May 5, 2017

Keymer Ávila | @Keymer_Avila

Again I am forced to transcend the issues that concern me to try to give some contribution, from my basic knowledge as a lawyer. We as a country are going through crises of a diverse nature: political, institutional, economic, citizen security, etc. These problems are not normative, nor are they solved by decree or with a Constituent Assembly, on the contrary, a call of this type, at the present time, can bring more problems than it intends to solve, the most serious being to modify our constitutional model and policy that as a people we gave ourselves in 1999, which has not yet managed to materialize or consolidate. Here are some reflections and concerns about this untimely call:

1. The problems that we are currently going through are solved with public policies, not with a Constituent Assembly or with legislative reforms . Confusing public policies with legislative policies not only shows a conceptual precariousness, even more serious, it reveals a political precariousness.
2. For some actors the issue of participation and popular consultation is an absolute, in this there may be diverse interests, in some there is a real belief in democracy; in others, more personal concerns about their popularity or chances of obtaining an elected position. On this point, it must be taken into account that: 1) democracy is not reduced to voting; 2) Not all issues should be subject to popular consultation, for example, issues that constitute a reduction in rights or setbacks: death penalty, increased sentences or others that affect fundamental rights . The latter could be a colossal political and ideological error, the cases of disarmament in Brazil, Brexit in England or Peace in Colombia are recent examples.

Some will be distracted by this and will fall into the game, to satisfy their desire for leadership in personal terms, they will aspire to be constituentists, regardless of the consequences that this process will have for the country.

Questioning this call for a referendum does not mean being against the referendum. If Chavismo needs spaces for debate and re-foundation, this can be done perfectly without putting the Constitution at risk. If the issue is to discuss sectorized public policies, this can be done without endangering the Constitution. They can hold all the congresses, debates, consultations, mobilizations and refoundations they want and estimate without having to put our constitutional model at risk.

Some will be distracted by this and will fall into the game, to satisfy their desire for leadership in personal terms, they will aspire to be constituentists, regardless of the consequences that this process will have for the country. With this they could be applying a PLO to the Constitution itself.

3. The Constitution is the founding letter of our political system , a general instrument where the State model is conceived, and the general guideline and principles of politics, it is not a detailed program of public policies, it is not a regulation, nor a official gazette, not a quick memo from a ministry. The Constitution is not to ensure a certain form of conjunctural public policies, it is to establish the rights that must be satisfied by them. It is impressive to see the effort that Chávez himself made to position the Constitution in the imagination and subjectivity of the people, so that a sector of his so-called heirs now comes to bury it.
4. For Chavismo, this call would mean betraying the original project, the most important “legacy of Chávez”, the 1999 Constitution and the entire unprecedented constituent process that began in 1998. They would put their entire project on a silver platter for the opposition to modify it at your convenience. Furthermore, a Constituent Assembly does not stabilize; on the contrary, it increases instability and ungovernability. Is the government itself generating more chaos? What do you play?
5. For the opposition it would mean not only a distraction from what should be its immediate objective: the regional elections. It is the danger of also losing their Constitution, which they accepted and defended in 2007. It is giving government sectors the opportunity to create a custom-made Constitution.
6. The point is that the 1999 Constitution has been accepted by all social and political sectors of the country, Chavismo was its great promoter and then all sectors, including the opposition, ratified it in 2007 when they rejected the attempt to modify it. the government itself.
7. What did the 2007 reform consist of? The 2007 reform was practically drawn up by the same actors who are currently calling the current Constituent Assembly and who led Chávez to his only electoral defeat.. Apart from indefinite re-election, the proposal was characterized by its centralist character, it expanded presidential powers, the direct and discretionary use of Central Bank resources, militarization, an indecipherable geometry of power, the insertion of the word socialism without any content in this regard, the missions as mere rhetoric (without addressing the institutional problem of these parallel structures and the precariousness of the existing State), reduction of civil and political rights (increase in the percentage for all referendum initiatives, elimination of due process and freedom of information in states of exception), creation of unjustified prerogatives for public officials, unnecessary modification of some aspects of the articles on property, among others.

In the 2007 campaign, the government abused the emotional resource and the personal-affective loyalty towards the president, ten years later it returns with the same error, with the small detail that Chávez, the invincible electoral, is no longer there.

8. If this process is won by either of the two apparently antagonistic poles we will all lose , the Constitution must be protected from both sides . Currently, the conditions are not ripe for drawing up a new magna carta that is the result of a sufficiently pluralistic debate. There is no need for a Constituent Assembly but to comply with the Constitution. The Constituent Assembly cannot be used so that one half of the country denies the other .

Just as the proposal for the Amnesty Law made by the opposition was not the solution to the problems of Venezuelans, neither is a Constituent Assembly, whether called for by the opposition or the government .

