David Smilde and Hugo Pérez Hernáiz
In December the Venezuela’s National Assembly (AN) finalized the long overdue and long drawn out designation of three new rectors for the National Electoral Council (CNE). The designations were much anticipated for two reasons.
First, since they require a two thirds majority of the AN, which Chavismo does not have, there was much speculation that this could be an issue in which Chavismo and the opposition would have to work together and could lead to a degree of dialogue and agreement.
Second and most importantly, given the degree of polarization and conflict in Venezuela, the declining popularity of the Maduro government, legislative elections in 2015 and a likely recall attempt in 2016, the CNE is perhaps the single most important institution for keeping Venezuela within the space of democratic politics. In recent years the CNE has shown itself incapable of ensuring a fair campaign, failing to control the government’s grotesque use of state resources, institutions and employees on behalf of its candidates. But it has continued to run a clean election day. A serious change in the composition of the CNE rectors, however, could have undermined the strength of Venezuela’s election-day platform.
The CNE has five rectors who each have two alternates. They serve seven-year terms and can be re-elected twice. Three rectors’ periods expired in April 2013. However their periods were extended due to the death of President Hugo Chávez in March 2013, which required snap presidential elections in April 2013 and led to the postponing of municipal elections to December 2013.
In April 2014 the National Assembly took up the task and designated a committee of six pro-government and five opposition deputies to select the members of civil society would serve on the Electoral Nominations Committee (CPE).
In late October the AN approved the CPE that had been vetted in the previous months, consisting of twenty-one members, including eleven from the National Assembly itself and ten from civil society. Six of the AN members were from the Partido Socialista Unido de Venezuela (PSUV), five from the MUD. Among the ten civil society members six were from organizations with close links to the government the other four with out clear political ties. PSUV legislator Blanca Eekhout was designated to be President of the committee.
Between October 31 and November 20 the CPE accepted a total of 245 nominations for the position of rector, including Sandra Oblitas for a 2nd term and Tibisay Lucena for a third term. Between November 26 and December 10 the CPE evaluated the nominations, reducing the list to 124 candidates.
However, the opposition contended that many of the selection decisions were being taken by the government majority of the committee and not by consensus. Before the CPE started the AN voted that it could designate candidates with a simple majority. The opposition objected to this decision arguing it should be a two thirds majority.
The list produced by the committee was then published on December 10 in the local press, and on December 13 on the National Assembly’s web page for public review.
Opposition NGO Sumate, presented objections to 66 candidates. But these objections were dismissed on the grounds that they were presented on December 16, one day after the established six-day objection period if the day of the publication is included. The committee did consider 67 objections introduced by Vente Venezuela, the organization led by opposition leader Maria Corina Machado. She argued that candidates should not by militants of political parties. But the committee finally rejected the objections.
The final list of candidates was submitted to the AN. The committee proposed Lucena, Oblitas, and Marco Octavio Méndez as the three main rectors of the National Electoral Council. The AN had ten days to appoint the three new rectors and six substitutes. Actual appointment requires the vote of a two thirds majority of the AN. However, as opposition deputies objected to the list the CPE submitted, most specifically Lucena and Oblitas who they said could not provide the Venezuelan people with confidence in the CNE, a two thirds majority was not obtained.
On December 22 AN President Diosdado Cabello asked the Supreme Court (TSJ) to declare legislative omission and designate the three rectors and their substitutes. They did so by the 27th, with one important change, bringing in Luis Emilio Rondón in place of Méndez. The new rectors were sworn in on Monday the 29th.
Reactions were quick in coming. Executive Secretary of the opposition coalition (MUD) Jesus Torrealba said “We will not accept little spaces or quotas. We demand fulfillment of the Constitution.” He justified their opposition saying “Venezuela needs a MUD that is an alternative to power, not an opposition that negotiates its survival.”
Maria Corina Machado called the designation a “premeditated deception” and called on the opposition rectors who had been chosen to withdraw their names or be part of “a constitutional fraud of grotesque proportions.” Henrique Capriles had a similar reaction. By Twitter he said “And are those [designated rectors] from the “opposition” going to accept an unconstitutional naming to the CNE via the TSJ? Or was this a farce negotiated from the beginning behind the back of the country?”
Indeed one of the opposition alternate rectors, Pablo Durán, did not accept his naming saying he did not want to contribute to divisions within the opposition.
It should be said that Tibisay Lucena and Sandra Oblitas being reelected is entirely constitutional as is the figure of legislative omission. Indeed in 2003 the TSJ designated CNE rectors in the same situation.
However, legal scholar Jose Ignacio Hernández provided a detailed analysis of unconstitutional aspects this time around. The most important are the following.
- There was no actual legislative omission as the ten days allowed for debate had not concluded.
- In contrast to the 2003 case there was no actual trial regarding whether to declare omission, with testimonies of the various participants.
- There was no order with a time frame demanding the AN address the omission.
- The TSJ actually designated the rectors, instead of demanding the AN do it and providing guidelines.
- The TSJ did not mention the provisional character of the designated rectors.
All of this, of course, further erodes perceptions of the CNE. Their ill-mannered and uncooperative responses to opposition demands regarding the 2013 contested election seriously affected public perceptions of their independence and integrity. UCAB research shows that less than half of the population thinks the CNE is autonomous and impartial. This battle will do further damage. And this of course strengthens the hand of opposition radicals who argue that the solution to the current political crisis will not come through elections.
However, analysts have warned the opposition against dropping out of the electoral game just when the situation favors them. Pollster Luis Vicente Leon argued that Venezuela’s democratic institutions are indeed unfair, as they have been for some time. “But now there is a big difference: all of this is happening in a country that supports neither the president, nor the party, nor the government nor the economic model they are proposing. And this is the time when we are going to dismiss an election? Just when the gap against the government is huge?”
Another pollster, Felix Seijas Jr. argued that opposition radicals should avoid demotivating the vote. “Radicals should direct a frontal message against the government, assigning blame. For the rest [of the opposition] it is necessary to go beyond blaming and present solutions.”
Indeed, for the opposition, the outcome could have been much worse. Of the four pro-government rectors in the CNE Lucena and Oblitas were the most moderate. And Rondón is mainly a technocrat but identified by most as opposition in political leanings.
It is worth quoting at length an interview with outgoing opposition rector Vicente Diaz. He pointed out that the TSJ had named CNE rectors before, but that the designations were provisional and the rectors did not complete their terms “These rectors are provisional until the AN decides the contrary. The TSJ cannot substitute the AN but it can cover a temporary absence.”
Regarding the two pro-government rectors Lucena and Oblitas, Díaz said, “I know those two rectors well and neither of them would be capable of altering votes. Even if they wanted to they couldn’t. With the electoral system that has been developed it’s impossible.”
Díaz had even more positive words for the new opposition rector.
Luis Emilio Rondón is the person who knows more about elections than anyone in the country. He has been in the CNE for more than 20 years, he has a Master’s in electoral issues, has managed all of the areas of the institution and knows its officials. If there is someone who won’t miss a beat it’s Rondón…He was postulated by the opposition, even though they later decided not to vote. Nobody doubts his honor and his political position with respect to democracy. He is the rector with most experience in the institution. Without a doubt there are a set of eyes and a voice that represent the opposition in the CNE.