Wednesday, August 21, 2013

FDA Discourse Series--Perspectives on Global Democracy

The Foundation for Democratic Advancement (FDA) conducts interviews of volunteers twice a month. Prior to interviews, the FDA does initial screening. Below is a response from an interested volunteer to the FDA screening questions.
In its initial screening of new volunteers, the Foundation for Democratic Advancement (FDA) asks for written responses to the following questions:
  1. How do you feel about democracy advancement? 
  2. What does a people-based democracy mean to you?
The responses to the questions allows the FDA executive to screen candidates who may have skills and/or education, but lack a passion for democracy and its advancement. Secondary, the FDA learns from the responses about democracy issues and how people think about them.

Due to the quality of the responses, the FDA has decided to make some of them public so that they can be part of the public discourse on democracy. In addition, you will get an idea of the type of people involved in the FDA. Below is an interesting and hopeful response from Kwame Owusu who has a MBA degree and who agreed to the publication of his response.

  • How you feel about democracy advancement?
Kwame Owusu:

History is littered with oppression and violence. From Adolf Hitler to Mao Zedong, Pol Pot to Saddam Hussein, the atrocities committed by these men could have been prevented and stopped had their constituents had a say in how they were governed. We are now in the 21st century and it seems little has changed. Entire populations—both in developed and developing countries—are still tormented by those who see nothing wrong with imposing their will, despite outcries against their actions. Yes, effective democracy has proven to be a solution to such societal parasites; unfortunately, the system remains a thing of myths in many parts of the world.

While it can be argued that democracy may not be the be-all and end-all system of government, I do believe that people must at least be aware of it and must be presented with the option to choose it if they deem it appropriate. All around the world you have incidences of political oppression, but this freedom to choose is a basic right that no institution should be able to tamper without reasons as deemed acceptable by the people.

I admit that while I value and reap the benefits of democracy on a daily basis, I have not done enough to promote it. I respect life and with the world seemingly becoming crazier by the day, it is about time I became more engaged in making it a better place to live.

It is abundantly clear that those in power do not always serve the best interests of their people, with some going as far as to deprive them of such basic rights as the freedom to choose how they are to live their basic lives. With history providing us with so much to learn from, this is not acceptable today, nor will it ever be. I live to the see the day when unjust oppression is nothing more than a distant memory, a day that I helped create.

  • What does a people-based democracy mean to you?
Kwame Owusu:

An important element of democracy is having each person play the deciding role in the governance of society. And in order to craft a well-functioning democratic society, there must be a sharing of mutual tasks for the orderliness and welfare of the collective, as well as for personal interdependence.

The legal construction we know as the corporation is not a person and doesn’t understand this key facet. It lacks conscience and empathy. With only one thing on its mind—money!—it has demonstrated time and time again a lack of respect for human dignity, often deceiving and destroying its way to more wealth. It then uses its billions to lobby [buy] the supposedly democratically-elected governments, insuring that its interests are first met and, thus, relegating the needs of citizens to the back burner. Under this system, how much say does each person have in the way they are governed? Not as much as we have been led to believe.

I believe that in a people-based democracy, the influence of corporations, or any other entity for that matter, on the government should not be so strong as to be detrimental to the well-being of society. So long as they are able to exercise their power in such a manner, true democracy is not possible. Nothing should ever get in the way of the collective demand of the people.

We would like to hear from you; share your perspective on Kwame's thoughts below via the 'ADD and SEE Comments' link.

Related:

FDA 'What do you think?' Series on Reform of the Canadian Federal Government 



Sunday, August 18, 2013

Surveillance and the U.S.A. Patriot Act

The Foreign Intelligence Surveillance Court (FISC) administers warrants for U.S. government surveillance. The FISC has a track record of rubber stamping U.S. domestic and international surveillance, with no follow-up. As shown in the photo, the FISC operates out of the E.Barrett Prettyman U.S. Courthouse located in Washington, D.C. (Photo source; Wikimedia).
In recent years the American public has had to rely on U.S. citizens like Edward Snowden to expose the secrets of government agencies which interfere with individual liberties in the name of security. Most explicit is the exposition of the U.S. National Security Agency (NSA) which tactically accesses numerous telecommunication companies' database. Through wiretapping and surveillance techniques the NSA produces a compilation of patterns, key words or connections aimed at targeting suspect individuals. Those persons who could fall under “suspect” can vary in definition.