9. The Presidential initiative aims at a new Constitution (arts. 347 and 349), it is not a modification or reforms, without counting the latent political functions that will be mentioned later.
10. From the first announcements and the latest actions of the promoters of this Constituent Assembly, everything indicates that its character is regressive and that it will be used to eliminate Constitutional protections against actions that mean a reduction in rights for all, among them: the unconstitutional departure of the OAS or the activities of the Mining Arc, among others related to civil rights such as those related to criminal sanctions.
11. This call for a Constituent Assembly as it has been proposed, in this context, is nothing more than the continuation of a series of unwise political measures , whose immediate referent is found in judgments 155 and 156 of the TSJ .
12. Regarding the formal and strictly legal aspects:
    1. The only one who can convene a Constituent Assembly is the people (art. 347), for this reason a consultative referendum must be held so that it is the depositary of the constituent power itself that decides whether or not to go to that process.
    2. In that same referendum, the electoral bases must be consulted.
    3. The initiative (art. 348) should not be confused with the call (art. 347), it is an initiative to be called by the people. Neither the President, nor the National Assembly, nor the Municipal Councils are the people, they can have the initiative, but the one who calls is the sovereign and he does so through a referendum. No organ of the State can usurp the original constituent power of the people.
    4. The people is not a faction, it is made up of all Venezuelans, Chavistas, non-Chavistas, opposition, ninis, majorities and minorities, that is, all the voters. To do otherwise would violate the right to equality before the law (art. 21) and political pluralism as the highest value of our State and a Democratic Government (arts. 2 and 6).
    5. This consultation must be done by universal, direct and secret vote. If the people decide favorably in this consultative referendum on the Constituent Assembly and its basic statute, it means that the members of an Assembly could be elected, then the result of that process must also be submitted for consultation.
    6. Corporatism : “It will be a Constituent Assembly elected with a direct vote of the people to elect some 500 Constituentists, approximately, some 200, 250 elected by the base of the working class, the missions, the peasants, the social movements ” , pointed out the President, highlighting that there will be between 7 and 8 fronts, where he stressed that sectors of older adults, youth, workers, indigenous people , among others, will have a representative chosen directly . A vote by sectors could constitute a fraud to the Constitution and free, universal, direct and secret voting (art. 63). This is nothing more than corporatism,that it is politically and ideologically conservative, since its objective is “the removal or neutralization of conflicting elements: competition on the economic level, class struggle on the social level, ideological differentiation on the political level.” “At the political level, the corporate model stands as an alternative to the democratic representative model. This advocates the realization of an organic democracy where the individual is no longer valid as a mere numerical entity but as a bearer of precise and classifiable interests. “The State creates the corporation, calls those who work there (…) makes them discuss, organizes, disciplines and guides them” (Bobbio, 2005:372-376). This medieval, hierarchical-paternalistic logic,
    7. In all events, the limit of this Constituent is article 350, it may not contradict the values, principles and democratic guarantees or undermine human rights. Therefore, it cannot contain any setback in terms of fundamental rights, nor can it set aside political pluralism and free, universal, direct and secret voting.
13. Questions: What is wrong with our current Constitution? Is the Constitution the problem or is it the excuse? Is the problem the norm or its non-compliance? Is the problem the norm or are it the institutional actors? Is a Constituent Assembly the priority for us as a country right now? Does a Constituent Assembly solve the food, economic and citizen security crisis?what do we currently have? Will a Constituent Assembly solve the current conflict of intra-power ignorance or will it worsen it? Will a Constituent Assembly calm street violence or increase it? Is not the conjunctural being confused with the structural? Are we not losing the strategic because of the tactical? Is this call aimed at truly emancipating popular participation or is it a device to extend the political power of a group? Does a Constituent Assembly stabilize or destabilize? Does it generate greater governability or greater ungovernability? There were no resources or institutional conditions for the regional elections, but there are for an express Constituent Assembly?
14. To do?
    2007. Defend peacefully, institutionally and legally, the current Constitution that belongs to all and that was approved in a consultative referendum in 1999 and ratified in 2007.
    2008. Demand from both political sides that the Constitution be complied with and that regional elections be held as soon as possible. This would empty the protests of content and reduce the conflict. In addition to constituting a legitimate and legal agenda for both sectors.
    2009. Demand respect for the direct, secret and universal vote.

This is a dangerous political juggling act on the part of the government that seeks to avoid competing electorally in the regional elections (which had to be held last year) and possibly also in future presidential ones, erase institutional actors that are not affected by them, and make a tailored suit. With this they confess that the Constitution is an obstacle to the arbitrary exercise of power, which is why they want to end it.

This is not only a delaying tactic, a “ red rag ” or “ smoke pot ”, which will distract everyone from the issues that really afflict us: scarcity, inflation, insecurity, political polarization, institutional and legitimacy crisis, expiration of constitutional lapses of mayors and governors, etc. None of this can be solved with a Constituent Assembly, on the contrary, it would delay its approach and sharpen them. But even more serious, it would mean abandoning our political and constitutional model. This is not a simple electoral process anymore.

This proposal is an example of how the logic of managing the country as a farm, as a supply, prevails, regardless of the real and daily problems of the people, in which the Constitution is conceived as a rag or a pot. This propaganda will be very expensive for everyone, in many ways.

Publicado originalmente en Provea