By Luis Manuel Aguana
On January 15, 2019, when everyone
was waiting for Juan Guaidó to be sworn in as Constitutional President in
charge of the Bolivarian Republic of Venezuela, the National Assembly approved
instead the "Agreement on the declaration of usurpation of the Presidency
of the Republic by Nicolás Maduro Moros and the re-establishment of the
validity of the Constitution" (see text of the Agreement in Spanish in http://www.asambleanacional.gob.ve/actos/_acuerdo-sobre-la-declaratoria-de-usurpacionde-la-presidencia-de-la-republica-por-parte-de-nicolas-maduro-moros-y-el-restablecimiento-de-la-vigenciade-la-constitucion).
In the framework of the mentioned
Agreement it is decided: "THIRD: To
approve the legislative framework for the political and economic transition,
establishing the legal conditions that allow to initiate a progressive and
temporary process of transfer of the competences of the Executive Power to the
Legislative Power, with special attention in those that allow to adopt the
necessary measures to re-establish the constitutional order and to attend the
complex humanitarian emergency, including the crisis of refugees and
migrants".
In other words, the Members of
Parliament decided to resolve one usurpation with another. After creating the
"incentives for civil servants and police, as well as the components of
the National Armed Force, to stop obeying Nicolás Maduro Moros and to obey, in
accordance with articles 7 and 328 of the Constitution, the decisions of the
National Assembly in order to comply with article 333 of the Magna Carta",
then, little by little, order and the Rule of Law will be restored. And then
they ask me why I am radical and why I am annoyed to see these things. Where in
our legal and constitutional system does it appear that the National Assembly
can assume the functions of the Executive Power? I insist, where the fuck do
these deputies live? Do they know who they are up against? Or do they know and
are they deliberately sabotaging us so that we don't get out of this crisis?
Is the President of the National
Assembly, Juan Guaidó, realizing that with this act he is DELEGATING AND
DELIVERING the condition conferred by Article 233 as President in Charge of the
Republic by the absolute lack of the elected President, to a collegiate entity
such as the National Assembly?
Some questions arise from this new
situation: Could Guaidó be sworn in as President in Charge, if he so decides
after this session, after the National Assembly through this legislative
agreement took away his powers as head of the Executive Power? I don't think
so. He did the same "harakiri", closing any possibility of backing
out.
In the same way, could another
President in charge of the Republic be sworn in as provided for in Article 233,
after this Agreement? I don't think so either. The deputies decided
unconstitutionally to exercise the Executive Power in an assembly manner,
something that does not exist, I repeat, in our constitution.
Unless someone denounces this
Agreement as unconstitutional before the legitimate Supreme Court of Justice,
it will be in force and nothing but the regime will move. In the meantime, time
passes and the regime advances, with its sequel of deaths due to hunger and
lack of medicines, hyperinflation and destruction of the country. What was the
problem of not swearing Juan Guaidó in as Constitutional President in Charge of
the Republic? There is only one reason for that: negotiation with the regime.
The only ones who were saved from that are the Deputies of the 16th of July
Fraction who saved their vote to that unconstitutional adefesio (see https://www.lapatilla.com/2019/01/15/fraccion-16-de-julio-aclara-que-es-inconstitucional-transferir-atribuciones-de-la-presidencia-a-toda-la-an-tuit/).
Many shouted to me on Twitter that
because I insisted on that swearing in if prominent jurists had already said it
was not necessary. I wish to repeat my answer: Absolutely the entire international
community was waiting for the legal and formal act of this inauguration. In
addition, the oath is mandatory and constitutional (Article 231). This is how
the jurist Asdrúbal Aguiar expresses it: "what
would correspond is that, immediately, the first vice-president of the National
Assembly before the body takes the oath as president in charge of the
presidency of the Republic" (see Aguiar: what corresponds is that
Zambrano Juramente a Guaidó as President, in https://maduradas.com/lo-dijo-clarito-asdrubal-aguiar-lo-que-corresponde-es-que-zambrano-juramente-a-guaido-como-presidente-video/).
According to the criteria of Dr.
José Vicente Haro, President of the Venezuelan Association of Constitutional
Law, "when you are President, as
Juan Guaidó of the Republic of Venezuela is at this moment, you are also Head
of State, you are also Head of Government, and you are also Commander in Chief
of the National Armed Force. Only Juan Guaidó lacks the oath, the inauguration
as Head of State..." (see CNN interview in Spanish https://twitter.com/TemplarioResisT/status/1084125783982030849).
For us as Venezuelans it is
something we take lightly but for the rest of the world politically that is the
alcabala to access power. For them it cannot be understood if something that is
so clear in the Constitution -because they also know how to read and interpret-
is not so for the Venezuelan people. In fact, for the Constituent Assembly of
1999 this is the only oath mentioned for a public official, there is no other
oath in the entire constitutional text precisely because it is the most
important and necessary formality for a person to be granted the Head of State,
of the Government and of the Armed Forces. The act of oath is the fundamental
political step for the seizure of power. And if this is not done Guaidó is
simply not President and I doubt that he will be from today when he signs that
fateful Agreement.
The Agreement that was signed in the
National Assembly was really historic, as it was referred to by the still
President of the National Assembly (see https://twitter.com/jguaido/status/1085267637364555777?s=03) but not in the sense he wanted to give it. It
was historic because, in addition to being unconstitutional because it was
usurped by a usurper, it became a perverse tactic of a political order worthy
of being outlined for history as a mechanism to avoid the pronouncement of the
legitimate Supreme Court in order to be able to argue that there is no
legislative omission, making it possible for the High Court to be prevented
from pronouncing itself around a new National Emergency Government that
Venezuela desperately needs, and that Juan Guaidó himself lent himself to stop.
But they have only delayed it. That is the kind of legal trickery that has
damaged Venezuela's institutionality throughout its republican history, causing
discomfort and anguish in the population.
The only thing the politicians in
the National Assembly were asked to understand was the cry of the Venezuelans
for an immediate change in the political, economic and social situation of the
country. They did not understand. Had the President of the National Assembly
been sworn in and become Constitutional President in Charge of the Republic,
Venezuela's entire political equation would have changed instantly that same
day. The call of the new President in Charge to the National Armed Force would
not have been a simple request made by a Congressman to be
"accompanied" from "side" to "side" but a direct
order from the Commander in Chief to the Armed Force to obey him as established
by the Constitution. If the SEBIN policemen who tried to arrest Guaidó did not
do so because they had a lower investiture, imagine how he would have been
President of the Republic!
The call to
civil society would not have been made by a deputy in his capacity as President
of the National Assembly, but by a young Constitutional President in charge of
the Republic, who, magnified in his leadership, understood the clamor of his
people, putting the supreme interests of Venezuela above the negotiated and
partisan solidarities. The whole country would have followed him, not on
January 23, but on that same day, carving out for history its own date for
future generations. That is the size of the lost opportunity! The foundations
of the government structure would have shuddered and very possibly the story we
would be telling would be another. Let us not lose faith and let us not abandon
the ground. The game is not over and many things have yet to happen in
Venezuela...
Caracas, January 16, 2019
Email: luismanuel.aguana@gmail.com
Twitter:@laguana
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