In May 2013, the Washington Post and BBC published documents from Edward Snowden, showing and explaining the NSA Washington branch's numerous breaches of U.S. privacy laws and unwarranted surveillance. In order to understand the breakdown in U.S. processes, below is an explanation of how certain U.S. surveillance investigations were made legal and others not.

U.S. government breach of American civil liberties in recent years can be traced back to the emergence of the revised U.S.A. Patriot Act post 9-11. Notable changes to the Act include an expanded jurisdiction of the Foreign Intelligence Surveillance Courts, the NSA and the FBI. Because the NSA and FBI are investigating a unique subsection of security threats, representatives of these agencies simply need to make clear that the warrant for surveillance will be used to look into foreign threat. In essence the amended Patriot Act allows officials to search the property knowing and unknowing of the subject in question. Those found to be suspect has also been broadened in the reforms:

  • "Section 505 of the Patriot Act mandates that no such investigation of an American can be predicated exclusively on activities protected by the First Amendment" (Gorham-Oscilowski & Jaeger, 2008).

In other words, the U.S. Constitution First Amendment, which protects the individual freedom of religion, speech, assembly, press and petition of government, can be bypassed for apparent security.

The Foreign Intelligence Surveillance Court (FISC), the body responsible for granting warrants for investigations based on a "person acting on behalf of foreign powers" has the legal authority to grant warrants to check such person’s electronic activity, business records and personal property (Strickland, 2003). However, most often than not the FISC approves warrants which grant information possessed by a third-party; internet providers, telephone and cell-phone companies etc. According to the Constitutional Rights Foundation these U.S. surveillance agencies do not need to show their findings and no further inquiries into their surveillance are asked by FISC. In addition, the Constitutional Rights Foundation found not a single warrant which was denied to the NSA ("The Patriot Act, 2013).

According to an inquiry published by the Washington Post and BBC, the NSA under executive orders illegally gathers call records, data, and electronic information. The surveillance operation coded as STELLARWIND, allows surveillance without warrant was initiated under the Bush Administration, and continued under the Obama Administration. Within the same document, the NSA covered up their illegal activity by categorizing such activity as human or operational errors.

The U.S.A. Patriot Act (2001) under the Chapter Title, "Enhanced Surveillance Procedures", is the source of the erosion of American's civil liberties, not to mention of the basic freedoms of non-Americans. The American Civil Liberties Association identifies Sections 213, 214, 215, and 218 of this part of the U.S.A. Patriot Act as particularly troubling. More specifically, Section 214 establishes the bypass of the First Amendment for the sake of security:

  • "... a certification by the applicant that the information likely to be obtained is foreign intelligence information not concerning a United States person or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution" (U.S.A. Patriot Act, Section 214(2)). (Bold by the FDA).

In addition, as example,

  • "(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if
  • (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation" (U.S.A. Patriot Act, Section 217(2)(i)(III).
So someone like Edward Snowden as a NSA intelligence consultant can using the vague notion of "reasonable grounds" access the personal communications of anyone to be perceived a trespasser of a protected computer, and the personal communications of anyone with the perceived trespasser ad infinitum.

U.S.A. Patriot Act allow agencies like the NSA, FBI and the courts to side step individual’s right to free speech and right to a "speedy and public trial", and breach individual privacy. All such activities deeply obstruct the U.S. Bill of Rights. The American founding fathers, in this case, particularly James Madison, tactically produced the Bill of Rights to ensure that big government does not hinder individual and state rights. Not knowing, Madison’s Federalist Paper's introduced an age long debate which remains at the center of US democracy today. That is, the degree of liberty given to individuals verses the central government. The eventual conclusion made by the American founding fathers was to enforce a people dominant democracy, whereby the "sovereign people must be the ultimate external judge of their servants' conduct in office", not the other way around (Barnett, 2013).

