Electoral disputes cannot curtail fundamental rights. The case of the use of the Permanent Civic Registry for the internal elections of the National Concertation
By Jorge Rolón Luna
The agreement of a large sector of the opposition to the governing party has resulted in the creation of the Concertation to compete in the 2023 presidential elections. This Concertation intends to use the Permanent Civic Registry (RCP) as the basis of what they call an open electoral roll to elect their candidates. This means that anyone included in the RCP will have the option to vote (not the obligation), regardless of whether they are affiliated with one of the parties that are part of the concertation. This measure introduces a fundamental change in the logic of internal elections to elect representatives of political organizations, which has normally been closed to affiliates. With the step taken by the Concertation, Paraguay would join an international trend that is predominating in developed democracies and that aims at “open primaries”, that is, that any citizen may exercise the right to vote (if so desired) in the internal elections of political parties. As expected, this attempt to have an open electoral roll has unleashed the reaction of the ruling party and the judicialization of the matter.
The issue of the use of the open electoral roll by the Concertation is not minor. Besides all the political (and human) rights issues at stake, it will be the first litmus test for the new (non-colorado) members of the Superior Tribunal of Electoral Justice (TSJE), Cesar Rossel and Jorge Bogarín, who joined the colorado Jaime Bestard at the head of the tribunal. The test of the impartiality and independence of the body that organizes and judges the elections, will say a lot about the competitiveness of the next elections and the validity of the Rule of Law.
Due to a lack of constitutional culture, the discussions of the open list have focused on the RCP, hoping to grant it qualities that go beyond its mere instrumental character, an “untouchability” like a sacred relic that can only be contemplated from afar and kept in a dust and bulletproof glass case. But this is not so.
The reality is that the RCP is a mere list of the persons qualified to vote, the basis of the electoral roll to be used in voting, something that endorses article 112 of the Electoral Code (EC), which indicates its “public” nature. In a technical sense, as CAPEL’s Electoral Dictionary says “the expression electoral registry is closely related to the rights that every individual has, according to the different legislations, to select or elect their respective authorities. For this reason, responsible institutions have been created with the objective of organizing elections (…) with a promotion aimed at the greater participation of the population that has those rights“. The above is emphasized by the expert Juan Rial, who states: “The Electoral Registry is a list of persons that constitutes the basis to make effective the right of citizens to be voters (…) within the framework of a democratic regime“.
The RCP, therefore, is a list of persons with the right to vote. Having settled this issue that diverts the debate towards paths of constitutional, conventional and legal irrelevance, let us add a legal perspective to the matter. We know that in this issue there is a lot of fabric to be cut and that before making a dress it is always necessary to make a design. In this case, the legal approach must take into account two “molds”; one constitutional and the other conventional (i.e., the control of international norms), as stated in a transcendental decision of the Supreme Court of Justice itself.
In the first place, the basic question of this debate on whether the Concertation can use an open electoral roll based on the RCP should be, what is legally at stake? The answer is simple: what is at stake is primarily the exercise of political rights such as participation and active suffrage, which in turn are fundamental rights -because of their constitutional rank- and human rights -because they are contained in international treaties. Any decision should not overlook the scope of these rights and the international standards on the matter. If we consider that in a regime the almost exclusive mechanism of incidence in public affairs is the vote, any decision against them will mortally wound Paraguayan democracy itself.
The Paraguayan Constitution establishes that Paraguay is “a republican, representative, participatory and pluralist democracy…” (preamble), which is immediately reiterated (Article 1); it also states that “the people exercise public power through suffrage” (Article 3); “Citizens, without distinction of gender, have the right to participate in public affairs, directly or through representatives…” (Article 117); “Suffrage is the right, duty and public function of the voter. It constitutes the BASIS of the democratic and representative regime. It is based on the universal, free, direct, equal, and secret vote…” (article 118); “Paraguayan citizens residing in the national territory, without distinction, who have reached the age of eighteen years old, are electors. Citizens are electors and eligible, with no restrictions other than those established in this Constitution and the law” (Article 120).
