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Year 1 No. 3 September - December 2008

The Role of the Electoral Justice in the warranty of the Legality of the Official Results in the General Voting - Nibaldo Segura Peņa











Nibaldo Segura Peņa
Minister of the Excellent Supreme Court of Justice and Minister of the Excellent Tribunal Qualifier of elections


RESUME

Chilean,

Attorney, University of Chile;

Current Position: Minister of the Excellent Supreme Court of Justice and Minister of the Excellent Tribunal Qualifier of Elections;

01/31/2004 to 01/30/2008: Minister of the Excellent Tribunal Qualifier of Elections.

08/13/2001: Minister of the Excellent Supreme Court of Justice.

10/20/1978 to 08/12/2001: Minister of the Illustrious Court of Appeals of Valdivia.

09/30/1974 to 10/19/1978: Judge of the 2nd Court of Temuco.

06/30/1970 to 09/29/1974: Rapporteur of the Illustrious Court of Appeals of Temuco.

05/27/1969 to 06/29/1970: Trial Judge of Lebu

01/05/1968 to 05/26/1969: Trial Judge of Curacautin.

10/14/1965 to 01/04/1968: Clerk of the Trial Court of Small Claims of  Temuco.


Every democratic system is based on the participation of the citizens that integrate it, through the election of those who will take the public decisions indispensable for the life in society, in which the popular will must be expressed through the electoral processes that, depending on their transparency and credibility, will make legitimate or not the elected authorities or representatives.  

It is in this context that we should situate us upon analyzing the importance of guaranteeing the legality of the results of a voting, since we are not speaking only of a mere certification, from a statistical or corroborative perspective, but of validating a whole electoral process and, in final, a whole system of government. 

In fact, it does not suffice with assuring the legality of the scrutiny of the votes casted, in other words, the validity of merely counting the votes, but it is necessary that all the election process that has taken place would count with due transparency and legitimacy, being precisely the Electoral Justice responsible for said function. 

This is how in this important task, corresponds to the Electoral Justice an important participation, since upon being conformed by Electoral Organs provided with due independence and impartiality, is the best suited to guarantee the legality and legitimacy of the totality of the electoral process taking place, from its call to its development and the subsequent publication of results and proclamation of the elected candidates. 

 

Definitively, in order to validate the results of a voting it is necessary to have certainty that all the phases comprising the election have been carried out according to the law.  In this sense, there are various aspects in which the Electoral Justice should act, guaranteeing by virtue of its independence and impartiality, the compliance of the necessary conditions, so that the respective voting is carried out legitimately, to wit:

 

a) equal opportunities to be presented as a candidate for an election, which implies overseeing from the formation of the political parties and its internal organization, to the equality and compliance of the requisites of inscription of candidacies, expenses of the respective electoral campaigns and publicity of it, by the candidates;

 

b) equal requisites to have the right of suffrage, guaranteeing that each person that casts a vote does it in the same conditions that the remainder of the citizens;

 

c) transparency in the establishment of the places of voting and of the tables receiving of votes, by means of specific rules, that include, step by step, the procedures to follow on the election day, as well as the existence of registrations that allow to keep track of everything that is done on the election day, and the impugning or claims filed;

 

d) transparency in the voting, in other words, to guarantee that the vote comply with its characteristics of being personal and secret;

 

e) transparency in the scrutiny of the votes, which implies clear rules in the mechanisms to be used in this process, as well as to guarantee that a detailed counting of the votes casted in each one of the receiving tables is carried out, and the review of their records where claims, if any should be registered;

 

f) equal opportunities to file claims, either at the presentation of candidacies phase, or during the development of the electoral process, in the sense that the access to the Electoral Justice is equal for all the citizens, without obstacles or interferences of any kind;

 

g) knowledge of the results of the voting, by means of clear broadcast systems through media that guarantee the truth of the data made public and the reception of this data by the citizens, which besides being exact, should be delivered as promptly as possible, in order to avoid the false or inexact propagation of results that would derive in confusion and ambiguity; and,

 

h) proclamation of the elected candidates, the ones that, if the remainder of the conditions indicated are complied, will be absolutely legitimized to perform their positions. 

 

In conclusion, an arduous task is given to the Electoral Justice in guaranteeing the official results of a general election, given that, by means of the faculties conferred to it, should oversee the legality and validity, not only of a counting of votes, but of all and each one of the phases that comprise an electoral process, which will only produce the desired results if it has been provided with the due autonomy, independence and impartiality, legitimizing and giving credibility in this way to the elected authorities and representatives, and what is more important, consolidating the will of a whole country.