The situation over the elections for governor of Barinas has gotten more and more complicated with the Supreme Tribunal of Justice (TSJ) ordering new elections for January 9th, 2022. While the Electoral Chamber ordered to stop counting votes, the Constitutional Chamber issued a curious decision which not only benefits the ruling party (PSUV), but also manages to contradict its own previous reasoning.
First, some context.
On November 21st, 2021, Venezuela held regional elections, with over 3,082 publicly elected offices being decided in what were the first elections with the opposition’s official participation after a three-year boycott.
All but two states were called that same night. Apure would soon be announced as a PSUV victory, but the race in an adjacent state in the Venezuelan Llanos region grabbed all the attention: it was for the governorship of Barinas, where PSUV’s candidate was leading by only 673 votes with 10% of votes yet to be counted.
Barinas, a state close to the border with Colombia and home to mostly farmland, has a symbolic relevance for the government. It’s the birthplace of the late Hugo Chávez, and it’s been under the rule of his father and two of his brothers (Adán and Argenis) for over 20 years.
With the count almost done, everyone awaited what would be an unexpected political upset in an election where the government had scandalous advantages. Freddy Superlano, the opposition candidate, was on the verge of taking PSUV’s home state right out from under their noses. But then, on November 29th, the Electoral Chamber of the Supreme Tribunal of Justice issued two critical decisions.
The Electoral Chamber’s Decisions
The court’s first decision, Number 78, stated that Adolfo Superlano, a politician from Barinas (no relation to Freddy Superlano), had filed a motion asking for preventative measures aimed at “protecting” the public’s voting rights. Adolfo Superlano said in his motion that there was a “tense political climate,” and that Freddy Superlano was the subject of open criminal and administrative proceedings.
The Electoral Chamber received a resolution issued by the Office of the Comptroller General, dated August 17th, 2021, whereby Freddy Superlano had been barred from holding public office. The TSJ, therefore, ordered the National Electoral Council (CNE) to stop the count of votes until the matter was resolved.
That same day, the TSJ published decision Number 79, in which they confirmed that Freddy Superlano couldn’t hold office and ordered that a new election be held in January 2022. Even though the full text of this decision is yet to be published, its summary reveals that the National Electoral Council projected a Superlano victory with 37.60% of the votes over Argenis Chávez’s 37.21%.
Such a decision is, of course, controversial. If the Comptroller General had barred Superlano from holding office in August, why did they fail to inform the CNE for over three months?
Request for Constitutional Review
Superlano (the candidate) and his campaign would fight the decision by filing a motion for its “constitutional review” before the Supreme Tribunal’s Constitutional Chamber, which is a faculty that the Chamber holds according to articles 335 and 336.10 of the Constitution. This faculty allows the Chamber to “check” the court’s decisions when they relate to the interpretation of constitutional norms and principles and “correct” them in order to maintain uniform criteria across TSJ decisions.
Following Superlano’s request, the Constitutional Chamber responded with a December 8th decision that refused his arguments and upheld the Electoral Chamber’s reasoning. However, this shows some incredibly forced legal reasoning and is more than worthy of our attention considering the implications.
Freddy Superlano’s Argument
The opposition candidate’s legal team argued that, even if he is barred from holding office, the election should stand and he should be declared the winner, in line with the CNE’s findings. Now, this may sound sketchy, but there are very good legal reasons as to why this argument should stand. The most important of which is that the Court has upheld this reasoning in the past.
On August 6th, 2007, the Constitutional Chamber published Decision Number 1680, whereby they took a stance on a very similar situation, on a municipality in Delta Amacuro. In that case, a winning candidate (Pedro Santaella, from PSUV, currently a deputy in the AN) had been stripped of his post because they had incurred in a “cause of ineligibility” prior to the elections. However, this was unknown to the electoral authorities. The Constitutional Chamber reviewed the decision and declared that the elections couldn’t be overturned given that the “will of the voters” had priority over other considerations.
This sets a constitutional legal precedent composed primarily of two important aspects:
- The electoral authorities had accepted the candidacy which, according to the Chamber, implied its legality, which is critical because it provides people with confidence in the electoral system.
- The will of the voters can “overturn” any “cause of ineligibility.” This is due to the fact that victory in an election represents the expression of the public’s will and nothing can get in the way of that.
This precedent was upheld by the Chamber three years later in Decision Number 6 on March 4th, 2010.
In their considerations issued on December 8th, the Chamber stated that the precedent cited by Superlano’s team could not be applied to this case. The reason being that those cases were “different,” given that the candidates in their previous decisions had been declared winners by the electoral authority, whilst Superlano had not.
Since Superlano wasn’t officially the winner, the Electoral Chamber’s decision wasn’t in violation of the set precedent on the matter. This line of thinking comes with serious flaws.
The Constitutional Chamber Is Wrong, and They Know It
Put simply, this isn’t how legal precedent works. A court can’t possibly set a precedent for each specific circumstance. Judicial precedents are used as a handbook when deciding similar cases in the future.
The case at hand is nearly identical to the ones that set the current precedent:
- There’s a cause of ineligibility that was unknown to the electoral authorities.
- The candidacies were accepted.
- The candidates secured the most votes.
The only difference is that Superlano wasn’t officially declared the winner. One might think that’s enough of a difference, but remember what the Court said back in 2007: the will of the voters takes precedence over other considerations. Saying that the official declaration is an indispensable prerequisite to applying this precedent would be completely contradictory to the idea that the voters’ will is supreme in this matter. Regardless of what one may think of the “will of the voters” argument, this is the way constitutional law works.
If the will of the voters can overturn an official sanction imposed by the Comptroller, why would a formal act like the CNE’s declaration be a barrier? Why can’t the TSJ take the CNE’s vote totals and apply their precedent as such?
A serious institution would’ve followed their own reasoning, but the TSJ contradicts itself to favor the ruling party. And what prevents Supreme Tribunals across the globe—let’s say in the U.S., for example—to intervene in an election and annul it in favor of the president’s party? You know it, plain old separation of powers.
Venezuela’s justice system has a long way to go to even reach passable standards.
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