AUTONOMY OF ELECTORAL ORGANS^*
María del Pilar HERNÁNDEZ^**

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SUMMARY
I. General considerations. II. Contextual reasons for the emergence of autonomous constitutional organs. III. The manifestations of autonomy. IV. Electoral autonomous organs in Mexico. V. The case of the Electoral Court of the Federal District. VI. The proposal for constitutional reform.

I. GENERAL CONSIDERATIONS

In the context of the debate between a new Constitution and an integral constitutional reform, the topic of the autonomy of jurisdictional organs, in general, and of electoral courts especially, a punctual revision is imposed and serious on the part of the specialists and of those who form a part of the resolution organs of electoral controversies.

This is the reason we decided to do an analysis concerning the autonomy of electoral organs in our country, making special mention in the case of the Electoral Court of the Federal District. For the above mentioned effects, this work is divided in six fundamental sections. In the first one the present general considerations are presented. The second one focuses on the study of the emergence and the characteristics of autonomous constitutional organs. In the third one we deal with the analysis of demonstrations of autonomy. In the fourth we present a brief justification of the emergence of electoral organs in Mexico. The fifth one devotes itself to the Electoral Court of the Federal District as an autonomous organ and maximum jurisdictional electoral authority in the entity and, finally, in the sixth paragraph we present the propositions of constitutional reform that we consider to be necessary for a real consolidation of the autonomy of local jurisdictional organs.

II. CONTEXTUAL REASONS FOR THE EMERGENCE OF AUTONOMOUS CONSTITUTIONAL ORGANS

Recently, in diverse countries of Latin America, constitutional organs have arisen with diverse degrees of independence from the three traditional powers —Legislative, Executive and Judicial—. In the case of Mexico, we found that the federal Constitution, in its articles 28; 41, paragraph III; and 102, paragraph B, refers, respectively, to the Central Bank, to the Federal Electoral Institute and to the National Commission of Human Rights, as autonomous organizations.

This proliferation of so-called "autonomous constitutional organs" can be understood in the light of rethinking of classical theory of the division of power, which we must not understand as the rigid separation of functions and attributions as another author has considered,¹ but as a distribution of powers among organs of the State, which require relations, controls and reciprocal interventions. There is a coincidence in that the traditional theory of division of power obeyed the need to limit the all omni modal power of the kings since, as it is known well, in the course of history, the domineering center of power production was the king. Today, the powers are allocated as much in institutions as, also, in society, in political parties, national and transnational managerial organizations and mass media, among others. In addition, in many contemporary constitutional systems we find diverse organs that cannot be located in any one of the three typical and traditional powers.

The reasons for which these organs arise are multiple: to confront the pernicious faults of the partycracy, technical-administrative specialization, fulfillment of functions that must not be subject to the political conjuncture or change but that are a part of the natural attributions of the State and, in the case of the electoral matter, the need to rely on guarantees of impartiality in the electoral processes. The constitutionalization of these organs has not brought a parallel theory that explains its juridical nature. There exists, nevertheless, a theory of constitutional organs, of German origin, from which some constitutionalists such as Manuel García Pelayo, have tried to respond to the statute of new organs such as constitutional courts, economic and social consultation, to defend the people and institutions of similar characteristics.²

Concept and function

It is understood by autonomous constitutional organs those that —of fundamental and immediate way— are established in the Constitution and that are not assigned with precision to any of the traditional powers of the State. They represent an evolution of the classical theory of the division of power because it is assumed that there can be organs foreign to the three traditional powers without having democratic or constitutional principles infringed.

Their function in Europe has basically been to control or to balance the traditional powers for the strong presence that in them, as well as in the government or in the parliaments, they have parties, this is, they "dis-partycratize" the functioning of the State. They are generally technical organs that leave aside the partisan or relating to the conjunctural momentaneous interests and, for its proper functioning, not only must be interpreters of the traditional powers, but of political parties or of other groups or of real factors of power.³

They are organs of constitutional and political balance, and the parameters under which they undergo and manifest their function by not passing the immediate criteria of the moment but they preserve the organization and constitutional functioning. In the last instance, they are organs of constitutional defense and of democracy and, because of it, it is necessary that they be contemplated in the Constitution so that it regulates its integration and structure in order that its future functioning be independent.⁴

Without a doubt, the difficulty in the production of a homogenous theory derives from the fact that each country, constitutionally and sometimes through its legislation, has extended or limited its number, its characteristics and its levels of independence.

