“The Law on Parties: Confirmed Unconstitutional”, an article by Dr. Leonel Fernández

May 16, 2019

Santo Domingo, D.R. – In its statement number 14/19, dated May 8, 2019, the Constitutional Court announced the decision made in relation to the direct lawsuit of unconstitutionality brought against paragraph III of article 45 in Law 33-18 on Political Parties, Associations, and Movements.

Article 45 of this law refers to the selection process for candidates to be nominated for popularly elected offices, and specifies the contents of paragraph III in the following terms:

“Paragraph III: The appropriate body in each political party, association, and movement in accordance with the present law to decide the type of voter registration or electoral registry to use in the process of candidate selection is as follows: Central Committee, Executive Commission, Political Commission, National Commission, or the equivalent of one of these; likewise it has authority to decide the mode and method to use.”

The constitutionality lawsuit against the aforementioned legal provision suggests that it damages the internal democracy of political organizations in blocking the participation of their membership in highly important decisions such as the modification of organizational bylaws.

How does this legal provision violate parties’ internal democracy and the right of its members to participate in decision-making mechanisms?

According to the plaintiffs alleging unconstitutionality, this violation occurs by granting competence to bodies not unauthorized by party bylaws to make decisions that, in consequence, impede members’ participation in those organizations.

Upon hearing these arguments, the Court tasked with ensuring the supremacy of the Constitution ruled in favor of the plaintiffs, indicating that “the expression of paragraph III of article 45 in Law no. 33-18 is not in agreement with the Constitution.”

Likewise, the high court nullified that part of the law, and declared that the correct constitutional interpretation is that it is the body indicated by the bylaws that has authority to determine the electoral registry to use in the candidate selection process as well as the mode and method to use in this process.

Original sins
This whole process began with a modification of the original proposal of the Central Electoral Council for the Law on Parties. This modification proposed the idea of holding simultaneous and compulsory open primaries as the sole candidate selection mechanism for popularly elected offices.

When this proposal arose, we immediately deemed it unconstitutional. This argument was based on the fact that in the year 2005, the Supreme Court of Justice, acting as constitutional court, declared invalid Law 286-04, which precisely established a system of simultaneous and open primaries.

That decision by the highest court of justice was binding on all state entities. Thus the debate should have ended there, with respect to that definitive and irreversible constitutional decision handed down by that high jurisdictional body.

Nonetheless, it did not. This legal provision, within the framework of the Law on Parties, was submitted and approved by the Senate of the Republic.

Upon the bill’s passage in the House of Representatives, there was an unfavorable reaction in public opinion and from different sectors of national life. Faced with this, the President of the Republic sent a letter to the presidents of the Senate and House, requesting that they look for alternative formulas to the original proposal of simultaneous open primaries.

A commission composed of members of both chambers examined the situation. After several meetings it elaborated, first of all, the criterion that instead of simultaneous open primaries as the sole option for candidate selection, a menu of several options be created, among them primaries; delegate, member, and director conventions; and polls.

Suddenly, in an unexpected manner and as the result of a mysterious alliance, arose the proposal that to hold the primaries, the top leadership (central committee, political commission, executive commission) would have the authority to modify the bylaws of political organizations and choose the method and electoral registry for the selection of candidates for popularly elected office.

Faced with this serious situation, our reaction was that this was an unconstitutional decision. But with a certain level of petulance, voices were raised indicating that the law was above party bylaws; and therefore it was necessary to give up the Byzantine arguments and apply the stipulations of the new legal provision as soon as possible.

The tribunal issues its ruling
Now, with the recent correct decision by the Constitutional Court, it’s clear that while the law is above party bylaws, the Constitution is above the law.

No longer valid is the proposal in the Law on Parties that, for example, in the specific case of the Dominican Liberation Party (PLD), it should be within the Central Committee’s authority to modify the bylaws and choose the mode of candidate selection and type of registry to use.

The Constitutional Court has just overturned that part of the Law on Parties, considering it contrary to the Constitution.

This decision by the Constitutional Court serves as an important lesson for political players. What we can take away from it is that there can no longer be, within a democratic state under the rule of law, shady confabulations to weave horrifying plots for private benefit, which despite being contrary to the letter of the constitutional, may proliferate.

Although there are already certain jurists seeking to denigrate the Constitutional Court’s ruling using false allegations and sophisms, the fact is that the ruling is binding and of immediate application.

Pressured by the deadlines laid out in the Law on Parties, in the PLD we held, on October 27 of last year, a meeting of the Central Committee.

In this meeting the holding of simultaneous open primaries with the Central Electoral Council’s registry were approved, as was the formation of a commission to adapt the bylaws to the Law on Parties; and that those new bylaws would be ratified by an Assembly of Party Delegates.

These three items approved at the meeting of the PLD Central Committee were the result of an agreement that should be respected. The only point is that as a result of the ruling of the Constitutional Court, what follows for the validation of the three agreed items, in line with PLD bylaws, is to convoke a special Congress that can be comprised of an assembly of delegates or a plenary session of the leadership.

Despite having traveled a winding path, the legal provision annulled by Constitutional Court brings clarity, dissipates some fog, and leaves the path open for a harmonious solution within the ranks of the PLD.