References

Barnett, R, E. (2013, July 11). "The NSA's Surveillance is Unconstitutional." The Wall Street Journal, 11 July 2013, final ed.:A.13

Garvey, S. (2013). "Snowden--U.S. Headed for Tyranny or Already There?". Foundation for Democratic Advancement. Retrieved from http://foundationfordemocraticadvancement.blogspot.ca/search?q=edward+snowden

Gorham-Oscilowski, U., & Jaeger, P, T. (2008). "National Security Letters, the USA Patriot Act, and the Constitution: The tensions between national security and civil rights".Government Information Quarterly 25.4 (2008): 625-644. DOI: 10.1016/j.giq.2008.02.001

Strickland, L, S. (2003). "Civil Liberties vs. Intelligence Collection: The secret Foreign Intelligence Surveillance Act Court speaks in public", Government Information Quarterly 20.1 (2003): 1-12. DOI: 10.1016/S0740-624X(02)00132-6

The Patriot Act: What is the proper balance between National Security and Individual Rights?. (2013, August 15). Constitutional Rights Foundation.

U.S.A. Patriot Act. (2001). Retrieved from http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf







Ms. Mansharn Toor, Researcher Foundation for Democratic Advancement













Mr. Stephen Garvey, Executive Director Foundation for Democratic Advancement






Friday, August 16, 2013

FDA Talking Points Series--Value of Votes

This map from the 2013 FDA Process Review of the Bingham Crossing Development Application shows the value of weighted votes used in political decision-making. See the 2013 FDA Process Review of the Bingham Crossing Development Application for more details.
The Foundation for Democratic Advancement (FDA) holds the view that during elections, one person equals one vote. This equality standard helps ensure that every eligible citizen has equal say at the ballot box and in deciding who forms government. As part of it electoral fairness audits, the FDA evaluates electoral processes to determine whether or not this standard is upheld. The evaluation of electoral systems includes determining
  1. if there is a constitutional or legislative basis for one person one vote;
  2. if there is reasonable justification to deny certain persons, such as persons imprisoned or mentally debilitated, from voting.
The FDA disagrees with the idea that some persons due to their intelligence, experience, character, position in society etc., should have higher weighted votes in general elections than other persons. The FDA believes that general elections are about capturing the collective voice of the people, and there is no methodology that proves absolutely that someone's opinion about political candidates and parties is more valid than someone else.

However, the FDA believes that the votes of elected representatives, whether in a parliament or assembly, should be weighted based on their percentage of electoral support, and their relevancy to regional and local issues which are being voted on. For example, a representative with 80 percent electoral support of his or her electoral district in the most recent election should have 300 percent more say than a representative with 20 percent support of his or her electoral district in the most recent election. In addition, for example, a representative from Quebec should have more say on a vote pertaining to a rural issue in Quebec than a representative from British Colombia who does not know or understand the issue of the vote and/or the issue has relevancy to him or her.

The purpose of these weighted votes is to more accurately capture the voice of the people than simply give every representative equal say. Moreover, the purpose of weighted votes on regional and local issues is to give representatives more directly impacted by the outcome of a vote more say than representatives with almost no impact from the outcome of the vote, and who have very minimal understanding of the regional or local issues.

In the 2013 FDA Process Review of the Bingham Crossing Development Application, the FDA identifies further grounds for weighted votes, whereby councillors more directly impacted by development decisions should have more say. In the case of the Bingham Crossing development application, the nine councillors of Rocky View County were given equal say, despite only one councillor and the people of her electoral division being directly impacted by the decision, and several other councillors were more impacted by the development decision than the rest of the councillors. In this report, the FDA argues that weighted voting is warranted because of the unusual geography of Rocky View County, Alberta, and the fact that only one councillor was directly impacted by the development decision. To allow councillors to have equal say in this context makes the councillors least impacted susceptible to the influence of special interest, and weakens the say of the councillor(s) most impacted.

