By Luis Manuel Aguana
Versión en español
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