The Facts about the List of “Banned Candidates” in Venezuela

Sections of the Venezuelan opposition are opposing a decision by
Venezuela’s Comptroller General, 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. In fact, the
Comptroller General is merely implementing existing legislation — a
great deal of which precedes the Chavez government.

By Francisco Dominguez - Dissident Voice
Short URL

Sections of the Venezuelan opposition are opposing a decision by
Venezuela’s Comptroller General, Clodosbaldo 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.”1
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 — i.e., 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;2
and pro-government figures have come out to express their disagreement
with the decision (such as Calixto Ortega MP3), 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 individuals holding
public office.3

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 judgment 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 85 MPs and the opposition had 80 seats in parliament.4
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). Additionally,
the Office of the Comptroller General’s attributions is also stipulated
in the 1999 Constitution in Arts 25, 274, 287, 288 and 289.5
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 here.
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.

Notes:

1. “Blacklisted-Candidates List,” International Herald Tribune, July 8, 2008. #

2. “Mayoría de los inhabilitados son de tendencia chavista,” Ultimas Noticias, 13 July, 2008. #

3. Usted lo vio: Calixto Ortega: “El Contralor no debería tener facultad para proclamar inhabilitaciones” #

4. See CNE official results of 2000 parliamentary election. #

5. Full text of the Bolivarian Constitution of Venezuela,
Constitution of the Bolivarian Republic of Venezuela #

Francisco Domínguez is a member of Executive Committee, Venezuela Information Centre.