 2013 FDA Process Review of the Bingham Crossing Development Application


Country Comparison

CANADA

The Canadian federal electoral system allows only one person one vote. However, there are no provisions in the Canadian Parliament to allow for weighted votes on bills. Further, due to the first-past-the-post system, a minority party can form a minority or majority of the Canadian Parliament, and only the votes of the winning candidates from the electoral divisions count.

Legislative Research

According to the Canada’s Elections Act, the electoral system in Canada is referred as "single member plurality" also known as "first-past-the-post" framework. The aforementioned means that the candidate with the most votes in a given electoral district (geographically the Canadian territory is divided in electoral districts, also known as ridings) will be elected as a member of the Parliament (MP). There is no need to have a 50 percent of the vote to access to the House of Commons, namely, a candidate that has one more vote than his main opponent wins (The Electoral System of Canada, 2012).

Noteworthy, that in accordance to the principle "first-past-the post" there is not a proportional system in Canada. The fact that a proportional system does not exist in the Canadian electoral system implies that representation either by close or open list does not apply in this electoral system.

An elector who has voted in an election may not request a second ballot (Elections Act, Article 7).


UNITED STATES

The American federal electoral system at the congressional level allows only one person one vote. However, there are no provisions in the Senate or Congress to allow for weighted votes on bills. Further, due to the first-past-the-post system, a minority party can form a majority of the Senate and Congress, and only the votes of the winning candidates from electoral divisions count. At the executive level, the American electorate does not have a direct say as to who is the U.S. President. However, many states require the Electoral College officials to vote according to the popular vote.

Legislative Research

The U.S. President and Vice-President are not selected directly by vote of the people. They are selected by appointed electors from each state as per directions of each legislator: the number of electors from each state corresponds to the whole number of Senators and Representatives, which each State is entitled to in Congress. No federal Senators and Representatives may appoint electors. The electors vote by ballot for two presidential candidates and one of them must not be an inhabitant of the same State as themselves. The person having the greater number of votes will be the President, if such a number is a majority; if there are two majorities with equal number of votes, then the House of Representatives will choose by ballot the President; if no person has a majority, then from the five highest candidates on the list, the House of Representatives will choose the President with the representation from the States having one vote; quorum is two thirds of the States. After determining the President, the person having the greatest number of votes shall be the Vice-President. If two or more candidates have equal votes, then the Senate shall choose by ballot the Vice-President (U.S. Constitution, 2012, Article II, Section 1).

The U.S. President and Vice-President are selected by the state electors based on first-past-the-post. The presidential candidate with the most Electoral College votes wins the presidency. The number of state electors each state has is proportional to the number of representatives each state has in the U.S. congress (U.S. Constitution, 2012, Article II, Section 1).

The presidential and vice-presidential candidates having the most votes shall be President and Vice-President, as long as the number of votes for each candidate is a majority of the whole number of electors appointed. If no majority exists for the presidential candidates, then the candidates with highest number of votes (not exceeding three) shall choose the President via ballot and based on votes taken by states with each state having one vote. This vote requires a quorum of two-thirds of the states and a majority of the states. If there is no vice-presidential candidate with a majority of the vote, then from the two candidates with highest number of votes, the Senate shall choose. This vote requires a quorum of two-thirds of the whole number of Senators and a majority of the Senate (U.S. Constitution, 2012, 14th Amendment).

Congressional election winners are based on a single member plurality system (first-past-the-post), except in the case of Georgia, Louisiana, California, and Washington where run-off is held if no candidate receives an absolute majority (United States of American House of Representatives, 2012; Two-Round system, 2012).

The election of congressional representatives is based on a single member plurality system (single-member districts) (U.S. Code, Title 2, Chapter 1, 2c).

The Electoral College elects the U.S. President. Eligible voters have no vote for who is the U.S. President (U.S. Constitution, 2012, Article II, Section 1).

An elector/voter has only one vote (The Voting Rights Act of 1965, 2012).


