5
of the voters” has been enhanced by important institutional evolutions in domestic
law and in the inter-American system itself in light of which this general provision of
the Convention must be interpreted and applied, with regard to both the rights of the
citizens and the obligations of the State. As regards the right to take part in the
conduct of public affairs, the Inter-American Democratic Charter has summarized
and expressed the current consensual status in the inter-American system with
regard to the “free expression of the will of the voters.”
22.
Indeed, the Charter reiterates principles that coincide in general with the
contents of the Convention when it indicates that: “Essential elements of
representative democracy include, inter alia, respect for human rights and
fundamental freedoms, access to and the exercise of power in accordance with the
rule of law, the holding of periodic, free, and fair elections based on secret balloting
and universal suffrage as an expression of the sovereignty of the people, the
pluralistic system of political parties and organizations, and the separation of powers
and independence of the branches of government” (Article 3).
23.
As we can see, at least two important aspects of the requirements that the
Convention already contained were clarified and developed by the Inter-American
Democratic Charter: (a) not only the access to power but also its exercise should be
subject to the rule of law; in this way, the “legitimacy of exercise” is added as an
inter-American principle to the already recognized “legitimacy of origin”; (b) the
pluralistic system of political parties and organizations. The political parties merit a
specific additional consideration in the Charter, since it stipulates that “The
strengthening of political parties and other political organizations is a priority for
democracy. Special attention will be paid to the problems associated with the high
cost of election campaigns and the establishment of a balanced and transparent
system for their financing” (Article 5, underlining added). Reading the American
Convention in light of these conceptual evolutions that the inter-American consensus
has expressed in the Democratic Charter shows that the free expression of the will of
the electors would be affected if authorities elected under the rule of law (legitimacy
of origin) exercise their functions in violation of the rule of law.
24.
In relation to political parties and organizations, this is an absolutely central
issue that has direct repercussions as regards the rights of those who tried
unsuccessfully to be candidates for YATAMA on the Atlantic Coast of Nicaragua.
Curiously, this issue is not mentioned explicitly in the OAS Charter or in the
American Convention. However, the conceptual essence of representative democracy
presumes and requires ways of representation that, in light of the provisions of the
Democratic Charter, would be the parties and “other political organizations” that
should be protected and also strengthened according to the provisions of Article 5.
25.
With regard to political parties and “other political organizations,” a first issue
to mention is that, since they are considered essential elements for channeling the
free will of the voters, it is the State’s obligation to provide the conditions for
strengthening these means of representation; contrario sensu, to abstain from
adopting measures that could weaken them. The Democratic Charter mentions
explicitly the issue of the financing of electoral campaigns as a matter to which
attention should be paid, and also emphasizes the need to ensure “the establishment
of a balanced and transparent system for their financing.” Without mentioning it, the
Democratic Charter is conveying that, faced with possible imbalances and
inequalities, a counterbalancing system should be ensured in order to achieve the
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents