1. The signatures were gathered the February 2nd of 2003, that is to say, six and a half months before passing the half-way mark of the president’s term in office. In this regard it is good to recall the decision of the Constitutional Court of the Supreme Tribunal of Justice (TSJ) of June 5, 2002, in response to a request of interpretation of Art. 72 of the National Constitution which, upon analyzing the requirements for initiating a recall referendum, indicated the following: “half of the period, which constitutes a limit of a time-bound nature from which the recall of a mandate can be exerted, without a doubt represents a prudent time limit that allows the voters to have a perception of the performance of the representative”. As can be observed in this decision, the TSJ was clear when affirming that it is from the fulfillment of half of the period when the right can be exercised to revoke the mandate. The logical reason for this is that only then a citizen has had sufficient opportunity to evaluate the performance of the civil employee. If this limit did not exist, then at the same moment when officials are elected, their opponents could try to take advantage of the election, in order to gather signatures (without having evaluated the official’s performance) and to then store these signatures for future use in a recall referendum at a time of their convenience, just as indeed happened this past August 20th, 2003, when the petition for the recall of the mandate of president Chávez was submitted with signatures gathered on February 2nd, 2003. That is, a constitutional right before was exerted before it was born.
2. The list used to ask for a recall referendum omitted the date when the elected official took office, a fundamental requirement for analyzing the propriety of the request. In this sense the Constitutional Court of the TSJ, in its same decision (of 05Jun02) indicated: “by such reason, it is essential, in order to prove the fulfillment of the requirement mentioned one, that the request for the revocation of the mandate expresses with clarity the full name of the questioned elected official and the position for which he/she was elected, with an indication of the date at which he/she took office.” This date is essential for verifying if the elected official in question has fulfilled half of his/her mandate and therefore to decide the propriety of the request.
3. The question written in the petition for a recall referendum was the following one: “We, the signers of this list, registered in the Electoral Registry, take the initiative to summon a recall referendum.” As can be observed with all clarity, this violates Art.72 of our Constitution, which says: “Passing half the period for which the elected official was chosen, a number not less than twenty percent of the voters enrolled in the corresponding registry will be able solicit a call for a referendum to revoke the official’s mandate.” That is to say, the only faculty that the electorate has is to solicit to the National Electoral Council (CNE) for a referendum and not to convoke it as in effect it did, usurping therefore a function that is the sole competence of the CNE. This is true even more so in that there already was a decision of the Constitutional Court of the TSJ of June 5, 2002 that established the essential formalities of a request to call for a recall referendum.
4. The voters applying for the referendum, or rather convoking the same, appointed themselves by stating “yes” when responding to the question that was closest to their interests, when actually the faculty to respond with “yes” or “no,” according to the design of the question, was solely within the power the CNE, once the request is analyzed and this question is elaborated. In this way a function of the CNE was usurped by violating Art. 33 of the Statutory Law of the Electoral Power, which stipulates the competency of the CNE: “To organize, to administer, to supervise, and to supervise acts relative to the electoral processes, of referenda and of elections…”
5. The act of collecting signatures to ask for a recall referendum constitutes an intrinsic part of the process of the recall of a mandate and therefore it must be supervised by the CNE, just as is stipulated in article 293 of the National Constitution: “the Electoral Power has, functions to organize, administer, direct, and monitor of all the acts relative to the election of positions of popular representation of public powers, as well as of referenda”. Also, this function appears clearly stipulated in article 33 of the Statutory Law of the Electoral Power previously mentioned in point 4 of this text. In addition to the above it is appropriate to recall the decision of the Constitutional Court of June 5, 2002, in relation to the interpretation of Art. 72 of National Constitution which clarified: “For that reason, such a request must be accompanied by the full name, identification numbers, and the respective signatures, so that these can be verified by the CNE, the compliance with the constitutional requirement of the popular initiative being represented by twenty percent (20 %) of the electorate who appear as applicants for the revocation of the mandate in the Electoral Registry. The CNE this is the only authorized body to verify such data.” As a consequence of the previously mentioned decision of the TSJ, it is clear and without ambiguity, that any inherencia in the process of verification of the request for the revocation of a mandate constitutes a usurpation of functions which are solely the competency of the CNE. This was indeed exactly what happened when the signatures to request a recall referendum against president Chávez were not only kept for their safekeeping with a private company: SUMATE (Which is neither a political party nor a representative of Civil Society). Rather, this organization handled the signatures and verified them, openly violating the National Constitution (article 293) and the Statutory law of the Electoral Power (article 33) and even more seriously, it is unacceptable and worrisome, from the point of view of national security and defense, that a private organization such as SUMATE has become as deeply involved as it has in something as transcendental as the sovereign will to ask for the revocation of the mandate of the president of the Republic.
Conclusion: the signatures gathered during the “Firmazo” asking for the revocation of the mandate of president Chávez are questionable from top to bottom, which makes nonviable the call for the recall referendum, since it violates the National Constitution, the Statutory law of the Electoral Power, and the dispositions of the Constitutional Court of the TSJ referring to the interpretation of article 72.
Valencia, August 21, 2003
Cnel (Ej) Hendy Montiel Arguello
Magister in Security and National Defense