VENEZUELA

The Venezuelan federal electoral system allows only one person one vote. However, there are no provisions in the National Assembly for weighted votes on bills. Also, due to the first-past-the-post system in 70 percent of the electoral districts, a minority party can form a majority of the Assembly, and only the votes of the winning candidates from electoral divisions count. Yet, Venezuela has a number of participatory mechanisms which allow the Venezuelan public to have direct say on political affairs. For examples, CITIZEN POWER, a citizen-based committee, has say on a number of governmental decisions such as appointments to the Supreme Court (FDA Talking Points Series--Judicial Independence, 2013). In addition, there are a number of public forums and organizations which have substantive say on local political issues. Furthermore, Venezuelans are empowered politically through citizen-initiated recall of any elected official, and citizen-initiated referendum on constitutional, legislative, and constituent issues.

Legislative Research 

The Venezuelan Constitution guarantees the principles of personalization of suffrage and proportional representation (Bolivarian Republic of Venezuela Constitution, Article 63).

30 percent of the seats in the National Assembly are determined by proportional representation, and the rest are determined by first-past-the-post (Wilpert, 2010).

Venezuelan people have the power to submit referendum bills to the National Assembly if the people in favor of the bill represent at least twenty-five percent of the electors registered. Treaties, conventions or agreements that could compromise national sovereignty or transfer power to supranational bodies, may be submitted to a referendum on the initiative of the President of the Republic in Council of Ministers, by the vote of two-thirds or the members of the Assembly, or fifteen percent of the voters registered and entered in the civil and voter registration (Bolivarian Republic of Venezuela Constitution, Article 73).

Venezuelan people have to power to submit referendum bills to wholly or partially repeal existing laws if the people in favor of the referendum have support from at least 10 percent of the registered electors (Bolivarian Republic of Venezuela Constitution, Article 74).

Venezuelan people have to power to submit referendum bills to abrogate laws issued by the President of the Republic under Article 236 if those in favor of the referendum have the support of at least 5 percent of the registered electors. The validity of referendum requires at least 40 percent support from registered electors (Bolivarian Republic of Venezuela Constitution, Article 74).

Electors have the right to one vote per election (Election Law, Article 125).


References

Bolivarian Republic of Venezuela Constitution. (2012). National Electoral Council. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/constitucion/indice.php

Election Law. (2012). National Electoral Council. 2012. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/ley_organica_procesos_electorales/indice.php

Elections Act. (2000, May 31). Elections Canada. Retrieved from http://www.elections.ca/content.aspx?section=res&dir=loi/fel/cea&document=part00&lang=e

FDA Process Review of the Bingham Crossing Development Application. (2013). Foundation for Democratic Advancement. Retrieved from http://www.slideshare.net/FDAdvancement/2012-rocky-view

FDA Talking Points Series--Judicial Independence. (2013). Foundation for Democratic Advancement. Retrieved from http://foundationfordemocraticadvancement.blogspot.ca/2013/08/fda-talking-points-series-judiciary.html

The Electoral System of Canada. (2012). July 19, 2012. Elections Canada. Retrieved from http://www.elections.ca/content.aspx?section=res&dir=ces&document=part1&lang=e

The Voting Rights Act of 1965. (2012). U.S. Department of Justice Retrieved from http://www.justice.gov/crt/about/vot/overview.php#vra

Two-round System. (2012). In Wikipedia, the free encyclopedia Retrieved August 15, 2012, from http://en.wikipedia.org/wiki/Two-round_system

U.S. Code. (2012). Cornell University Law School. Retrieved from http://www.law.cornell.edu/uscode/text

U.S. Constitution. (2012). Cornell University Law School. Retrieved from http://www.law.cornell.edu/constitution/

United States House of Representatives. (2012). In Wikipedia, the free encyclopedia. Retrieved August 18, 2012, from http://en.wikipedia.org/wiki/United_States_House_of_Representatives

Wilpert, G. (2010). A New Opportunity for Venezuela’s Socialists. Venezuelanalysis.com. October 1st 2010. Retrieve from http://venezuelanalysis.com/analysis/5683







