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The facts about the list of ‘banned candidates’ in Venezuela

Prepared by Francisco Domínguez (Member of Executive Committee, Venezuela Information Centre)

Sections of the Venezuelan opposition are opposing a decision by Venezuela’s Comptroller General, Closdobaldo Russián, who has submitted a list of 386 individuals to be banned from standing for public office for (being guilty of) corruption and/or misuse of public funds. The opposition, finding an echo in sections of the corporate media, has argued that the “list of banned candidates is politically motivated and illegal” (International Herald Tribune, July 8, 2008). They add that the measure is unconstitutional. This interpretation, as we prove below, is simply wrong. The facts do not bear out the charge that this is a politically motivated decision by Venezuelan Comptroller General, nor that it is illegal and/or unconstitutional. In fact, the Comptroller General is merely implementing existing legislation –- a great deal of which precedes the Chavez government -- aimed at rooting out corruption from the Venezuelan state, and especially the impunity that previously characterised it, one of the heaviest legacies of the oligarchy-led IV Republic.

Furthermore, of the original list of 386 individuals affected by the measure only 260 will actually be affected, due to the fact that the penalisation –- ie the length of time which individuals found guilty will be barred from standing for public office -- has already expired. The reason for this is that the length of the investigation carried out by the Comptroller Russián began back in 2005, showing the exhaustive nature of the investigations. Additionally, the Office of the Comptroller General issued a statement which shows that of the 428 individuals in the original list, 236 did not sign the petition back in 2004 to force a recall referendum on President Chavez, whereas 192 did (Ultimas Noticias, 13 July, 2008) ; and pro-government figures have come out to express their disagreement with the decision (such as Calixto Ortega MP ), thus showing that the decision was taken exclusively on legal grounds and was applied fairly.

THE FACTS

1. Comptroller General Clodosbaldo Russian, Venezuela’s top anti-corruption watchdog, submitted a list of 368 individuals (the ‘inhabilitados’) to the country’s National Electoral Council (CNE) asking it to implement a decision to prohibit them from running for public office in the upcoming regional elections in November, because they were being investigated for or had been found guilty of corruption and misuse of public funds.

2. The type of investigation conducted by the Comptroller General, is an obligation of its office, but it applies only to individuals who hold public office. The office of the Comptroller General has the legal authority to carry out administrative investigations into allegations of corruption and misuse of public funds against invidivuals holding public office.

3. Although those affected have argued that the measure/decision is unconstitutional because it has not been taken by a court of law (penal or civil), the Comptroller General has argued that Art 65 of the Constitution makes it clear that “Persons who have been convicted of crimes committed while holding office or other offenses against public property, shall be ineligible to run for any office filled by popular vote, for such period as may be prescribed by law after serving their sentences, depending on the seriousness of the offense.”

It continues: “Those who have been condemned for crimes committed during the exercise of their functions, which affect the public patrimony, cannot stand for office in any popular election for a period of time, fixed by the law, until the completion of the sentence, and in accordance with the gravity of the crime,” and establishes that sanctions can be applied as a result of civil, penal or administrative investigations.

4. After receiving the list from the Comptroller General (19 June 2008) on the grounds of the provisions in Art 105, the National Electoral Council (CNE) took the decision to approve the list, thus making those on it unable to hold or stand for public office for specified periods which could be up to 15 years. The CNE must be formally informed about this so that, should those individuals register as candidates, the CNE has the legal obligation to reject them. Furthermore, the CNE immediately requested Venezuela’s Supreme Court (TSJ) to pass judgement on those listed who had been put forward as candidates for governorships or mayoralties in the forthcoming elections on 23 November, 2008.

Constitutionally, these individuals have the right to appeal to the TSJ against their disqualification to stand for or hold public office and it is on these grounds that the CNE requested the pronouncement of the TSJ. The CNE made it clear that the TSJ must rule on the issue before the period for the registration of candidacies, which is between 5-12 August.

