Sunday, October 21, 2007

Votes do not make the constitutional reform legal

Intro (for a few days). This is the first article in a series of comment articles that will be published through the next few weeks. They will be based in part on the reviews that have been published here and that are compiled here and here in Spanish the objective is to make as much sense of the as possible of the autocratic project of chavismo. These reviews will incorporate as many writers as possible, and you are welcome, even if pro-Chavez, to propose a text for review.
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Votes do not make the constitutional reform legal (by Mousqueton)

Democracy is not a one size fits all kind of concept. There are many kinds of democracy. There are Monarchical Democracies, Parliamentary Democracies and even Imperial Democracies such as the Japanese. Since 1999 we also have a Bolivarian Democracy. All of these democracies though share one same characteristic; they are all Republican Constitutional Democracies.

In a lighter note you could say that they are different kinds of “Arepas” (Reina Pepiada, Carne Mechada, etc.) but they are all “Arepas”.

There are also Popular Democracies (Cuba) and I would even venture and say that we now have what could be considered Religious Democracies such as Iran. They also hold elections but they are completely different systems of government.

These democracies are not “Arepas”; they are “Tortillas”; and, while both are made of corn flour, millions of Mexicans and Venezuelans can attest that, you do not need to be a neurosurgeon to understand that they are absolutely different.

A Republican Constitutional Democracy is a system in which the people elect representatives to legislate for them but who are bound by restrictions and limitations as expressed in a written constitution which is enforceable in a court of law.

This is not the case of popular democracies where voters legislate by majority vote. They vote for what these democracies like to call “initiatives”; an innocuous name given to a poison which has destroyed countless societies in the past and why Venezuelans decided to have a constitutionally limited Republican Form of Government.

It is fair to say that the first question that arises from this explanation is; why should we have representatives legislating and not the people themselves?

To help answer this question I would like to quote a text from the archives of the United States Constitutional debate (Federalist Paper No. 63) that gives an emphatic answer to this question.

"There are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice and truth can regain their authority over the public mind..."

People tend to believe that democracy is only elections and that voting things out makes them right. This is not correct.

In layman terms, holding elections, which is the most identifying characteristic of democracy, does not guarantee a free, fair and just society. In fact elections alone can perpetuate an abusive, tyrannical, dictatorial and totalitarian system of government without justice and respect for individual rights.

In Venezuela, for example, the majority of the voters could decide that the “Indigenas” (natives) have no rights; that they can not have their own culture, language and land. This, even if approved in an election by the majority of the people, would still be abusive, wrong and unacceptable.

Therefore to protect freedom from freedom itself, Republican Constitutional Democracies are bound by Constitutions that set the basic principles and rights of the people and that therefore can not be voted against. They also include provisions so that no one, either by force and/or election, can pose a threat to and/or abolish those principles and rights.

These principles and rights are what is known as the “Spirit of the Constitution” and though they may be expanded and enhanced through constitutional modifications they can not be abolished and/or curtailed.

When Venezuelans voted for the Bolivarian Constitution of 1999 they went a step further in protecting their Republican Constitutional Democracy. They voted to include article 340 and 342 to protect the Constitution from any assault and to make any such attempts, be them forceful or elective, absolutely illegal.

They introduced what is known as a “poison pill”. This is; it is unconstitutional to introduce modifications to the Constitution that modify the fundamental principles and structure of the text of the Constitution.

Most of the modifications being proposed today are a clear attempt to transform the Venezuelan republican and constitutional democracy into a popular democracy which happens to be the democratic system of choice of all dictatorships and totalitarian governments. We say, the system of choice, because, as paradoxical as it may be, the system uses freedom, the right to vote, to kill freedom, the right to be a free individual. In essence, it is democracy committing suicide.

Further, the modifications try to introduce a competing and separate government structure that is centralized and subject to the executive power in order to compete with the federal system of government mandated by the constitution.

The problem is that there is no path to do that within the Bolivarian Constitution of 1999. It doesn’t matter how many elections you hold and/or how many people vote in favor of a modification, if the proposal violates, abolishes or changes any fundamental principle or the structure of the Constitution of 1999, it is unconstitutional, illegal and null.

It could be argued that the framers of the Bolivarian Constitution of 1999 intended for articles 340 and 342 to forbid any modification, either through amendments or reform, that would challenge only the “Fundamental Principles” that are outlined (articles 1 though 9) under such title in the text of the constitution.

This would be an outrageous argument though since not a single article under the title “Fundamental Principles” (articles 1 though 9) mentions the rights of the people. Without the people the Constitution is just an empty and useless document. The people’s rights are broadly explained in Title III of the Constitution and therefore it is obvious that the “Fundamental Principles” mentioned in articles 340 and 342 are those that are set throughout the constitutional text and not only the ones outlined in the first nine articles.

But even if we concede for a moment that the above negated argument is valid, still the modifications being introduced to the Bolivarian Constitution of 1999 are unconstitutional.

That is why Brunilde Sanso’s comments to Article 230 are so important. In her comment she explains how the modifications being introduced to article 230 violate directly article 4 of the “Fundamental Principles” of the constitution.

This is also why, the comments to the modifications of article 16 are so important. Here as well, the proposed text violates directly article 4 and article 6 of the “Fundamental Principles” outlined in the constitution.

The clear intention of the government to change the political structure of Venezuela through a constitutional reform and substitute it with a centralized system of government is not possible and any attempt to do so becomes “de juris” and “de facto” unconstitutional, illegal and null regardless of how many elections are held and how many people vote for it.

You can not be both in the procession and church at the same time. The government’s attempt to justify this constitutional suicide is like trying to explain the “squareness” of a circle.

If the government wants a different kind of political system and government for Venezuela the only way they can do that is by electing a National Constituent Assembly and have them write a new Constitution.

Should the modifications be voted and approved the way they are, the rule of law will have been broken in Venezuela (article 7) and all acting authorities would be personally liable for it (article 25). Also, the government would be legally liable under international law and hence open to lawsuits by citizens and foreigners who deem their legal rights as violated by the spurious government.

Further, the original text of Bolivarian Constitution of 1999 would continue to be in full force regardless of what the government does or wants (article 333).


Spanish version soon available at “No a la reforma constitucional de Chávez”

-The end-

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