The transparency of the electoral power

IS THE NATIONAL ELECTORAL COUNCIL (CNE) AN IMPARTIAL BODY ?

1. Article 19 of the Basic Law of the Electoral Power, passed in October 2002 by the National Assembly (AN), states that the Postulations Committee is comprised of 21 members. This Committee is in charge of evaluating and presenting to the National Assembly candidates for the National Electoral Council (CNE) which, by definition, must be comprised of members of civil society (Article 295 of the Constitution). Eleven of the CNE's 21 members are congressmen. The official position whereby congressmen can be members of the CNE since they are members of civil society contradicts not only Article 296 of the Constitution, but also a November 21, 2002 ruling by the Supreme Court of Justice, which reads:

• ". As the State is comprised of citizens who belong to political associations, civil society must be different from these associations, whose representatives are parties or political groups. Consequently, political organizations do not comprise civil society but rather the political society whose fields of action are defined by the Constitution and the body of laws. Therefore, any kind of party participation by the body corporate corrupts their condition as organizations representing civil society." ( No. 1395, Exp.00-1901, of 21 November 2000, on the case of the Governors against the Ministry of Finance.)

2. Article 296 of the Constitution states that the CNE must be appointed ".by the National Assembly by two thirds of its members". However, the current CNE was appointed by the Supreme Court of Justice on two separate occasions, on August 25, 2003 and on January 20, 2005.

3. In view of the institutional void resulting from the National Assembly's failure to appoint the members of the CNE, on August 25, 2003 the Supreme Court proceeded to appoint them "taking into account consultations carried out with the political parties represented in the national Assembly." This procedure contravenes Articles 294 and 296 of the Constitution and Article 9.4 of the LOPE, aimed at insuring the impartial membership of an organization that should be free from party affiliations.

4. In its first designation of the CNE, the Supreme Court overstepped its authority regarding its power to offset a "legislative dereliction of duties" by appointing the CNE's Secretary, William Pacheco; the CNE's Legal Council, Andrés Brito; the members of the subordinate bodies (the National Electoral Junta, the Registry and Electoral Office Commission and the Political Participation and Financing Commission) and the members of the Political Participation Council. The Supreme Court also overstepped its authority by appointing the CNE's President and Vice-President, a decision that should be taken internally by the CNE's five directors.

5. Later, on January 20, 2005 , following the resignation of the CNE's President and Vice President, the TSJ appointed the CNE's new members, without any previous consultations with the National Assembly. The appointment of these new CNE members represented a clear violation of Article 13 of the LOPE, which states that the deputy directors will fill the vacancy resulting from the temporal or permanent absence of the principal directors. Once again, the Supreme Court did not wait for the National Assembly to attempt to fill these vacancies and appoint a definitive CNE.

6. According to the Constitution, the CNE should steer clear of any political affiliation and partisan discussion; however, the TSJ never hid the fact that it was selecting the members of the CNE according to guidelines discussed with the political parties. Thus, the CNE that was appointed on August 25, 2003 reflected this political maneuvering: three of its members, Francisco Carrasquero, Oscar Battaglini and Jorge Rodríguez were viewed as government sympathizers, whereas the other two members, Ezequiel Zamora and Sobella Mejías, as opposition sympathizers. The CNE Directors' political sympathies was clearly demonstrated by that organizations' polemical decisions, beginning with the September 13, 2003 ruling to reject the signatures presented on August 20, 2002 by the opposition to request a Presidential Recall Referendum. The political leaning and discretional nature of the CNE was noted even by international observers, who referred to it in their August 15, 2004 Report on the Presidential Recall Referendum.

7. The CNE's three-to-two alignment in favor of the Government changed considerably on January 20, 2005 , when Tibisay Urdaneta and Oscar León- Uzcátegui were appointed principal members, bringing the pro-government membership to four-to-one.

8. The pro-government leaning of one of the CNE members, Franscisco Carrasquero, was further confirmed by his appointed to the Supreme Court of Justice by a National Assembly in which pro-government factions enjoy a simple majority.

9. The aggressiveness with which some members of the CNE - Rodríguez and Battaglini - refer to representatives of the opposition and civil society is well documented.