“Open and Simultaneous Primaries Continue to be Unconstitutional”, an article by Dr. Leonel Fernández

June 11, 2018

Article 42 of the Bill on Political Parties, Groups and Movements, approved by the Senate of the Republic last April, establishes that the only methods by which candidates running for elected positions can be chosen is through open and simultaneous primaries.

Obviously, this process contrasted to what was stipulated by the bill presented by the Electoral Board, where its Article 34 states:  “The political parties and groups will choose the
candidates in charge of popular elections, as related to the mechanisms established by the present Law and its statutes.”

By presenting it this way, the Electoral Board was complying with the 2005 Supreme Court ruling which declared null Law 286-04 which established that open and simultaneous primaries were the only method to be used to choose candidates for elected posts.

Moreover, in 2015 the PLD, PRM, PRD and PRSC, through the mediation of
the Electoral Board, Monsignor Agripino Núñez Collado and the presidents of the Senate and the Chamber of Deputies, agreed to collectively propose a bill on political parties and movements that would reflect the collective interest of society and establish greater guarantees to make the electoral processes more equal, transparent and balanced.

Thus, in April 2015 the Chamber of Deputies approved the referred bill, where its Article 31 stated that “the political
parties and groups will choose the candidates that are running in a popular electoral process, bearing in mind the selection mechanisms established by their statutes, be they electoral assemblies, conventions, congresses or internal primary elections.”

More recently, in 2017, a bicameral commission (consisting of senators and legislators) agreed through Article 34 that the bill being discussed would support the proposal made by the Electoral Board.

For these reasons, the approval of the bill by the Senate, which established that the political parties would hold open and simultaneous primaries, was followed by a wave of unfavorable reactions which came from various national sectors.

Adverse Reaction and Presidential Letter
Included among those sectors was the National Council on Private Enterprises (CONEP), which publicly expressed that it should be the political parties the ones
that should decide the method to be applied for the election of its candidates.  The National Association of Young Entrepreneurs (ANJE) also agreed with this method.

Meanwhile, the churches did not remain silent.  At the beginning, isolated voices were heard.  But later on, and officially, both the Catholic and Evangelical churches expressed their opposition to the proposal to impose the celebration of open and simultaneous primaries as the only way the
political parties could choose their candidates to elected positions.

Various civil society organizations also expressed their disagreement with the bill approved by the Senate. And the country’s most important newspapers expressed their position through strong editorials, while at the same time echoing the general opposition to the proposal.

An important group of 22 political parties, members of the Permanent Forum on Political Parties of the
Dominican Republic (FOPPPREDOM), expressed its disagreement with the Senate-approved bill; and 11 political organizations – members of the opposition block – equally rejected the legal imposition of the open and simultaneous primaries.

As an alternative, the opposition group proposed that the election of candidates be carried out based on the statutes and internal mechanisms of each political party.  In case of voluntarily selecting the primaries as the approved
method, that the primaries be carried out simultaneously, using their internal registries with the supervision of the Electoral Board.

Due to the ample national opposition generated by the bill approved by the senators, President Danilo Medina – and correctly so – proposed that Congress launch a dialogue that would include the political sectors in order to explore alternative options to the decision adopted by the Senate.

Our immediate reaction, in
light of the President’s petition, was to support it wholeheartedly.  We did so, because we are in full agreement with the permanent need to place the national interest above all personal or group interests within the political parties.

Prior to President Medina’s letter, various meetings were held between representatives of the political forces, headed by the Presidents of the Senate and the Chamber of Deputies, with the ultimate goal of finding
alternate solutions recommended to the Senate-approved bill.

Thanks to those meetings, the debate on the bill of political parties has evolved in a most significant manner.  It has gone from just being a bill approved by the Senate, which imposes open and simultaneous primaries as the only method to be used, to the criteria based on the right of each political party to choose the mechanism that best responds to its needs for the selection of its candidates, as
established by their statutes.

However, despite this last consideration, new positions are rising to the surface to determine the extent of right given to the political parties.

Possible Options
Regarding the acceptance of the new criteria regarding the rights of the parties to choose their particular method of selection, a new argument has been pushed forth indicating that open and closed primaries would no longer be
unconstitutional because they would no longer be the only applicable method for the political parties but would be one of the methods provided the political parties to choose their candidates as part of the rights given the political parties.

The truth is that despite this new proposal, the open and simultaneous primary would not be the only method available. However, the method would continue to be unconstitutional.

In an article published in the
Revista Española de Derecho Constitucional titled “The Right of Association of the Political Parties and the Legal Regulation of Primary Elections,” renowned jurist David Giménez Gluck stated: “When it comes to determining the Constitutionality of whether the law imposed upon the political parties forces the election of its representatives through primaries, there must be a clear differentiation between open and closed primaries, because of
the clear differences that exist between them.”

The open primaries, as explained by the abovementioned legal scholar, would “transfer a capital decision of the party to the citizens, suggesting an important renunciation to the associative self-organization and a legal imposition of the same standards would surely imply an unconstitutional impact on the right of association."

However, by making references to closed primaries,
the author argues that, quite the contrary, “the unconstitutional aspect is not, far from it, as evident, because in regards to the right of the party’s self-determination it borders on the limits of the principles of internal democracy and the defense of the rights of its members, who are part of the essential content of the right of association of the political parties.”

It is important to clarify that, in the Dominican case, the right of
association and the internal democracy of the political parties is stated in Articles 47 and 216 of our Constitution.

Also, by suggesting that the open and simultaneous primaries may be part of the options of the political parties to elect their candidates, during the dialogue held between the political forces it was maintained that the superior and competent institutions that relate to political organizations may promote the modification of the statutes in order to make
viable the application of this modality.

Obviously, the only superior and competent institutions that can modify the statutes of a political organization are those that represent the totality of its members or affiliates.  That is, its political assemblies or congresses.

In light of the above, the political parties would certainly have the right to choose the method it considers to be the appropriate one for the selection of its candidates.
 However, this method, in order to be legitimate and valid, must be in tune with the Constitutional precept that guarantees the right of its affiliates and the freedom of its internal democratic processes.

Closed primaries meet these conditions.  This means that they can be part of the options available to the political parties as a way to choose their candidates.

However, this is not so with open primaries because it implies a renunciation of
the rights of the members or affiliates, in favor of citizens in general, so that it is this process the one that chooses the candidates of the political parties.

Therefore, whether the primaries are open or simultaneous, whether it is the only method or an option for the political parties, they are unconstitutional and unacceptable.

That is the way it is, and there is no other option.