Mr. Stephen Garvey Executive Director Foundation for Democratic Advancement






Thursday, August 8, 2013

FDA Talking Points Series--Judiciary Independence

2013 U.S. Supreme Court. Supreme Court Justices Alito, Scalia, Kennedy, Thomas, and Robers were appointed by Republican Presidents. Supreme Court Justices Ginsburg, Breyer, Sotomayor, and Kagan were appointed by Democrat Presidents. Assuming that these appointments are partisan in nature, the U.S Supreme Court as a body is titled to the Republican ideology. The FDA believes that the presidential appointment process of the U.S. Supreme Court Justices influences the direction of the court, and thereby erodes some of its independence.
The Foundation for Democratic Advancement (FDA) believes that an independent and neutral judicial branch of government is an important check and balance on the executive and legislative branches of government. Check and balance by the judiciary encompasses issues of constitutionality and enforcement of law, and this check and balance may be initiated by the judiciary itself or through citizen constitutional and legislative laws suits filed against the government, organizations, and individuals. Although in many western countries the leadership of the majority or minority party in power appoints justices to vacancies of the Supreme Court, the Court is independent in its decision-making. However, these appointments which are likely partisan in nature influence indirectly the decisions of the Supreme Court, and thereby weaken its independence. One way around this appointment process is to allow a citizen committee representing a cross-section of society and the regions of a country to appoint the Supreme Court vacancies subject that the appointments have adequate legal educational, professional, and character backgrounds. 

In its electoral fairness audits, the FDA looks for constitutional and legislative evidence of the independence of the judicial branch of government. A main requirement for independence is that no one is above the law of the land, and a main requirement for check and balance is that Supreme Court has authority and power to veto executive decisions and legislation which violates the constitution and laws of the country. Note, an independent judiciary is only one main check and balance on government bodies. In addition, a weak electoral system will likely impact the appointments to a Supreme Court by making them less representative of the people's voice.

Country Comparison

CANADA

Canada's federal judiciary has jurisdiction over appellate review in criminal and civil matters, controversies between provinces and the federal government, and questions of law or fact pertaining to the Constitution of 1867 and constitutionality of federal and provincial legislation and the exercise of powers by the Parliament. There are no mechanisms to remove a Supreme Court Judge barring illegal acts and reaching the age 75-years old. However, Superior, District, and County court judges can be removed by Governor General on advise of the Senate and House of Commons.

The Canadian Governor General is a ceremonial appointment of the Prime Minister. So the majority of the House of Commons with advise from the unelected Senate determines whether or not Superior, District, and County court judges are removed.

The Supreme Court judges, when vacancies occur, are appointed by the Prime Minister and Cabinet. The Prime Minister determines the Cabinet, so in essence, the Prime Minister determines the Supreme Court judges. The Prime Minister is partisan to a particular party, and therefore, his or her appointments are partisan as well.

The independence of the Canadian Supreme Court is indirectly weakened by partisan appointments, because they influence the outcomes of the Supreme Court cases. Superior, District, and County judges are weakened similarly, and further weakened, by the power of the majority of the Parliament to remove them.

Similar to Canadian elected officials, the federal judiciary is tied to the federal electoral system, and its level of equality and fairness. The less fair the electoral system, less legitimate will be the federal elected officials and the judiciary. In 2013, the FDA completed a electoral fairness audit of the Canadian federal electoral in which Canada received an unsatisfactory score of 64.49 percent (out of 100 percent) (FDA Electoral Fairness Report on Canada, 2013). The FDA auditors identified significant electoral bias to large and established political parties. Further, the party or parties with control of the Parliament determine the federal election laws.

Legislative Research

Powers of the Judiciary

Has appellate review power in criminal and civil matters (Supreme Court Act, Section 35, 1985).

Hears controversies between provinces and the federal government (Supreme Court Act, Section 35.1).

Answer questions of law or fact provided to it by the Governor in Council related to the Constitution of 1867; constitutionality of federal or provincial legislation and the exercise of powers by Parliament (Supreme Court Act, Section 53(1)(a)-(d)).

Checks on the Judiciary

Superior, District, and County court judges are removable by the Governor General on the advice of the Senate and House of Commons (Constitution Act, Section 99, 1867).