Like has already been mentioned, constitutional courts constitute the example par excellence of constitutional autonomous organs in continental European law. Nevertheless, the appearance of other called constitutional "autonomous" organizations (in the case of Mexico, the Central Bank, the National Commission of Human Rights and the Federal Electoral Institute), takes us to formulate the following question: what characteristics must an organ possess to be considered "autonomous"?

In this matter, García Pelayo, suggests some characteristics typical of these organs, such as:⁵

1. The immediacy, that is to say, these organs must be established and formed directly in the Constitution;

2. The essentiality, since they are necessary for the constitutional State of the law;

3. The political direction, although these entities take part in the direction of the politics of the State and from them executive acts result, legislative or judicial, that contribute and that help orient the process of decision making;

4. The parities of range, provided that they never support other organs and power relations of coordination and of subordination; and,

5. The organic, functional autonomy and, on occasion, budgetary.

In the case of European countries, we prune to locate the existence of these organs, not only in their Constitutions, but also in the constitutional interpretations that stem from them.

In Latin America, the great diversity of constitutional autonomous organs shows us that there exists an increasing trend to establish, and that its levels of autonomy are diverse, that there is not an agreement regarding which ones and how many constitutional organs there should be, principles or characteristics specified or homogeneously that are also needed that must have a democratic State and, constitutionally and politically, the place that they should occupy in the theory of the division of power has not been defined.

Juridical political theory needs to make a great effort to define the normative or prescriptive characteristics of autonomous constitutional organs. Together with the criteria provided by García Pelayo, the following points might be added:

1. Autonomy or independence, not exclusively formal, but also financial. The constitutional autonomous organs demand a budget that is not prescribed by secondary law, or the result of the political agreements of the moment, but of a constitutional disposition that determines, with all precision, the bases on which it must be granted or allocated.

2. Integration of constitutional autonomous organs and the statutes of its holders. This principle must be understood as the need for holders of autonomous constitutional organs, preferentially, to be proposed for Legislative Power with Majorities equal to two thirds of the Congress or Assembly. To rely on guarantees or individual statutes of justice of the State Judicial Power, then these guarantees must have: a just and impartial selection, the immobility, a sufficient remuneration, prohibition of its reduction, and in its case removal.

3. Apolitical. Autonomous constitutional organs are never organs of technical and political character. Its members will not be able to be members or militants of any political party.

4. Immunities. This aspect is intimately tied to judicial guarantees. The holders of these organs can be removed for incurring responsibilities. Nevertheless, they will have to rely on certain types of immunities that should allow them the full performance of the charge.

5. Responsibilities. Autonomous constitutional organs will inform periodically of its activities to the Congress and to the citizens.

6. Transparency. The acts and decisions of these organs, except in exceptional cases, can be consulted by any citizen.

7. Intangibility. They will be permanent organs, or, in case of modification, it might demand a procedure of constitutional reform more reinforced than the constitutional ordinary procedure of reform.

The appearance of autonomous constitutional organs derives from the lack of organs that monitor the excesses of political parties and of interest of the national international groups. Likewise, autonomous constitutional organs can be an ideal instrument of control of the interests and contemporary groups of pressure: mass media, economic transnational interests, drug trafficking, etc.

Much has been questioned of autonomous constitutional organs because of their technical character and the relative absence of legitimate democracy. In this regard, we could argue that the legitimacy of these organs implies that they adopt day after day their decisions in conformity with principles of the constitutional democratic State. One of the essential principles of this justification is precisely the transparency of the interior of the organs and the public discussion that is generated about them. Also autonomous constitutionals organs are justified in the political systems —presidential or parliamentary— have the habit of answering to the interests of the majority, who controls them when they act in excess, and who defends the legitimate rights of the minorities when the traditional and principal organs of the State are dominated by the majorities.⁶

III. THE MANIFESTATIONS OF AUTONOMY

Regarding the autonomy of the electoral organs, in addition to the principles mentioned by García Pelayo, it would be good to distinguish four areas of autonomy that ultimately come together in the level of total autonomy of the electoral organ. These areas are:

1. Political autonomy

It implies that the quality that the electoral organ has of exercising its function, is achieved in an independent way, without subordination to another organ and that the laws that govern its existence recognize the character of maximum authority in the subject. Within this type of autonomy we can distinguish full autonomy (when the organ is not subordinated to any power and therefore it is the maximum electoral authority) and partial autonomy (when some power has interference in the development of the electoral function); finally, it is null when the electoral organ is subordinated to another power.

