VENEZUELA’S RECALL
REFERENDUM &
THE RULE
OF LAW
A constitutionally based recall referendum process
continues to unfold in Venezuela. In the midst of an increasingly delicate
political situation, the Venezuelan government is moving forward along the path
originally agreed to by the government and the opposition, in a process that is
being facilitated by and continues to have the full support of the Organization
of American States and the Carter Center. The Venezuelan government has
repeatedly confirmed its commitment to ensuring that this process will proceed
in a timely manner, within the rule of law, and in accord with the Venezuelan
Constitution and the spirit of democracy.
THE RULE OF LAW
Only in May of 2003 did the opposition agree to
obey the law and follow the constitution in their drive to oust Hugo Chávez,
who has twice been democratically elected by large majorities. Previously, the
opposition employed extra-constitutional means, including a failed coup in
April 2002, during which an un-elected business leader was appointed as
“transitional president” and immediately abolished the National Assembly, the
Constitution, and the Supreme Court. In 2003, the opposition shut down the
state oil company for two months, devastating the national economy. During this
opposition-led oil strike, State Department Spokesman Richard Boucher called for
early elections as a panacea for the country’s problems. His comments at a
State Department daily press briefing on December 13, 2002, are revealing:
”…We believe that holding
early elections is a key to a solution of this crisis and we would hope that
Venezuelans will work out a
formula for those
elections… we think the best way to resolve these political tensions is through
a democratic and constitutional
formula, such as early
elections...And I guess you could say that's our objective…We just think that's
the way to solve it.”
In endorsing the opposition’s call for early
elections in Venezuela, prior to the midpoint of President Chavez’s term, the
United States, in effect, encouraged the violation of the Venezuelan
Constitution.
Article 72 of Venezuela’s Constitution allows for
a recall referendum, but only ”once
half of the term of office to which an official has been elected has elapsed.” In this regard, it should not go unnoticed that
Venezuela’s Constitution, drafted by a democratically elected Constitutional
Assembly, was overwhelmingly approved in a 1999 plebiscite, and is the only
Constitution in the hemisphere that includes a recall referendum provision.
This provision states (in its totality):
Article 72: All magistrates and other
offices filled by popular vote are subject to revocation. Once half of the term
of office to which an official has been elected has elapsed, a number of voters
constituting at least 20% of the voters registered in the pertinent
circumscription may extend a petition for the calling of a referendum to revoke
such official's mandate.
When a number of voters
equal to or greater than the number of those who elected the official vote in
favor of revocation, provided that a number of voters equal to or greater than 25%
of the total number of registered voters have voted in the revocation election,
the official's mandate shall be deemed revoked, and immediate action shall be
taken to fill the permanent vacancy in accordance with the provided for in this
Constitution and by law. The revocation of the mandate for the collegiate
bodies shall be performed in accordance with the law. During the term to which
the official was elected, only one petition to recall may be
filed.--Constitution of the Bolivarian Republic of Venezuela
On December 13, 2002, prior to Mr. Boucher’s
statements at the State Department, the White House Press Secretary issued a
statement specifically calling for early elections, stating that “The United States is convinced that the
only peaceful and politically viable path to moving out of the crisis is
through the holding of early elections.”
