“Constitution, Law and Primary Elections”, an article by Dr. Leonel Fernández

February 23, 2018

Nine political parties that make up the so-called opposition block recently introduced a set of proposals regarding the bill on the political parties and reforms to the electoral law. Among the submitted proposals are those associated with advertising and propaganda; public funding, gender quotas and accountability.

However, when referring to the celebration of the political parties’ internal primaries to elect candidates for elected office, the
opposition block has suggested that these primaries be closed and synchronized, that is, that each party’s voter registration be used and that primaries be held on the same day by all political organizations.

By requesting that they be closed and synchronized it is clear that they are opposed to holding them openly and synchronized, that is, using the voter registration the Central Electoral Board.

Of course, this will be one of the great
issues to be discussed, as soon as the new parliamentary term starts on February 27. This is so, because the bill of the political parties that was being discussed in the National Congress could not be adopted by the legislative chambers within the period prescribed in the Constitution.

To reactivate the debate, the Christian Social Reformist Party recently reintroduced it before the House of Representatives; and, subsequently, the Central Electoral Board itself did the
same. For this reason, at this time both the Senate and the House of Representatives are discussing the aforementioned bill.

Regarding the holding of primaries by the political organizations for the election of candidates for elected office, the bills introduced by both the Reformist Party and the Central Electoral Board establish the same thing.

Both indicate that it is the responsibility of the political parties and organizations to decide the manner
in which the organization’s internal primaries will be held on a date determined by the competent body of the political party or organization.

That wording concerning the manner that will be used for the internal elections of the political parties will be held, as well as the date when they will take place, is correct.

This means that the bill on political parties cannot impose on the political parties or organizations, that the internal
primaries of those institutions be open or closed.

In both cases, several constitutional tenets would be disregarded, such as the freedom of the political parties, the internal democratic system and the right of association. With regard to the celebration of open and synchronized internal primaries, the Supreme Court of Justice, acting as a Constitutional Court, as we have indicated before, in its judgment of March 16, 2005, declared that law 286-04 was null, as it was
unconstitutional because it imposed to the political parties, in a compulsory way, a mechanism of open and synchronized primary elections.

The decision of 2005 of the Supreme Court of Justice was final and irrevocable; and in its article 277, the Constitution adopted in 2010, outlines the fate of this type of judicial decision, when it states that:

“All judgements that have been declared ‘res judicata,’
especially those issued by the Supreme Court of Justice while discharging its duty of verifying the constitutionality of the laws of the land, until the moment the current Constitution is adopted, cannot be considered by the Constitutional Court.”

Having been declared ‘res judicata’ and not being able to be considered by the Constitutional Court, those decisions are subject to the provisions of Article 184 of our Magna
Carta, which establishes that the decisions of the Constitutional Court are final and irrevocable and that they are binding precedents for government authorities and all State bodies.

Binding Precedent
What does the constitutional text mean when it affirms that the decisions of the Constitutional Court are binding precedents for government authorities and all State bodies?

It indicates that the constitutional decisions,
which are final and irrevocable, cannot be reviewed by another court of the land, and that they are binding precedents for government authorities and all State bodies such as the Senate, the House of Representatives and the Executive Power.

Neither the Senate nor the House of Representatives can approve in the bill of the political parties any provision that contradicts the decision of the Supreme Court of Justice in its 2005 ruling, at the risk of incurring in a
violation of the Constitution of the Republic.

In her essay on how constitutional legislation is connected to law-makers, Spanish professor María A. Ahumada Ruíz, argues that “government authorities are not simply required to comply with what the Constitutional Court mandates, but in the future they must also follow the guidelines established by the Court’s doctrine.”

In Peru, a ruling of the Constitutional Court dated
October 10, 2005, considered that “The constitutional precedent, by nature, has effects that are similar to a law.

That is to say, it reaches all the defendants and it is enforceable against government authorities.”

In Chile, Article 94 of the Constitution states that “the provisions that the Court declares unconstitutional may not become law.”

In turn, when referring to this issue,
Constitutional Law professor Eduardo Jorge Prats in his book Comentarios a la Ley Orgánica del Tribunal Constitucional y de los Procedimientos Constitucionales (Comments on the Constitutional Court Organization Act and Constitutional Proceedings), states:

“It is clear that the constitutional judgement has the capacity to bind and compel government authorities. If this were not the case, it would not make sense to establish a concentrated mechanism to monitor the
constitutionality of laws. Binding means that the constitutional judgement has the force of law.”

What are the implications for lawmakers that constitutional judgements have the force of law and the capacity to bind and compel the government authorities?

According to professor Jorge Prats, “this indicates that lawmakers cannot reinstate, into the existing legislation, precepts that have been declared unconstitutional by the
Constitutional Court.”

Moreover, as we had indicated in a previous work, the Dominican Constitutional Court, in its 84th judgment of 2013, established that the constitutional precedents “are a direct source of law binding all government authorities, including the House of Representatives, which comprises the Legislative Branch.”

Law Boundaries
The inability of the legislative bodies to, by law,
compel the political parties to organize open and synchronized primaries, not only comes from the fact that there has been a constitutional judgement, with authority of what has been declared ‘res judicata,’ but, in addition, because of the legal nature of the political organizations.

Then again, as it is not possible for the law to dictate that the political parties’ internal primaries be celebrated in an open and
synchronized manner, it cannot compel either, as the opposition block has suggested, for them to be closed and synchronized.

From the legal point of view, political parties are organizations constituted under private law. This means that they are not corporations constituted under public law, which implies that they are not state-owned. They are, rather, organizations integrated by citizens, of their own accord, in full exercise of their right to freedom of association,
who must be ensured the right t0 participate in the internal decision-making mechanisms of the organization.

Article 216 of the Dominican Constitution provides for the organization of political parties, groups and movements, and in this constitutional provision two crucial elements are enshrined. The first, that there is full freedom for the organization of political parties. The second, that the creation and operation of these organizations must be based on their
internal democratic rules.

On the other hand, once they have been created and are operated on the basis of their internal democratic rules, that is to say that they have the ability to self-organize and to function according to the criteria agreed upon by its members.

This modus operandi will be established, not because of any law, which would imply an interference of the public arena into the private realm, but abiding by the
statutes of the political parties, as well as other internal rules adopted by institutional congresses or other instances.

With regard to the primary elections for the selection of candidates, the overwhelmingly prevailing criterion on a global scale is that this is something that is to be decided according to the determinations of the members of the political organization.

Thus, it is an irrefutable right of the political parties to choose their
candidates for elected office, in accordance with the system they adopt, as the Central Electoral Board has indicated in the bills that it have been sent to the National Congress, for the purposes of its regulation.

Therefore, no law may impose on the political parties a particular system to select their candidates and a common date for all to celebrate their conventions. There cannot be, by law, open and synchronized primaries or closed and synchronized primaries. This
would be unconstitutional, illegal and unfair.

The parties are to decide, based on the legitimate exercise of their freedom, their internal democratic rules and the right of association of their members, and they are the only ones that have the right to decide, taking into account their internal rules, whether their primary elections should be open or closed; by acclamation or surveys; by coopting or designation; or by any other method they deem appropriate.

In its proposal on the internal primaries of the political parties, the Central Electoral Board is correct. The members of the political parties have the last word.