Supreme Court Justices appointed by the Governor in Council – Prime Minister and Cabinet (Supreme Court Act, Section 4(2)).


UNITED STATES

The U.S. judiciary has jurisdiction over cases involving the U.S. Constitution, laws, and treaties under its authority. The President with advise and consent of the elected Senate appoint justices to the Supreme Court. Federal justices of both the superior and inferior courts are required to hold their offices during good behaviour.

Similar to Canada, the U.S. presidential appointment of Supreme Court justices detracts from the independence of the Court due to the partisan nature of the appointments. Also, the appointment process is tied to the federal electoral system due to the president being an elected office. The more fair and equitable the U.S. federal electoral system, the more legitimate will be the presidential appointments. In its 2012 U.S. electoral fairness audit, the FDA measured an unsatisfactory score of 54.5 percent (out of 100 percent) for the U.S. federal electoral system.

Legislative Research

The U.S. federal government is divided into three branches: legislative (comprised of Congress and Senate), presidency (executive), and judiciary (U.S. Constitution, 2012, Article I, Sections 1, 2, 3; Article II, Section 2; Article III, Section 2).

The U.S. House of Representatives and Senate have legislative power; the President has the executive power of government; the judiciary has power over cases involving the U.S. Constitution, laws, and treaties under its authority which entail cases affecting ambassadors, other public ministers and consuls, cases of admiralty and maritime jurisdiction, controversies the United States is part including between two or more states, between a state and citizen of another state, and between citizens of different states  (U.S Constitution, 2012, Article I, Sections 1; Article II, Section 2; Article III, Section 2).

Judges for both supreme and inferior courts shall hold their offices during good behaviour (U.S. Constitution, Article III, Section 1).

The President on advise and consent of the Senate shall appoint judges to the Supreme Court; the Congress may vest the appointment of inferior Judges  through establishment of law and may vest these appointments to the President alone (U.S. Constitution, Article II, Section 2).


VENEZUELA

Unlike Canada and the United States, Venezuela has a public component for the selection of justices to the Supreme Court. In addition, Venezuela has extensive checks and balances on justices such as process for misconduct and corruption and a single 12-year term for justices. In addition, to ensure the independence of Venezuelan courts and its justices, the Venezuelan state disallows justices from participating in partisan activities and gives the judiciary financial independence. Further, the Venezuelan Supreme Court has jurisdiction over constitutional law and enforcement of law, and it has the authority to determine whether or not the President of Republic should be impeached. Furthermore, indigenous peoples are given the opportunity at alternative justice processes, and the removal of justices for serious offenses must satisfy a two-thirds vote of the National Assembly.

The Venezuelan state limits the partisan nature of selections to the Supreme Court by allowing input by various organizations and the public, and with the National Assembly making the final selections.  

The Venezuelan judiciary processes exceeds the FDA standard for an independent and neutral judiciary by allowing public input on justice appointments and removal. Note, any system regardless of how sound it is may be subject to human misconduct. However, the more sound the system, the less likelihood of misconduct not be being detected and corrected. 

Legislative Research

The Venezuelan government has four main independent branches of government: National Executive, National Assembly, Judiciary, and Citizen Power (represented by an ombudsmen office). The National Executive lead by the President and Vice-President is in charge of running the country; the National Assembly is the authority of national legislation; the judiciary led by the Supreme Court is authority on the Constitution and enforcing law, and the Ombudsman Office is in charge of protecting the people’s interests and rights (Bolivarian Republic of Venezuela Constitution, Articles 72-74, 225-283, 347-350).

The Supreme Court of Justice has operational autonomy and financial management. The state must allocate funds to the judiciary not less than 2 percent of the state budget. The judiciary is disallowed from establishing rates, fees, or requirements for payments (Bolivarian Republic of Venezuela Constitution, Article 254).

Admission and promotion of judges is through public competitions based capability and professional excellence, and selected by judges in the judicial circuits (Bolivarian Republic of Venezuela Constitution, Article 254).