JURISDICTION & REGULATIONS
Venezuela’s National Electoral Council (CNE) is
the main body with jurisdiction over the electoral process in Venezuela,
superceded only by the Supreme Court (known by its Spanish acronym TSJ),
Venezuela’s sixchamber Supreme Court. After a stalemate in the National
Assembly (concerning who should be appointed to the CNE board), the TSJ
intervened on August 25, 2003 and appointed a new CNE directorate, as is
permitted under Venezuelan law. At the time of this appointment, the CNE
directors were widely recognized by both the opposition and the government as a
fair and impartial group. Consider the following reports, issued shortly after
the CNE’s Board was selected:
• “Both sides have agreed
that the electoral board is balanced, with two members supported by the
opposition and two by the government.” (Forero, New York Times, 31/8/03)
• “Venezuela's Supreme Court
has achieved the remarkable feat of uniting supporters and opponents of
President Hugo Chávez in praise of its choice of members for the new national
electoral council.” (Gunson, Miami Herald, 27/8/03)
• “Congressional President Francisco Ameliach said
he foresaw no problems (with the Supreme Court’s decisions) because the council
appeared to be politically balanced. Two members are seen as pro-government,
two as pro-opposition and one as neutral…Opposition leaders said the council's
appointment was the beginning of the end of Chávez's government. ‘It opens the
way for democracy to prevail,’ said Hirum Gaviria, spokesman for the opposition
Democratic Coordinator.” (Toothaker, AP, 26/8/03)
• “The five new members of
the council represent a cross-section of Venezuela’s political landscape,
allaying concerns on both sides that the deck would be stacked as the country
readies for a recall vote, possibly this year. Cilia Flores, a leading National
Assembly member of the government coalition's Fifth Republic Movement, said the
new members look like "really respectable people."
Meantime, Henry Romas
Allup, a prominent opposition voice from the Democratic Action party, said the
Supreme Court's decision represents a "final blow to the government."
(Pals, Dow Jones Newswire, 27/9/03)
Since the selection of its Board, the CNE has
repeatedly proven its independence. For example, on October 28, 2003 the
Council barred President Chávez’s supporters from carrying out petition drives
to demand the recall of several opposition governors and mayors.
Prior to the signature collection process-- the
terms of which were established in advance by the CNE and agreed to by both the
government and the opposition-- government and opposition information drives
informed the public of the steps necessary to register their signature. Sumate (an opposition group formed with the aim of convening a recall
referendum), and the CNE produced public education commercials detailing the
recall referendum process, and giving instructions on how to sign the petition.
These instructions made clear that every person capable of doing so must write
his or her own name, birthdate, and identification number, in addition to
signing their name and making a thumbprint. Public television stations aired
broadcasts of CNE Board member Jorge Rodriguez explaining the process and
instructions. Among these public instructions was Circular Number 16, dated 25
November 2003, which noted that those unable to write for themselves could
request the assistance of a volunteer to fill out the petition:
“According to instructions
of the National Electoral Board, you are hereby informed of the following:
• In the case that the
signer is illiterate, blind, or of very advanced age, the signature collection
agent should write the first and last names of the signer, their identification
number and date of birth in the corresponding spaces of each of them, and have
the signer stamp their fingerprint in the space provided, and note proof of the
condition in the space provided.
• In the case that the
signer lacks their upper limbs, the signature collection agent should register
their information in the corresponding spaces, and note the observation in the
space designated for the fingerprint.”
This rule is clear: only people with disabilities
are exempted from signing the petition themselves and filling out all personal
information on their own. Much of the current debate regarding the incidence of
potentially invalid signatures revolves around the so-called “planillas planas”, the petitions placed in question by the CNE
because the same hand appears, in some cases, to have filled out all but the
signature; in other cases, the same hand seems to have filled out even the
signature. Such petitions appear to be in direct violation of the instructions
quoted immediately above. Moreover, over 375,000 signatures on the recall
petition—more than 10 percent of the total—have been found to belong to minors,
foreigners, dead people, and people who signed twice.
The Chávez government has consistently adhered to
the rule of law, proceeding within the terms of the Constitution, all
agreements entered into with the opposition (e.g. the May 23, 2003 Accord, see
attached) and the terms set by the CNE, an autonomous democratic institution. A
Declaration of the OAS and the Carter Center, issued March 2, 2004, notes:
“In this process, in
particular, we find sufficient controls, including security paper for the
petitions, full identification of the citizen with signature and thumbprint,
summary forms (actas) listing the petition (planillas) serial numbers during
the each petition form and a cross-check with the summary forms, a cross-check
of the names with the voters list, and a mechanism for appeal and
correction….The appeals and correction period was included in the process to
provide, in cases of doubt, an opportunity for citizens to reaffirm their
signatures, or to disavow their signatures in cases where their data has been
used against their will. The CNE has accepted some of our recommendations in
designing this appeals process. We support the efforts of the CNE and of the
promoters to work together to establish the guarantees necessary to ensure that
all of the citizens who wish to take advantage of this resource may do so. We
urge them to continue in this direction.”
