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
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
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.
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.
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
is well documented.