2. Financial autonomy

It is understood as the guarantee of economic independence from the organ, which in turn is reflected in the consolidation of political autonomy. It is total when the electoral organ elaborates, approves and exercises its budget. It is worth mentioning that there are very advanced cases in which the Constitutions themselves indicate budgetary percentages for the electoral organs. It is partial when the organ approves its budget but lacks powers to sustain it against the decisions of the Executive or of the Legislative branch. The financial autonomy is null and void when the planning of the budget can be modified by another power or organ.

3. Legal autonomy

This means that the organ is capable of self-determination, through regulatory power. It is full when the organ develops its own bylaws, has the power to initiate laws within their own areas of competence, and it is converted to an organ of control of the legality of the acts of the lowest electoral organizations. It is partial when its decisions are subjected to the review of another power, and its possibility of regulating is limited. It is null and void when some other power imposes its own norms.

4. Administrative autonomy

It consists in the power of the electoral organ to establish its own parameters of internal organization, as well as those of the electoral organizations that are in its charge. It is total when it has wide powers of administration of the material and human resources of the own electoral organ. It is partial when the electoral organ is limited in organization but has certain powers in assigning personnel. Finally, it will be null and void when the own internal organization depends upon other organs of the State.

IV. ELECTORAL AUTONOMOUS ORGANS IN MEXICO

The emergence of electoral organs in our country, independently of the particular characteristics of the organ, resulted from mistrust in the Executive Power or of the Legislative power in counting the elections. The autonomy of electoral organs in Mexico has been impulse by an historical and political need to deposit, in an independent authority of the political parties and the government to develop the elections. In the same way, the creation and consolidation of these organs it can be paired to the process of transition toward democracy or of democratic perfectionism.

At the federal level as well as the state entities, the system to organize and qualify the elections is the one doctrinally denominated as being in a State of diarchy by virtue of the electoral functions being divided in two organisms: one of administrative character, in charge of the substantive organization of the electoral process —generally independent from the traditional powers— (electoral institutes), and another one of jurisdictional character that can depend or not depend on Judicial Power (electoral courts).

V. THE CASE OF THE ELECTORAL COURT OF THE FEDERAL DISTRICT

Once noted the characteristics that any organization must possess that merits to be autonomous, we will analyze the regulations as much statutory as legal, that regulate the performance of the Electoral Court of the Federal District, because in this way it is possible to determine if this organ really enjoys full autonomy or, though, it is necessary to realize some modifications that make its consolidation possible as an electoral autonomous organ.⁷

• Legislation: Electoral Code of the Federal District.

• Family: Diarchy.

• Electoral organ: Electoral Institute of the Federal District and Electoral Court of the Federal District.⁸

• Political autonomy. It is total with regard to other organs of the entity. The Statute of the government of the Federal District indicates that the Electoral local Court will be an autonomous organ and the maximum judicial authority for the solution of controversies in this matter.⁹

• Financial autonomy. It is partial with regard to other organs of the entity. The Electoral Court of the Federal District approves the project of its own budget and it sends to the chief of government for its incorporation in the project of Budget of Expenditures of the Federal District.¹⁰

• Legal autonomy. It is partial with regard to other organs of the entity. In spite of the fact that the local Electoral Code states that the resolutions of the Electoral Court are definitive and unassailable,¹¹ the same ones can be modified if they are appealed across the Trial of Constitutional Review. In this area of autonomy it is important to mention that the Electoral Tribunal of the Federal District counts with statutory power.¹²

• Administrative autonomy. It is partial with regard to other organs of the federal entity, since an absolute Independence does not exist concerning the organization and internal structure of the own court. It should be mentioned that with just a promulgation of a reform to the statute of government of the Federal District on the part of the assembly, the structure and organization of the own court can be modified.

Thus, other features that allow us to evaluate the autonomy of the Electoral Court of the Federal District are:

Integration and designation. As it was indicated, in naming the holders of these organs, the Executive Power must not intervene. In the case of the integral judges of the local Electoral Court, these are named by a two thirds vote of the present members of the Legislative Assembly, at the suggestion of the Superior Court of Justice of the Federal District. With this, also it is guaranteed that no parliamentary group, by itself, can designate.

Immovability and removal. Though it is true that article 133 of the government’s statute of the Federal District establishes that judges of the Electoral Court of the Federal District will last at their post for eight no-renewable years, it is also true that recently we have witnessed that this disposition does not constitute a guarantee as such. Each time, all that is required for some of the party members, who are part of the local legislative organ, is to agree and publish a legal reform, or statute, for this indispensable guarantee to be vulnerable to change in order for the consolidation of a true autonomy of the jurisdictional electoral organs in our country.