Judges are personally liable for mistakes, breach of procedural rules, partiality, and crimes of bribery and malfeasance occurred in the performance of their duties (Bolivarian Republic of Venezuela Constitution, Article 255).

In order to ensure impartiality and independence, judges are disallowed from being involved in partisan, union, and private non-profit activities, and cannot associate with each other (Bolivarian Republic of Venezuela Constitution, Article 256).

Justice of the peace in communities are elected by universal, direct, and secret suffrage (Bolivarian Republic of Venezuela Constitution, Article 258).

The Supreme Court and other courts have jurisdiction over administrative acts contrary to law (Bolivarian Republic of Venezuela Constitution, Article 259).

Authorities of indigenous habitat may apply for justice procedures according to their ancestral traditions involving only their members (Bolivarian Republic of Venezuela Constitution, Article 260).

Military criminal jurisdiction applies to crimes of a military nature; crimes against humanity and human rights violations are tried by the ordinary courts (Bolivarian Republic of Venezuela Constitution, Article 261).

Justices of the Supreme Court are required to be Venezuelan nationality by birth and not other nationality, be recognized socially with integrity, and be lawyer of recognized ability, reputation, have practiced law for at least 15 years or a professor or lecturer of law for at least 15 years (Bolivarian Republic of Venezuela Constitution, Article 262).

Justices to the Supreme Court are elected for a single term of 12-years. Candidates are proposed to the Judicial Nominations Committee on its own or by organizations involved in legal activity. The Committee after hearing the opinion of the public makes shortlist to the Citizen Power, which will then make another shortlist which will presented to the National Assembly. The Assembly will make the final selection. In addition, citizens may file objections to the Judicial Nominations Committee or to the National Assembly (Bolivarian Republic of Venezuela Constitution, Article 264).

The National Assembly may remove justices of the Supreme Court. A two-thirds vote is required, and following the person's or persons' participation in a hearing process through the Citizen Power for serious offenses (Bolivarian Republic of Venezuela Constitution, Article 265).

The Supreme Court has authority to determine whether or not there are grounds for the impeachment of the President of the Republic or his substitute. The National Assembly makes the final judgment (Bolivarian Republic of Venezuela Constitution, Article 266).
The Supreme Tribunal of Justice has jurisdiction over the governance and administration of the judiciary. The Tribunal is guided by the Code of Ethics of Venezuelan Judges and the National Assembly (Bolivarian Republic of Venezuela Constitution, Article 267).
The Judicial Nomination Committee advises the Citizen Power on on selection of candidates for justices of the Supreme Court. The Committee is comprised of representatives from different sectors of society (Bolivarian Republic of Venezuela Constitution, Article 270).


References

Bolivarian Republic of Venezuela Constitution. (2012). National Electoral Council. Retrieved from http://www.cne.gov.ve/web/normativa_electoral/constitucion/indice.php

Constitution Act. (1867, March 29). Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/Const/page-1.html

Constitution Act. (1982, April 17). Retrieved from the Department of Justice http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-38

FDA Global Electoral Fairness Report on the Canada. (2013). Foundation for Democratic Retrieved from http://www.slideshare.net/FDAdvancement/2013-can-fed-audit

FDA Global Electoral Fairness Report on the United States. (2012). Foundation for Democratic Retrieved from http://www.slideshare.net/FDAdvancement/united-statesfda-global-electoral-fairness-report

FDA Global Electoral Fairness Report on the Venezuela. (2012). Foundation for Democratic Retrieved fromhttp://www.slideshare.net/FDAdvancement/2012-fda-global-electoral-fairness-audit-of-the-venezuelan-presidential-electoral-system

Garvey, S. (2013). "FDA Talking Points Series: Checks and Balances". Foundation for Democratic Advancement. Retrieved from http://foundationfordemocraticadvancement.blogspot.ca/2013/04/fda-talking-points-series-checks-and.html

U.S. Constitution. (2012). Cornell University Law School. Retrieved from http://www.law.cornell.edu/constitution/







Mr. Stephen Garvey, Executive Director Foundation for Democratic Advancement