Based on a regulation and a resolution, both listed as 01-2021, the Central Electoral Council adopted, on Wednesday, January 27, two decisions establishing the order in which political parties would appear on the ballot. From 2024, as well as the public funding it would receive.
The criterion for adopting these two decisions was based on the idea of summing up the valid votes received individually by each political organization at the three levels held in the last elections, namely presidential, senatorial and deputies.
The impact that those decisions had on the national political scene was disconcerting. The method used by the electoral body to distribute economic resources to political organizations has aroused widespread rejection in the national public opinion, considering that it weakens the party system, affects the governing climate and violates constitutional and legal provisions.
The alarm generated by the JCE decision was so large that it caused the unusual fact that 20 organizations across the national political spectrum raised their voices and called for its change as unfair, outrageous and unfair.
It is difficult to find a precedent in the history of the Central Electoral Council in which 20 political organizations asked the electoral institution in writing to reconsider a decision, as it threatens the stability and survival of the party system.
It is even rarer to find an episode in which the first significant decision taken by a new plenary session would have provoked in general the political parties a reaction of indignation of such magnitude as that provoked by the stupid approach adopted by the electoral council.
NULLITY AND LEGISLATIVE SILENCE
The situation is more serious when we take into account the fact that the antecedent of the recent decision of the Central Electoral Council is found in Resolution no. 02-2017, of February 7, 2017, which established the same criteria for summing the votes valid three levels to allocate public funds to partisan organizations.
What happened to that resolution in 2017, designed in the same terms as the JCE now?
It was simply declared void. Thus, by a decision of the Superior Electoral Court no. 013-2017, of April 26, 2017.
In its operative part, the mentioned sentence has the following content: “It annuls with all its legal consequences Resolution no. 02/2017, issued by the Central Electoral Council (JCE), on February 7, 2017, for violating Articles 69.5 and 110 of the Constitution of the Republic, in accordance with the reasons set forth in this decision. “
Thus, there was already a precedent for a declaration of unconstitutionality of a resolution establishing as a criterion for allocating public funds to political parties, the amount of valid votes cast at the three electoral levels.
If there was already that antecedent of a declaration of unconstitutionality in a resolution establishing the same criteria provided for in Regulation no. 01-2021, why was it reiterated, despite its previous rejection?
This is so absurd, incoherent and absurd that perhaps we should find the answer by consulting the Oracle of Delphi. There is no legal provision setting out the methodology or criteria to be used to distribute public funds among political parties. It does not appear in the Constitution of the Republic. It is not found in party law either; and is absent in the legislation on the electoral regime.
The only reference or guide in this regard is Article 61 of Law 33-18 on political parties, groups and movements, which indicates the criterion that serves as the basis for the distribution of state funds.
It reads as follows: 80% (80%) of the parties that obtained more than five percent of the valid votes cast in the last election; twelve percent (12%) of those who reached more than one percent (1%) and less than five percent (5%); and eight percent (8%) of those who achieved zero percent zero points (0.01%) and one percent (1%) of the valid votes obtained. As can be seen, this legal provision does not specify which of the electoral levels is necessary to access public funds. Nor does it indicate that the Central Electoral Council must add, multiply, divide, mediate or perform any arithmetic exercise to determine the percentage corresponding to each party.
Consequently, when a political organization has reached more than 5%, more than 1% and more than 0.01% of the valid votes cast in the last elections, it has the legitimate right to participate in the public funding provided in our electoral legislation. .
MODIFY A PROCESSING PROCESSING
Given the shortcomings, lack of clarity or inadequacy of the law, it is the responsibility of the Central Electoral Council, in all matters relating to its competence, to exercise its regulatory power, as provided for in Article 215 of the Constitution of the Republic.
But he can’t do it in a whimsical or fanciful way. It must do so on the basis of the principles of equality, as well as those of reasonableness and favorability, set out in the application and interpretation of the fundamental rights and guarantees set out in Articles 39, 74.2 and 74.4 of our Magna Carta. The right to choose and to be eligible, freedom of association, freedom of conscience and religion, freedom of assembly, freedom of expression and freedom of movement, are fundamental rights enjoyed by political parties.
As this is the case, it is clear that the Central Electoral Council should have applied the above-mentioned principles of fairness, reasonableness and favorability when establishing the criteria for allocating funds to political parties on the basis of the percentages obtained in the last elections.
However, he did not do so. On the contrary, in clear violation of the Constitution, he established a summation formula by which he decided to allocate resources in the most unequal, irrational and unjust way imaginable to the detriment of democracy and the consolidation of the Republican party system. Dominican.
It did this by giving 80% of the resources to two parties; 12 percent in five games; and 8 percent in 18 games. The arbitrary and inappropriate arithmetic formula of the Central Electoral Council has, in practice, ignored the will of voters who gave an organization like the Fuerza del Pueblo, 5.69 percent of the valid votes in the presidential election, making it a majority party. with the right to obtain funding corresponding to that category
Like a ray of light in the middle of the gloomy darkness represented by Regulation no. 01-2021, for the consolidation of democracy and the consolidation of parties, Judge Dolores Altagracia Fernández Sánchez, full member of the Central Electoral Council, with her motivation dissenting vote, opens a path of hope to return to the path of reason, fairness and justice.
In his already anthological decision, he stated: “In our opinion, the criteria established in Regulation no. 01-2021, the amount of valid votes received individually by each party organization at the three levels contested in the last elections of July 5, 2020, does not apply by virtue of violation of the principle of equality set out in Article 39 of the substantive form and the principles of reasonableness and favorability. “
Congratulations, Magistrate!