“Internal Primaries and Post-Truth”, an article by Dr. Leonel Fernández

April 16, 2018

When a judgment on constitutional issues is issued and is declared ‘res judicata,’ the judicial procedure is considered as concluded. And, this decision, therefore, is mandatory and binding on all government bodies.

This applies anywhere in the world, except, it seems, in the Dominican Republic.

In our country a judgment may have been issued on constitutional matters, as indeed it happened, by the
Supreme Court of Justice, and it has been deemed as non-binding on other organs of the State.

For example, the judgment dated March 16, 2005, stated that Law 286-54, which ordered political parties to hold open and simultaneous internal primary elections to choose candidates that would run for elected office, was declared invalid for being contrary to the Constitution of the Republic.

In an interpretation of Article 277 of our Magna Carta, some have
argued that the only thing that is binding by virtue of that judgment is that no other court of law can review it.

This may mean that, since what is being pursued is not a new judicial review of the subject matter but the introduction of a new bill that establishes the same thing that had previously been declared invalid, there would be no problem for the bicameral legislature to consider it.

As can be seen, the existence of the ruling of the Supreme
Court of Justice declaring invalid the measure that compels the political parties to hold open and simultaneous internal primaries is not being denied. Rather, the intention, through a mechanism of erroneous interpretation, is to limit the scope of the aforementioned legal decision, so that it cannot be the subject to a new review by another court.

The objective is to establish that it would not be binding on the other organs of the State; and it is believed that what was
considered invalid because of its unconstitutionality, can be ignored and reintroduced before the bicameral legislature, because, after all, a new court is not being asked to review it, but simply to acknowledge again what had already been declared invalid.

This misrepresentation or distortion of reality is what specialists in communication theory and in semiotics studies consider it to be a post-truth act.

Legal Nature of the

There are those who are more sophisticated in their arguments. They recognize, in fact, that the judgment issued by the Supreme Court of Justice, in the exercise of its constitutional functions, which declared Law 286-04 of 2004 on open and synchronized primaries by the political parties invalid, not only prevents it from being subject to review by another court but they also accept its binding nature on all agencies of the Dominican State.

They acknowledge, as it should be, that this binding nature is derived, first of all, from resolution number 1920-03, issued by the highest court of the land, which incorporated the concept of the constitutional block into our legal system, under which the constitutional decisions emanated from our judiciary have force of law on the Dominican State.

Secondly, they recognize that after the proclamation of the Constitution of 2010, this binding nature of the
decisions of our courts on constitutional matters is established in Article 184 of our substantive legal text.

In addition to admitting the argument previously presented, they have maintained that political parties are institutions of private law, protected by Article 216 of the Constitution of the Republic, which gives them the right to exercise internal democracy. They argue that in fact, by virtue of these considerations, no law can compel political parties or
movements to create a single method, open or closed, simultaneous or independent, for the election of their candidates for elected office. And, that this is the exclusive concern and freedom of each organization or political movement.

So far, all is perfect. But, according to this line of reasoning, it has been the Constitutional Court which, in its 192/15 ruling, considered that political parties are not institutions of private law, but "public and
non-government institutions with a partnership base."

And, of course, as it has been the Constitutional Court which has deemed that the parties are public institutions, although in its original opinion it considered that no law could force the parties to hold open and simultaneous primaries, now, due to the decision that the constitutional court adopted, they had no alternative but to accept this new reality, even if it was in conflict with their initial

There is no doubt that those who raise these arguments have a great sense of humor. Faced with the impossibility of hiding their original points of view, they modified them, making a whimsical interpretation of what had been considered by the Constitutional Court.

Our Constitutional Court, while stating that political parties are public institutions, clarifies immediately that they are of a partnership base and not governmental in

When the Constitutional Court declared that the parties are of a partnership base – and not governmental in nature – was it not pointing out that political parties are, by consequence, private in nature? Do we know in the Dominican Republic any public institutions which are not, at the same time, State institutions? Is it possible that there is any public agency that has a non-governmental character? In turn, can there be any State institution that simultaneously
has a partnership nature?
It is evident that using this line of reasoning only brings us to the intellectual delirium, the nonsense, and, again, to a distortion of reality. When pursuing political ends, this is part of what has been labeled as the post-truth.

Binding Precedents
A third way of dealing with the Supreme Court ruling that declared invalid Law 286-04 on political parties’ holding open and simultaneous primary
elections, starts with the recognition that, in reality, first, the aforementioned ruling is binding on all organs of the State; and second, that, in fact, political parties are private law institutions.

That would weaken the two aforementioned lines of thought. In essence, if the decision of the Supreme Court prevails over the bicameral legislature and the parties are not government institutions, then it is obvious that a new bill cannot be introduced for the same
purposes of the law that had already been declared invalid.
Still, what arises in this new line of thought is that the final and irrevocable decisions that establish binding precedents on all the organs of the State do not have the status of eternity clauses, that is, of something which is indefinitely invariable but that could be subject to modifications in the future.

This is a valid reasoning. It is true, the binding precedents do not have an infinite
character; they do not have to be decisions that remain unchanged in time. But neither can they be modified in an unpredictable or arbitrary manner, subject to the subjective will of those who would settle the conflict.

On the contrary, in order to modify a constitutional decision that is binding on all public institutions, factual or legal situations or circumstances must arise, which must be different from those that led to the first decision.

Moreover, the judges who know of that instance would have to justify, in a rigorous manner, the grounds for their decision, since they would be changing a constitutional precedent, which is considered to have been duly substantiated by justices with the integrity and competent judicial authority to do so.

Therefore, while it is true that a binding constitutional precedent can be modified in the future due to events other than those that preceded the earlier
decision, it is no less true that until such a modification could take place, what predominates in the legal system and prevails as part of the constitutional block is the ruling that declared the law under consideration invalid.

Up to now, what is an irrefutable truth is that Law 286-04, which enshrined the primary elections of the political parties as open and simultaneous, was considered as contrary to the Constitution, and by way of consequence, invalid.

All the arguments used in order to ignore that reality, undermine it, distort or subvert it, occupy a special place in the realm of the post-truth.