“Concurrent Open Primaries are Unconstitutional”, an article by Dr. Leonel Fernández

December 15, 2017

In articles 36 and 37 of the Political Association and Party Bill introduced by the Central Electoral Board to Congress in February 2017, it is maintained that it is the responsibility of political associations and parties to regulate internal primaries and hold them on dates determined by their governing bodies.

Furthermore, it is stated that “It is the responsibility of political associations and parties to decide how primaries are
organized…” In the Central Electoral Board’s bill, it isn’t dictated to political parties that primary elections should be open, using the Central Electoral Board’s electoral register, or closed, using the political party’s own electoral register of its affiliated members.

In other words, according to the Central Electoral Board’s bill, each party has the freedom to choose the mechanism that it finds most
convenient to achieve the party’s objectives.

This is the basis of what is established in Article 216 of the Constitution of the Dominican Republic, which states: “The organization of political parties, associations, and movements is free, subject to the principles established in this Constitution.”

It continues: “Their structure and functioning should be supported in relation to internal democracy and
transparency, in accordance with law.”

Given its conception that political parties are free organizations that possess “an internal democratic freedom,” the Constitution itself would be contradicted by the imposition of any manner of legal limitation to the full exercise of this legally conferred constitutional freedom.

This was one of the judgments proclaimed by our Supreme Court of Justice, acting in its function as the
Constitutional Court, in a ruling dated March 16, 2005 that nullified Law 286-04, which had established a system of concurrent primary elections with secret and direct universal suffrage.

Though unconstitutional it may be, the proposition of establishing a law of concurrent primary elections using the Central Electoral Board’s electoral register is nothing new in the Dominican Republic.

It had already been attempted 13 years ago through the
approval of the previously referenced law.

By virtue of a Direct Action of Unconstitutionality initiated by the Democracy and Law Foundation, put forth by the current president of the Central Electoral Board, Dr. Julio César Castaños Guzmán, the nation’s highest court of justice considered the following arguments: a) That Article 104 of the Constitution of the Dominican Republic of 2002 states that “the organization of political parties and
organizations is free and in accordance with law…;” and that “the enshrined ability of free organization of political parties and organizations is further legitimized by free association and assembly without arms for goals of a political, economic, social, cultural, or other nature.”

b) “That the aforementioned constitutional rulings do not only enshrine the general principle of liberty of association in political matters, but also
that the processes chosen by them for control of their electoral functions is merely an external matter that is characterized by the non-intervention of the State in the area of citizens’ rights to political association, which preserves their intended private nature, since actions carried out by them (the parties), although under the framework of civil service due to their forming part of the electoral function do not represent or constitute a state function.”

c) That even if it is the case that some nations (Argentina, Chile, and Uruguay) have included in their national legal frameworks a system of primary elections organized and controlled by the federal authorities through universal, discrete, and secret voting with participation from the entire electorate for the selection of candidates and political associations, like the one favored in the Dominican Republic under Law 286-04, it is nonetheless true that this system has been
substituted for a “traditional system that allows the elector to choose the candidates of the party of which she is a member through a majority vote cast in separate conventions held by each party, and additionally, because it was believed that the former facilitated antidemocratic combinations to the detriment of the most suited candidates.”

In its recitals, the Supreme Court deliberated on other matters related to the Convocation of Electoral
Assemblies that were considered to be unconstitutional in the law under legal challenge. These were related to calls for Electoral Assemblies for purposes other than those outlined in prior legal precedent and to the newly-proposed sources for the provision or resources to offset the needs that would be created with its implementation.

It was due to all of this that the nation’s highest constitutional authority decided to declare that the law seeking to
establish a system of concurrent primary elections through secret and direct universal suffrage was unconstitutional.

A Senseless Discussion
If, as we have just proven, the Supreme Court of Justice decided to declare unconstitutional political parties’ celebration of concurrent open primaries, for what reason would it insist now in inserting them into the Political Association and Party Bill? The reason is simple: because it is
feigning ignorance of what is stipulated in Article 277 of the Constitution of 2010, which states the following: “All judicial decisions based on irrevocable precedent, especially those dictated in the Supreme Court of Justice’s exercise of its constitutional duties, until the moment of the proclamation of the present Constitution cannot be examined by the Constitutional Court.”

In interpreting what is recorded in our Magna Carta, some have
considered that what Article 277 implies is that judgments based on irrevocable precedent cannot give rise to a process of judicial revision; but they can engender the introduction of new pieces of legislation for the same purposes or ends.

This, however, is not the case. Article 184 of our Substantive Law enshrines a binding precedent for all decisions of the Constitutional Court possessing a definitive and irrevocable nature; and Article 6 of the Constitution itself
stipulates that “Any law, decree, resolution, regulation, or act contrary to this Constitution is invalid and void in its own right.”

This means that the mere introduction of a bill for purposes that were already declared to be void for their unconstitutionality would also become void in its own right.

The Constitutional Court declared as much in its Judgment No. 84 of 2013, in which it established that constitutional precedents
“constitute a direct source of binding law for all public authorities, within which the Chamber of Deputies, and legislative power, resides.”

Consistent with what has been previously established, the president of the Central Electoral Board, Dr. Julio César Castaños Guzmán, has maintained that “the purpose of Article 277 of the Constitution impedes affairs that gained irrevocable precedent prior to the promulgation of the Constitution of 2010
from being recognized by the Constitutional Court; as a result this issue is precluded from consideration, which is something that the National Congress must take into account when considering the Political Association and Party Bill.”

For its part, the Superior Electoral Court, in its Declaration 23-2017, dated September 23, 2017, considered that it is the party members who should elect their own candidates during an internal convention using the
party’s own electoral registers.

To this, Castaños added: “To accept the contrary would be to provoke political parties to conduct themselves in a vulnerable manner that distorts the purposes and ends for which they have been conceived…”

Following these conclusive arguments from the president of the Central Electoral Board and the incontrovertible decision of the Superior Electoral Court – the highest electoral authorities
in the country – one might assume that the debate should have concluded.

It hasn’t happened that way. However, not recognizing what is recorded in Article 277 with regard to the Political Association and Party Bill would be akin to opening Pandora’s Box, in which all judicial cases that had gained irrevocable precedent would be subject to new consideration from all jurisdictional institutions.

This, of course, would put the
country’s legal system, business climate, and the social and democratic rule of law, enshrined as a constitutional principle in the national legal system, at serious risk.

The imposition of a system of concurrent and open primary elections on the country’s political parties would be an unconstitutional act and an institutional outrage.