COUNCIL OF EUROPE CONSIDERS VENEZUELA’S CONSTITUENT ASSEMBLY TO BE IN VIOLATION OF DEMOCRATIC PRINCIPLES




Recently (on July 21st 2017), the Council of Europe’s advisory body on constitutional matters, better known as the Venice Commission, issued document CDL-PI(2017)004-e, a preliminary opinion on the legal issues raised by the presidential decrees calling for the election of a National Constituent Assembly in Venezuela.

The Venice Commission gathers 47 Council of Europe Member States, out of which 28 are members of the European Union, as well as other States with an observer status, such as Mexico, Canada, Japan, Israel, the Holy See and the United States. This Commission, after assessing the power of the Venezuelan President to call for the election of a National Constituent Assembly, as well as his competence to establish the rules and the scope for such election, concluded in its report that Nicolás Maduro’s initiative undermines the credibility of such Assembly and therefore, his attempt to write a new Constitution (taking into account the shortcomings of the process and the election rules). The Commission also concluded that such call can only come from the people of Venezuela through a referendum and that the election rules proposed violate the equal voting rights principle[1].

The conclusions are the following:


VI. Conclusion

70. The Venice Commission has been asked by the Organization of American States (OAS) to prepare an opinion on the legal issues raised by the calling by the President of Venezuela of elections to a National Constituent Assembly.

71. President Maduro has issued three decrees (2830 of 1 May 2017, 2878 of 23 May 2017 and 2878 of 4 June 2017), whereby he has called the election of a National Constituent Assembly, has fixed the rules for such election and has encouraged that Assembly to submit the draft constitution to referendum.

72. Decree 2878 establishes that the 553 members of the National Constituent Assembly are to be elected in three different ways: 364 members by territory and 181 by sectors. 8 members are to be elected by the General Assemblies of the Indigenous Peoples. As for the territorial representation, in the 311 common municipalities the majoritarian system is to be used, in the 23 regional capitals and the single national capital the proportional system is to be used. As for the sectoral representation, seven sectors have been identified to be represented in the assembly (businessmen and businesswomen; peasants and fisherman and fisherwomen; people with disabilities; students; workers; communes and communal councils and pensioners).

73. The Decrees under consideration raise several issues which have been analysed in the present opinion.

74. As regards the power to call the elections of the National Constituent Assembly: in the light of the wording of the relevant constitutional provisions, against the background of the previous constitutional experience of Venezuela and in the absence of compelling arguments to the contrary, the Venice Commission is of the view that the question of whether or not the decision on the convocation of a National Constituent Assembly may only be taken by the people of Venezuela through a referendum may not be considered to have been finally settled.

75. As regards the power to establish the rules for the election of the National Constituent Assembly: the Venice Commission considers that, in accordance with the principle of the rule of law and the Constitution of Venezuela, the power to determine the rules for the election of the National Constituent Assembly belongs to the National Assembly only, which has to adopt a specific piece of legislation.

77. As regards the rules for the election of the National Constituent Assembly set out in Decree 2878: the Venice Commission considers that the rules based on territorial representation violate the democratic principle of equal voting power, and the rules based on sectoral representation entail a flagrant violation of the democratic principle of equal voting rights. In addition, the number of members of the National Constituent Assembly appears to be too large to enable the Assembly to hold meaningful debates, reach consensus and complete its work within a reasonable timeframe.

78. The Venice Commission wishes to stress that in the case of the election of a new National Constituent Assembly, the need for consensus must be especially emphasized. As the Venice Commission has previously stated, this procedure is one of the most sensitive issues of any constitution. It is also a highly political issue that can only be determined in light of the history of the country and its political and legal culture. For this reason, the adoption of a new and good Constitution should be based on the widest consensus possible within the society and a wide and substantive debate involving the various political forces, non-government organizations and citizens associations, the academia and the media is an important prerequisite for adopting a sustainable text, acceptable for the whole of the society and in line with democratic standards. For this to happen, states’ positive obligations to ensure unhindered exercise of freedom of peaceful assembly, freedom of expression, as well as a fair, adequate and extensive broadcasting of the arguments by the media are equally relevant.

79. The shortcomings of the procedure and of the electoral rules for the election of the National Constituent Assembly of Venezuela are such as to undermine the credibility of the attempt to prepare a new constitution.

80. The Venice Commission remains at the disposal of the authorities of Venezuela and the Organization of American States for any further assistance in this matter they may require.

Since its Declaration of Independence, in July 1811, Venezuela has gone through 26 constitutions. Most of them come from dictators once in power, mainly military dictatorships and more recently, civic-military ones (as this is how they call themselves). Their charts and constituent processes were no more than a simple tool to perpetuate the regime’s absolute power and try to legitimate their outrages. Today’s National Constituent Assembly is not different, but it goes further. In this new version of Assembly, which seeks more totalitarian powers, the situation is worse than ever: the past constitutions were mainly aimed at supporting the hegemony of the political factions in power and oppressing dissidents, but such practices were merely the material outcome of dictatorial regimes. Nowadays, the supporters of the so-called Constituent Assembly not only violate and seize control of the popular sovereignty, which is extremely alarming as a fact, but also have no fear to admit that the goal of such process is to exterminate and eliminate dissidents (a concept that now comprises all citizens), and that if the “revolution” could not be settled down through the Constituent Assembly with votes, it will be so with bullets.

Those who support and stand up for the Constituent Assembly ignore what a real Constitution is, and that a true constitutional State is one that subjects itself to the Law, that limits its powers and never uses the Constitution as a means to extend its powers. They also ignore that their openly deceitful initiative lacks legitimacy, for they want such assembly to be called for mainly by those who will benefit the most from it.  Likewise, the Assembly target is illegitimate, as it is seen as a means and tool of repression against the dissidence and the opposition. For these reasons, any action taken by the so-called Assembly will be null, ineffective and illegitimate. This means that any citizen can then exercise the sacred right and ineluctable duty to show resistance to oppression and to force tyranny into the course of the Rule of Law.

 
The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security and resistance to oppression”.
(Article II of 1789’s Declaration of the Rights of Man and the Citizen).


Roberto Hung Cavalieri
@robertohungc
rhungc@gmail.com


Download the opinion clicking  here: Aquí


Comentarios