By Juan Manuel Rafalli*.
Venezuela lived on January 5th what we could call the most grotesque and gross attempt to defraud the constitutional order in what concerns the functioning of the National Legislative Power. We are not talking about disgraceful rulings or false legal gibberish. These were extralimitations and true acts of force consummated by state security forces that prevented the deputies that make up the majority fraction of the opposition, from entering the chamber of the Federal Legislative Palace to install the annual Board of Directors of the National Assembly, to allow with this the attempt to designate an openly irritic directive.
We will try to explain the episode under the figure of a questionnaire that touches each event or situation, to then draw a conclusion.
- Could the National Guard and the Bolivarian National Police prevent access by opposition deputies to the headquarters of the Federal Legislative Palace? Absolutely not. On the contrary, in accordance with the provisions of the Organic Law on Security and Defense and the Internal and Debate Regulations (RIDD) of the AN, the State security bodies must protect the deputies in the exercise of their parliamentary functions. Preventing the exercise of these functions and, worse still, pretending to assume the function of qualifying the quality of the deputies to attend the session or not, implies an overreach of functions and, consequently, the execution of totally illegal and unconstitutional acts of force that are unaware of the autonomy, functional independence and authority of the National Legislative Power enshrined in articles 136, 137 and 187.20 of the Constitution.
- Is the supposed designation and swearing that occurred at noon at the headquarters of the Federal Legislative Palace constitutionally valid? Such an event does not constitute a valid designation or oath. The annual designation process of the Board of Directors of the AN constitutionally planned for January 5 of each year is governed by the provisions of the regulations of the AN. In accordance with article 11 of that Regulation, at the session of January 5th of each year, or at the earliest possible date if it was not possible to meet that day, a special (ad-hoc) Commission must be established to conduct the process of appointment of the new Board of Directors under the direction of the President of the Board of Directors in office, or his/her substitute. In fact it is before the plenary session of the AN and through that Commission that the applications for the integration of the new Directive are presented. All this implies that: (i) it was required to meet with a number of deputies representing the minimum quorum of operation; (ii) the designation of the special Commission that will execute the designation process; (iii) the active participation of the Chairman of the Board in functions as head of that Commission; (iv) the receipt of applications before the validly constituted plenary and (v) the vote of all the Deputies present to elect each office by simple majority. None of that happened. Therefore in the hemicycle, on January 5, 2020 there was no constitutionally valid session or vote or swearing. Then it constitutes an act without legal efficacy from which valid effects cannot derive.
- In the absence of opposition deputies, could the new Directive be appointed with the present deputies? Flatly no. These deputies were elected until January 5, 2021, so it is a duty and an inherent right in office to resolve who must be part of the Directive of the Parliament every year by mandate of article 194 of the Constitution. But even more bluntly: even if their decision to not attend had been voluntarily, it was necessary to fully comply with the regulations and, in accordance with article 12 thereof, install a “Preparatory Commission” chaired by the President of the Board of Directors in office ; that is, the deputy Juan Guidó, who would take the necessary measures to achieve the session and the effective designation. By the way, within these measures and under that exceptional situation, the new remote voting mechanism could be included. That is, in no case could the few deputies present be able to meet without a minimum operational quorum, let alone designate a new Directive, as it was intended to do, without the presence and active participation of the President of the Board of Directors in office, Juan Guidó. Also note that their absence was due to deliberate acts of force that prevented the deputies from attending, so the motivation used to justify this unconstitutional and illegal proceeding also turned out to be cynicism.
- Is the appointment and swearing procedure before the oldest deputy valid? No way. The performance of the longest-running deputy as the driver of the designation process of the National Parliament Directive, is only given and exceptionally, for the designation corresponding to the first year of the Legislative Constitutional Period in accordance with Article 3 of the regulations. This is justified, since that is the only year of the legislative five-year period in which there is not yet a functioning Directive. Note that this procedure cannot be applied by analogy, since this figure only exists when it is a situation that does not have an express regulatory treatment, and in this case, as we mentioned, the rulings contain the entire process for the designation of the Directive of the National Assembly from the second year of the constitutional period, including the specific case of lack of quorum.
- Is the designation of the new Directive constitutionally valid in the afternoon session, held outside the National Assembly? In the absence of the session due to the acts of force unleashed in the morning hours, according to the rulings, the President of the AN could convene a meeting as soon as possible to comply with the constitutional mandate to designate the annual Directive of the AN. He did so by calling the session on January 5, 2020 in the afternoon at the headquarters of the newspaper El Nacional. Regarding the validity of this session, we must observe that: (i) Article 1 of the RIDD allows the AN to session outside the Federal Legislative Palace by decision of its members, and even more so if there are situations as extraordinary as those that occurred during the morning . (ii) The call to session was public, notorious and intensely disseminated. (iii) About 100 face-to-face Deputies attended, which exceeded the operating quorum; (iv) All the deputies had full access to the venue where the session was held. (v) Both the nominations and the voting for each position observed the provisions of the RIDD and the results were not objected by the deputies present at the session. As a consequence of the above, we must conclude that this session was valid, and the designation and swearing in of the new AN Directive for the 2020 legislative year with full legal effects inside and outside the country.
- And the Supreme Tribunal of Justice? For some time, the judgments emanating from the Supreme Tribunal, beyond their organic questioning, suffer from serious vices in their legal argumentation, and only seek to please political positions and interests. But this time, in addition to confronting serious obstacles to justify the unconstitutional rudeness of what happened in the hemicycle of the Federal Legislative Palace, the Tribunalwill face its own previous decisions, because: (i) It has ratified and admitted that the mandate of the elected deputies in 2015 ends in 2021. (ii) The absurd pronouncement on the supposed and impossible collective contempt of the NA, also infects the purported and unlawful designation of both the deputy Parra and the other members of the Board of the AN who today tried to seize parliament unconstitutionally.
Conclusion: The events that occurred on January 5, 2020 in the Federal Legislative Palace cannot be qualified as a valid session of the AN to designate the Board of Directors of the Assembly, since the minimum quorum of operation was not even fulfilled. The acts of force executed by state security forces to prevent the access of the deputies opposing the palace are unacceptable, go against their function of protecting the parliamentarians and imply the qualification of the deputies who could meet, therefore they are unconstitutional and civilly reprehensible. Consequently, the only valid session of the AN was the one that took place on January 5, 2020 at the headquarters of the newspaper El Nacional, in which the rulings were fully complied with a sufficient number of parliamentarians to meet and an unjustifiable vote that resulted in a new Board of Directors validly designated for the legislative year 2020.
*Juan Manuel Raffali is a lawyer, Constitutional Law expert and university proffessor at the Catholic University Andrés Bello and many other venezuelan academic institutions