On 27 June the National Assembly (AN) discussed the matter and approved the decision by the Comptroller General to disqualify the individuals on the list. The decision by the AN was arrived at on the grounds of the legal and constitutional correctness of the process.

5. The Comptroller General’s Office instigated the investigations against the ‘inhabilitados’ on the list by virtue of Art 105 of the Organic Law of the Comptroller General Office, which predates the 1999 Bolivarian Constitution up to 15 years (it was introduced in 1984 under the presidency of Jaime Lusinchi and was reviewed and confirmed under the administration of President Rafael Caldera in 1995). Therefore, the legal instrument to apply sanctions against individual whose probity as holders of public office was under question was already in existence, but was simply not being applied.

The current form of Art 105 was adopted in 2002 by Venezuela’s National Assembly in an almost unanimous vote, with those infavour including the opposition parties that had, at that time, a substantial presence in the Assembly (COPEI, MAS, Socialdemocrats, MVR, Convergencia, AD, COPEI, Alianza Bravo Pueblo, Podemos and Primero Justicia – at the time the chavista alliance had 192 MPs and the opposition had 100 seats in parliament – see CNE official results of 2000 parliamentary election http://www.cne.gov.ve/estadisticas/e041.pdf)

The Organic Law in relation to the Comptroller General’s Office gives competence and authority to the Comptroller General to instigate investigations on holders of public office at all levels about any deviation from the performance of their duties according to existing rules, regulations and laws (Arts 9, 10, 11, 12 and 13), and Arts 91, 92 (see full text of the Organic Law of the Comptroller General Office in http://www.mintra.gov.ve/legal/leyesorganicas/lcontraloria.html). Additionally, the Office of the Comptroller General’s attributions is also stipulated in the 1999 Constitution in Arts 25, 274, 287, 288 and 289.

Furthermore, Art 105 gives the Comptroller General Office the authority to bar individuals from holding office, once the investigation on their probity as holders of public office, regardless of political affiliation.

6. The final list of the individuals affected can be found in http://www.radiomundial.com.ve/yvke/noticia.php?7736. The Comptroller General, Clodosbaldo Russian, formally handed in the list to the CNE on 25 February. At the time, Russian said that the names placed on the list had been based on decisions taken by the TSJ and the Sala Constitucional, through a sentence made in 2005. However, Russian explained that these people had the right to appeal to the TSJ to contest the decision and call for their case to be reviewed.

7. Therefore, in summary, the process of disqualification to hold or stand for office in the case of the 368 individuals on the list produced by Venezuela’s Comptroller General has been:

a) conducted strictly on legal and administrative grounds and taken on the basis of lack of probity or irregularities in the performance of public duties;
b) carried out as part of the constitutional and legal obligation of the duties of the Office of the Comptroller General;
c) taken following decisions of the TSJ back in 2005;
d) made under the authority of the Organic Law of the Comptroller General Office and of the Constitution of Venezuela;
e) the individuals affected were fully informed throughout.

Furthermore:
e) Art 105, the main -- although not the only -- legal authority for the disqualifications, precedes the Bolivarian Constitution of 1999; and was in fact introduced in 1984, reviewed and approved in 1999, and again perfected in 2002 (this time) almost unanimously by Venezuela’s National Assembly including the political parties of the opposition COPEI, MAS, Socialdemocrats, Convergencia, AD, COPEI, Alianza Bravo Pueblo, Podemos (on the chavista camp at the time) and Primero Justicia;
f) the individuals on the list have the right to appeal to the Supreme Court (TSJ), they have not made use of this prerogative;
g) the CNE and the National Assembly (both within their specific legal and constitutional competencies) have approved it; the CNE has requested an official constitutional pronouncement by the TSJ;
e) the full implementation of the law in the fight against corruption where every elected public official is accountable is central to the democratic nature of the Bolivarian Revolution.

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