In addition, the OAS and the Carter Center
affirmed in the March 2nd
Declaration that their presence
“throughout all stages [of the recall referendum process] has been continuous,
thorough, and comprehensive,” and they have been actively observing all
technical phases of the signature verification process. Those institutions’
“objectives are to assure that the process is transparent, complying with the
laws and regulations of the country; that it respects the will of the citizens;
and that the citizens and the actors have confidence in the process and the
results.” Finally, the OAS and the Carter Center call for continued adherence
by all parties to the May 23, 2003 Accord, and for a peaceful, democratic, constitutional
and electoral solution to the current situation, echoing Resolution 833 of the
Permanent Council of the OAS.
President Chávez has repeatedly reaffirmed his
commitment to abide by any ruling issued by the CNE. In contrast, the
opposition has publicly denounced the ruling, made on March 3rd, which
confirmed the validity of only 1.83 million of the approximately 3.1 million
signatures handed in to the CNE. It should be noted that 2.4 million valid
signatures are needed to proceed with a presidential recall.
Three hundred seventy five thousand, two hundred
forty one (375,241) of the signatures were unanimously deemed invalid by the
Council because they were seen to be fraudulent, including signatures linked to
underage children, deceased persons, and those not on the electoral registry,
including foreigners; an additional 1,192,914 signatures await a definitive
ruling on their validity. Those signatures in question will be made available
for examination by the Venezuelan public between May 27th and May 31st, to confirm that they are indeed valid.
A definitive ruling by the CNE
concerning the number of signatures is expected to come prior to the midpoint
of President Chavez’ term in office, August 19, and may come as early as June.
The CNE and, significantly, the OAS and Carter Center, as quoted above, agree
that the verification
process is the best way to proceed.
Both institutions will play an active role as international observers during
the repair period.
MOVING FORWARD, PRESERVING DEMOCRACY
AND THE RULE OF LAW
The Presidential Recall Referendum process has
overcome a series of hurdles in recent weeks, including technical wrangling
with the country’s Supreme Court. The “repair process” has been advanced, and
is will be held from May 27th to May 31st; its terms are being finalized between the opposition, the
Government and the National Electoral Council (CNE). A statement issued on 15
April 2004 by the OAS and the Carter Center noted that “We welcome the efforts put forth by the
authorities of the CNE, as well as the representatives of the Democratic
Coordinator and the Ayacucho Command, to a transparent, simple, secure and
agile mechanism to conclude the recall referendum
petition process.”
In the interest of maintaining a strong democracy,
and ensuring that the voices of the Venezuelan people are heard, the “repair
period” was proposed to give those whose signatures are in question, a chance
to affirm their desire for a vote on Chavez’ presidency. Parliamentary leaders,
including the coalition of parties and social movements that supports Hugo
Chávez and the opposition Democratic Coordinator have been working together,
along with the CNE, on negotiations to move the referendum process forward,
ensuring that the will of the Venezuelan people is heard. The OAS and Carter
Center statement of April 15th notes, “We call…on all sectors of society and
national institutions to contribute to the goal of achieving a peaceful,
democratic, constitutional, and electoral resolution of the crisis, as was
expressed in the accord of May 29, 2003. We maintain our commitment to continue
collaborating with the authorities and the people of Venezuela.”
The United States, too, must maintain its
commitment to international collaboration toward the strengthening of democracy
in the Hemisphere, and allow this democratic process to unfold unhindered.
Venezuela Information Office
733 15th Street NW, Suite 932
Washington, DC 20005
(202) 347-8081
The Venezuela Information Office is dedicated to informing
the American public about contemporary Venezuela, and receives its funding from
the government of Venezuela. Further
information is available from the FARA office of the Department of Justice in
Washington, DC.