, who have to decide if imprisonment or fines are the appropriate
sanction.
Criminal prosecutions result from substantial
violations of political finance rules. An unresolved problem is allegations of
violations in the critical final weeks of an election campaign which cannot be
dealt with by due process of law before the election date. Appropriate sanctions
may or may not be available and have different impacts. A tax penalty, for
example, withdrawing tax benefits for donations or a party organization’s
tax-exempt status, can be imposed by government and may easily affect an
opposition party. A cut in the public subsidy entitlement can be imposed to
enforce compliance with transparency rules, as in Germany, or with
spending limits, as in Israel. Administrative fines are an option that is often
available to enforcement agencies. Their impact will depend on the maximum set
by law, because some parties will prefer to pay a relatively small fine and thus
get away with violating the rules. Therefore stricter laws will provide for
imprisonment or disqualification of a politician from standing for election or
taking his seat in parliament. Such punishment looks convincing on the statute
book. The real problem arises when a case has been taken to court. If accounting
rules or deadlines for reporting and disclosure are violated in Japan,
the person responsible can be fined or imprisoned. Before 1992 no member of the
Japanese Parliament was prosecuted for violation of spending or contribution
limits or any forgery intended to conceal such malpractice. Since the 1994
reforms the number of cases of politicians being taken to court for violations
of the political funds control law and sentenced has increased.
At present, the Canada Elections Act can
only be enforced through the criminal courts and not through the civil courts.
Offences are therefore always resolved with punitive rather than remedial
measures. Canada has developed a policy of imposing light sentences for many
offences. The reason for this is that relatively small fines will often be easy
to impose. “Nuclear weapon-type” penalties, such as imprisonment or loss of a
seat in parliament, will lead to such protracted legal battles that the law will
rarely be enforced.
Thus, an arsenal of sanctions of varying degrees of
severity is needed to back up political finance rules. Senegal
provides a telling example of this. Here parties which do not submit their
annual reports on income and expenditure are liable to be dissolved by the
president. Dissolution has to be recommended to the president by the General
Affairs Department (DAGAT) of the Ministry of the Interior. As the
administrative staff in the DAGAT devoted to enforcement of legislation on
parties is very small, and not even the ruling party abides by the transparency
obligation, the DAGAT has been more or less reluctant to implement these rules.
There has not been a single dissolution of a party as a result of violation of
the rules on party financing. The lack of any alternative sanction other than
dissolution is critical. The introduction of public funding is expected to end
the need for more gradual sanctions and to provide the DAGAT with a tool to
enforce the law.
Sanctions in some countries adopting PR or mixed systems
1- Countries with
proportional system
Election Appeals Sub-Commission prescribed sanctions for failure to abide by the
rules on disclosing campaign finance details. The EASC was entitled to impose
disciplinary measures and/or fines on all individuals,
candidates, political parties, coalitions, lists of independent candidates, or
bodies for breaches of certain provisions. More specifically, the EASC
was entitled to:
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ban a political party, coalition, list of independent candidates, or an
independent candidate from running for election;
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annul certification of a political party, coalition, list of independent
candidates, or an independent candidate already on the ballot paper;
-
remove a name of a candidate from the list and not allow his/her replacement;
The law does not specify which institution should scrutinize any party financial
reports and does not foresee any penalties for violations of regulations
of financial activities. This makes any effective control over campaign finance
impossible.
Sanction for electoral offenses may include, without limitation, injunction,
financial penalty, public notice, certification suspension and
decertification. Such offenses and sanctions shall be in addition to
criminal offenses set forth in Iraqi law.
The sanctions for violations are weak and primarily of administrative
character.
The only meaningful sanction envisaged by the Law on Political Parties is
a fine amounting to two average monthly salaries, which is levied
on the financially responsible person of a political party who fails to produce
evidence relating to donations received by public enterprises and organizations.
The law on parliamentary elections introduces a number of enforceable
sanctions. Firstly, there are fines for the parties that violate the
designated electoral account principle - 200,000 .300,000 Denars (USD 3,000 to
USD 4,500). Similar fines for parties apply if they fail to produce the
necessary reports of their finances, as well as in cases of violation of the
overall expenditure limits. The financially responsible persons in the parties
are also to be fined in cases of the above-mentioned violations. In addition, if
contestants use funds that are proven by a court verdict to have been acquired
by criminal means, their election could be nullified. This applies to
both parties and candidates.
It seems that the rules are more capable of ensuring transparency of the
individual candidates’ campaign finances, rather than those of parties and
electoral blocs. This is so because of the structure of sanctions: an
individual candidate may lose his parliamentary seat in certain cases of
violations, while there are no similar sanctions for political parties.
This is a general problem, which is very difficult to tackle. The most
reasonable answer to this problem is the introduction of severe fines for the
political parties. However, fines will only be effective against established
parties; ad hoc electoral alliances may well go bankrupt after the elections, at
no cost to their individual members, many of whom could be in parliament
enjoying special immunities. This is yet another argument in favor of making the
established political parties major players in the electoral process.
A
system of authorized financial agents, registered with the Ministry of Economy
and Finance was introduced in 1992. Both parties and independent candidates
should have their financial agents. The receipt of funding that is not
authorized by the agent is a “petty offence”, according to the
law, bringing a sanction between ROL 15,000 and ROL 45,000 (USD 1 and USD 3).
Major parties, such as the PDSR and the National Liberal Party, have failed to
produce the required reports, while the reports of the rest of the parties are,
in the view of most of the observers, unreliable. The lack of sanctions
against such types of violations seems to be the greatest problem of
Romanian campaign finance, which provides a major catalyst for corrupt
practices. It is obvious that the system of electoral agents is inefficient in
preventing the violations of political parties. Sanctions like suspension of
state subsidy, return of state subsidies, and financial fines seem to be much
more effective, if set at a proper level.
The sanction, mainly the confiscation of illegal incomes, seems
insufficient on its own. Forfeiture of the right to state subsidy,
return of state subsidies, or the imposition of substantial fines
should also be considered as effective deterrents for financial irregularities.
2- Countries with mixed
systems
The existing legislation seems to be somewhat unclear regarding sanctions
for violating campaign finance regulations. While the election commissions are
entrusted with overseeing the observance of campaign legislation and they may
turn to the court to request that the election registration of a particular
candidate or party be canceled, the law does not spell out the exact
violations for which one can be punished in this way. Therefore, a fuller
list of sanctions for violations of each restriction seems to be appropriate.
The Collegio di garanzia elettorale is a regional committee that monitors
campaign expenses and party finance. Each collegio reports to the National Audit
Authority. Sanctions can be made by the Authority: fines of between
30,000 Euro and 100,000 Euro can be issued for breaking the law on campaign
publicity.
The legislation does not provide for serious sanctions against violators
of campaign finance regulations. Only forgery of financial declarations is a
criminal offence.
The ability of the electoral authorities to assure sanction in cases of proved
infractions appears quite limited. The judicial system is too weak to
assure investigation and sanction.
Under the current law, sanctions for any financial irregularity or infraction
involve no less than rejection or annulment of registration, or removal of a
mandate. These provisions raise the concern that they are vulnerable to
arbitrary and inconsistent application.
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