“If you get to a point where existing institutions don’t want to submit to the popular ones, you’ll have to eliminate the settings.” -Noam Chomsky-
L.The new Central Electoral Council (JCE), in a legal-political act that contradicts the science of constitutional, electoral and controversial administrative law, in addition to being incompatible with the logic of political science, has just “erroneously” resolution 01-2021, dated January 27, 2021 to the Fuerza del Pueblo Party in its majority party category, in a grave fact that desecrates the sacred will of the voter expressed by citizens through secret and free elections as a human and fundamental right, to which the State and its other institutional bodies must submit.
In this sense, all actions of an electoral body should be preceded by the principles of independence, impartiality, neutrality, efficiency and transparency; Therefore, if its independence and neutrality are not guaranteed, neither in the constitution and laws, nor in the practice of its decisions, then this becomes a powerful tool for the execution of fraud, which can be given through renunciation, omission, coercion or “interpretation”.
That is why the “electoral administration” is given a category of maximum legal-political importance, since it affects political actors of the opposition, the government and the voters and, because of the consequences for the latter, becomes a socio-political problem. change the will of the voter.
In fact, after analyzing and examining the aforementioned resolution 01-2021 issued by the JCE with regard to article 61 of law 33-18 on the distribution of state economic resources to parties, groups and political movements, in light of the case law as a source From the law and the principles enshrining legal doctrine, we can say that due process has not been observed, which in turn affects, removes and denatures the proper administration of justice and goes the opposite direction of the constitution of the Republic in its art . . 74, numbers 2 and 4. Let’s see:
On September 19, 2019, by ruling TC / 0375/19, the Constitutional Court declared unconstitutional and annulled the only paragraph of Article 2 of Law 157-13 regarding the so-called ‘drag vote’ at the deputy level. level of senators, for this purpose the ‘fractional vote’ was established in the three (3) electoral levels to which the voters were entitled, giving the collective will the right to separate the right to vote between the various nominated candidates. by the various political parties in the election contest, regardless of their membership or sympathy.
On the basis of the foregoing, there is no doubt, nor does it give rise to any interpretation, that if the members of the JCE plenary wanted to know which of the electoral levels was the most representative in choosing what to categorize majority party or not , it would undoubtedly be that of the presidential level, not only because it was the one with the highest votes where the will of the voters was clearly expressed, but also because this is most appropriate in terms of the expression of freedom of election of the universe of voters, as it is the only one of the three levels of national and international election, making it the representative category of “universal.”
And it is precisely in this election tier that the People’s Force is the addressee of the sovereign decision of the people with the number of 233,538 votes cast, which makes up 5.69% of the universe of participants of the valid votes cast in the election process; as certified by the “Definitive General Relation of the Electoral Count” officially issued by the JCE itself.
It is clear that the People’s Force exceeds the 5% threshold set in Section 61 of Law 33-18 on the distribution of the contribution of State resources.
As if this were not enough, it is worth highlighting the technical and qualified opinion sent to the JCE plenary before the questioned resolution 01-2021 is evacuated by the national election director himself, in which he following states, I quote:
Then the question arises: which of the three levels will be taken into account to determine the positioning, if they meet on the same voting day? (…)
Based on the different adoption of criteria for determining the positioning of the political organizations after the ordinary general elections and also the placement of the boxes on the ballot papers, we allow the weighting to the Honorable Plenary of the Central polling station. of the application of the criterion of the largest vote obtained by the parties at one of the election levels during the last elections of July 5, 2020, due to the fact that this process was influenced by the presence or impact of COVID-19, which made the actions of political organizations and their candidates difficult ”.
Another aspect that invalidates the contested resolution is the disobedience of due administrative procedure by the plenary of the JCE in relation to Article 69, No. 10 of the Magna Carta, of Law 107-13 on administrative procedure, in the Articles 30 and 31., as a guarantee for the principle of transparency, participation and motivation of the administration; Subsequently, the plenary suspiciously reversed the legal process by first requiring the parties to give their “general” opinion on the above resolutions and consciously adhering to the basic requirements of publicity, communication and prior consultation of the proposed text. circumvent, as commanded by the aforementioned law in Article 31 thereof, which constitutes a violation of administrative justice.
It follows that in a “discretionary” way the JCE retained for itself the hidden purposes that “led” it to that erroneous decision, giving the actors in the trial and the legal subjects the legitimate opportunity to freely express their judgments and arguments. . to the regulatory standard, in addition to a blatant violation of the law by applying, outside any established standard, some sort of ‘arithmetic formula’ or ‘fictitious equation’ to obtain the percentage of ‘expropriation’ from a questionable average. Apart from the most fair, equitable and egalitarian criterion, which advocates the principle of reasonableness.
Finally, after analyzing this situation, it is quite clear that no person, public power or law can be above the constitution of the Republic, and in the face of a questionable space, gap or shortcoming in the laws, command the same essential laws in its Article 74 (4) on the interpretation of the rules related to fundamental rights and their guarantees, so that the decision is taken in the most favorable sense for the person who has the protected right. As such, it is regrettable that after the country has gone through the nightmare of the JCE, which has plunged that electoral power into the greatest quagmire of discredit, this new government, in which we citizens place our hopes, debuts in an act of ignorance. about the will of the voter.
For these reasons, we think that this new JCE, in which we have all trusted in one way or another, is the obligation to the citizens, the nation and the world to correct this error, because it is wise to correct this error , especially if it is for the true power of the sovereign Dominican people.