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
Publicar un comentario