Economic guarantee. It is indispensable that the holders of the autonomous electoral organs receive remuneration for their labor which is sufficient to guarantee an independent, impartial, and honest performance. Because of this, it becomes necessary that, in dealing with the electoral organizations of the federal entities, the salaries of the members of the organizations cannot be lowered during their term, as is stipulated in the Constitution.

Finally, in conclusion, we would like to mention that electoral organs, like autonomous organs, present important deficiencies in their institutional design that prevents them from reaching a full autonomy. Many of them do not have budgetary, administrative, juridical autonomy, and frequently their political autonomy is extremely fragile.

Due to the above, it is necessary to carry out a constitutional reform that contributes to the consolidation of the autonomy of the electoral organs. Our proposal is the following one:

VI. THE PROPOSAL FOR CONSTITUTIONAL REFORM

1. Political autonomy

In order to guarantee its statute of functional autonomy and its independence in the resolutions, avoiding the intervention of political parties in the electoral organizations, the following is proposed:

a) Addition to fraction III, paragraph 5, of article 41, so that is states: "The president of the council and of the electoral delegates will last in their term for seven years, during which they will be irremovable, and they cannot have other employment except in cases of responsibility in agreement with title IV of this Constitution".

b) Addition to article 116, fraction IV, clause c, so that it states:

IV...

c) The authorities that are responsible for the organization of the elections and the jurisdictional authorities that resolve controversies in the matter will enjoy autonomy in their functioning, independence in their decisions and of immovability during their term, except for the cases of responsibility contained in title IV of this Constitution.

c) Addition of paragraph 2 to clause f, of fraction V, first base of the constitutional article 122 that would prescribe: "The electoral organizations of the Federal District will enjoy organizational autonomy in their functioning, independence in their resolutions and their members’ immovability during their term, except in the case of responsibilities in agreement with title IV of this Constitution".

2. Financial autonomy

With the purpose of optimizing the functioning of the administrative and jurisdictional electoral organizations, we consider it convenient to allocate a percentage of the budget, be it a federal entity or, in its case, of the Federal District.

a) Article 41 constitutional. In order to guarantee true financial autonomy a fixed percentage of the budget should be appropriated for federal electoral organizations, adding a second paragraph to section III, in which the following is prescribed: "as a constitutional right to the financial autonomy of the Federal Electoral Institute, it is determined that annually it will receive 0.5% of the federal budget of expenditures".

b) Addition of a second paragraph to article 116: that would prescribe: "...the electoral organizations will receive annually a percentage of the budget of expenditures of the State".

c) Addition of a third paragraph to clause f of section V, the first base of the constitutional article 122 that would prescribe: "Annually both organizations will receive a percentage of the budget of expenditures of the Federal District".

NATURE OF THE ELECTORAL COURTS IN FEDERATIVE ENTITIES

Percentages:

Organs incorporated to the Judicial Power: 43.75%.

Autonomous organs: 53.125%.

Dual nature: 3.125%.

Total: 100%.

Notes
* Translated by Diana Hernández Holtzman.
** Researcher of the Legal Research Institute of the UNAM.
1 Caballero Ochoa, José Luis, "Los órganos constitucionales autónomos: más allá de la división de poderes", Juridica, Mexico, num. 30, 2000, p. 155.
2 See García Pelayo, Manuel, "El status del Tribunal Constitucional", Revista Española de Derecho Constitucional, Madrid, num. 1, 1981, p. 12.
3 Cárdenas Gracia, Jaime et al., Estudios jurídicos en torno al Instituto Federal Electoral, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2000, p. 23.
4 Idem.
5 García Pelayo, Manuel, op. cit., note 2, pp. 13 and 14.
6 Cárdenas Gracia, Jaime, op. cit., note 3, p. 27.
7 It is good clarify, though it is true that the electoral court of the Federal District can not be considered to be a constitutional autonomous organ, also is that it is a question of an organ of local character which autonomy derives from Government Statute of the Federal District, maximal law authority in the entity.
8 Articles 123 and 128, Statute of Government of the Federal District.
9 Article 128, Statute of Government of the Federal District.
10 Article 227, fraction II, clause i, Electoral Code of the Federal District.
11 Article 269, Electoral Code of the Federal District.
12 Article 227, fraction II, clause c, Electoral Code of the Federal District.