The American Convention on Human Rights (ACHR), for its part, states that all citizens have the right to: 1.a) “participate in the conduct of public affairs, directly or through (…) representatives; b) vote (…), universal and equal suffrage (…) guaranteeing the free expression of the will of the electors”. The law may regulate the exercise of rights (…) exclusively for reasons of age, nationality, residence, language, education, civil or mental capacity, or conviction (…) in criminal proceedings”.
In summary, the Constitution establishes the republican, participatory and pluralist nature of Paraguayan democracy, the exercise of public power by the people through the vote -which is universal, free and without distinction-, that citizens are electors with no restrictions other than those established in the Constitution and the law, and that they have the right to participate in the formation of the popular will and the orientation of national policy (Article 125).
It should be noted here that there are no constitutional or legal restrictions on how to exercise this right for both party members and non-party members. The latter is important since an important step for the formation of the popular will in the Paraguayan electoral system is the organization of internal and mandatory elections. Therefore, any attempt by a political party or decision of the Electoral Justice to restrict or constrain – “you can only vote in the primary elections of the party to which you are a part of”- the participation of its members in the primaries of the political party, lacks constitutional and legal support. The ACHR also prohibits any legal regulation that restrains the right to participate in the suffrage for reasons other than those set forth in the rule transcribed above, which, as we have seen, do not include affiliation to a political party as a possible impediment.
It is irrefutable that the internal elections are part of the electoral process, so that any obstacle to participate in them would seriously curtail the basic political rights of those who are not affiliated to any political party, in the first place, or even of those who are affiliated, since for the latter there is no constitutional, conventional or legal limitation. No political party in Paraguay can prohibit its members to participate as they please or not to participate in the internal elections prior to the national and departmental elections; it is not contemplated in the constitution, nor in the law, so a judge could not do it either. Regarding the participation in internal elections, its aspect of right, not of obligation, prevails. The autonomy of the will prevails, it is a basic right.
Political parties serve as instruments to defend ideas, programs, and electoral proposals; they are not a straitjacket for their affiliates. Parties can, for example, expel their members in case of party misconduct, but in no case can they force them to vote in their own internal elections. No lawyer of any party may, furthermore, arrogate to himself the right to “represent” the affiliates of a party in legal proceedings, just because he is a lawyer of that party.
One of the arguments used to deny the right of Paraguayan voters to vote in internal elections in which the CPR is used as the basis of the electoral roll is that “in public law, what is not expressly permitted is prohibited”. This argument makes sense to establish parameters and limits to the competence of public bodies and their agents; for example, the police cannot “delay for inquiries” if it is not expressly established by law. But the argument does not apply in the case of the open list. What is at issue here is the right to participate and active suffrage. Being, therefore, a matter that involves the enjoyment of rights, it must be subject to an extensive, broad and non-restrictive interpretation.
This is endorsed by our legal system. The Constitution states that the “enunciation of the rights and guarantees contained in this Constitution shall not be understood as a denial of others which, being inherent to the human personality, do not expressly appear in it. The lack of a regulatory law may not be invoked to deny or undermine any right or guarantee” (Article 45 of the Constitution).
The issue of the use of the open electoral roll by the Concertation is not minor. Besides all the political (and human) rights issues at stake, it will be the first litmus test for the new (non-colorado) members of the Superior Tribunal of Electoral Justice (TSJE), Cesar Rossel and Jorge Bogarín, who joined the colorado Jaime Bestard at the head of the tribunal. The test of the impartiality and independence of the body that organizes and judges the elections, will say a lot about the competitiveness of the next elections and the validity of the Rule of Law.
The Electoral Code also follows a similar line by stating that, “In case of doubt in the interpretation of this Code, what is favorable to the validity of the vote, to the validity of the representative, participatory and pluralistic democratic regime in which it is inspired and to ensure the expression of the authentic will of the people shall always prevail”. (article 4 CE).
In conclusion, the use of the RCP as the basis for the Concertation’s open electoral base is perfectly constitutional. Being the product of an innovation in political matters, in the sense of expanding the participation of the citizenry in the internal elections that are key for the election of the representatives of the state government, it certainly touches sectarian interests and generates resistance. But let us not fool ourselves. When in doubt, let us lean towards more democracy.
*Lawyer. Former electoral judge in Asuncion.
Cover image: TSJE