The legitimate TSJ and the Primacy of political freedoms

By Luis Manuel Aguana

Respected jurists are engaged in an underground but very hard discussion about the legitimacy of the Supreme Court of Justice that was constituted in exile, to the point that many Venezuelans who are not legal professionals have had to examine the arguments from side to side to make our own criteria and make a decision about this important matter and support what our conscience dictates.

I have published my last three notes indicating that the Supreme Court of Justice constituted in exile is legitimate, according to the arguments and interpretations given by constitutionalists of recognized trajectory such as Dr. José Vicente Haro. (see in Spanish ¿Es legitimo y constitucional el Tribunal Supremo de Justicia venezolano en el exilio? at http://ticsddhh.blogspot.com/2018/06/es-legitimo-y-constitucional-el.html), without detriment to other opinions that in the completely opposite sense have given other recognized jurists, such as those issued in the publication of the Instituto de Altos Estudios de Derecho-IDAED  (see in Spanish, TSJ y la ruptura del Estado de Derecho en Venezuela, at http://idaed.com/general/el-tsj-y-la-ruptura-del-estado-de-derecho-en-venezuela/).

If there were a High Court in Venezuela that would not be in the hands of this criminal regime to take this case to determine who is right, believe me, I would have done it already. But it doesn't exist. We must trust our conscience and instincts about what is right, taking care of our fundamental principles and values.

And you would ask, and what is the right thing to do here? This case reminded me of a note I published at the end of 2014 (see in Spanish, Principios Constituyentes, at http://ticsddhh.blogspot.com/2014/09/principios-constituyentes.html) which put us in a similar dilemma where lawyers challenged our principles by preferring the current rule even though we knew it was wrong and hurt us. I explained then that I felt in that case, as I feel again now, how easily scholars get so far into the norm that they forget the principles on which they are based.

I wondered, as I now ask myself, why it was necessary to explain to people of a very high level of political and legal interpretation that a rule, clearly unjust and distorted by a criminal government, had to be imposed on them by the supreme power of the people's sovereignty, not only to change it but also to restore what is the ultimate goal of any people at all times, which is the permanent quest for justice and freedom? It said that was not the rule a consequence of that, and when it ceased to be what it should and must be, does it cease to be the rule and must be ignored? I insist again as I did then: the struggle against an unjust norm has been precisely the reason for humanity's libertarian struggles in all ages.

Why should we tolerate and legally accept a Supreme Court of Justice in Caracas presided over by a former convict and controlled by a communist dictatorship? If the rules and legal arguments of some scholars lead us to accept this unacceptable situation, then we must use the very high values of justice and freedom to break them. Those are the principles I am referring to. And that is perhaps out of the mould of some legal professionals who argue, as they argued to me in 2014, that "it was impossible to create a constituent according to the current regulations". And then I went back to the principles...

For me, and possibly for many others - lawyers or not, the legitimate TSJ in exile represents the hope of that state of freedom longed for by Venezuelans, and that its legitimacy is perfected, not only by the legal arguments sustained by Dr. José Vicente Haro in his article - in which we agree - but by the one granted by Venezuelans in their supreme desire to make legitimate resistance to an oppressive regime. This was clearly manifested to the world by Venezuelans at the Popular Consultation on July 16, 2017.

At the moment, the considerations that prevail there should be beyond the juridical to focus on the political, since they are those that are based on the primacy of political freedoms as the main axis. The concept of the Primacy of Political Liberties and Human Rights over all other considerations was introduced by the Bengali economist and philosopher Amartya Kumar Sen, in the work that won him the Nobel Prize for Economics in 1998. (1) (see in Spanish, La Primacía de las Libertades Políticas, at http://ticsddhh.blogspot.com/2015/07/la-primacia-de-las-libertades-politicas.html).

In other words, the basis on which the actions of the legitimate Supreme Court must be based is the recovery of political freedoms, which is an inalienable right of every human being. Consequently, Venezuela's solution requires that a legitimately appointed judiciary should issue priority decisions aimed at recovering our freedoms as its main axis of operation. That is why the main thing that should mark its decisions is the political consideration (with a capital P) in the framework of the current Constitution.

These ideas may sound like heresy to some jurists. But these are the moments of definitions, "either we invent or we err", quoted Don Simón Rodríguez. Either we are looking for a political solution based on the law, or we will be condemned to continue looking for a solution based on the law but within a dictatorship, and this is impossible to achieve by logical construction. A dictatorship is in itself a denial of the rule of law, and we must therefore break that straitjacket, which paradoxically they are trying to impose on us from the very opposition side by insisting on unjustly denying the only oasis we have to open the way into a desert full of totalitarianism.

In a case such as the one introduced by a Venezuelan group, among which I am honored to participate, before the legitimate Supreme Court of Justice, requesting the appointment of a National Emergency Governing Council (see complete application in Spanish at https://tinyurl.com/y7x87ldb), we are fully aware that such a request is very difficult to take given the current conditions of Venezuelan politics, where paradoxically the very legitimacy of the High Court in exile is still being discussed in legal and political circles, when we should all agree that we have been put on the spot to build our own legitimacy from a destroyed country. But it is essential to do so if what we are looking for is the ultimate goal of any society that is nothing more than to demand "...the elimination of the main sources of deprivation of liberty...", Sen dixit.

Legitimate citizen magistrates have a very high responsibility to Venezuelans, and so far they have shown that they have assumed it with courage and bravery, with an awareness of the role that history has given them. Once this National Emergency Governing Council is appointed, things will begin to change in Venezuela's favour and the legitimate Supreme Court of Justice will have been the only power with a conception of a State willing to put the Political (with a capital P) before any other consideration with the supreme aim of saving the Republic and recovering our freedoms.

Caracas, July 4, 2018

Twitter:@laguana

(1)   Amartya Kumar Sen, Desarrollo y Libertad, La importancia de la Democracia, La Primacía de las Libertades Políticas y la Democracia, Ed. Planeta, ISBN 84-08-03524-X, 1999.