Venezuela: is Guaidó’s rise to power constitutionally unsound or is the presence of Russian military specialists a “material” imposition and/or occupation of alias Cubazuela?

 In human rights, international conflicts, state

We need to start by mentioning that this article is written in English, not just because that way it could impact more people, but, since, as stated in article 9 of the actual Constitution of Venezuela, English will be analogical to the native languages, since, to start, Spanish was not originally there, and, disregarding those persons will be forced to defend their rights before supranational institutions, like the International Court of Justice, either in French or English (and yet that may solely be for historical and practical reasons); nevertheless, there is a palpable and objective influence of English in that territory, even if just by those Venezuelan nationals who live, per example, in Miami, Florida, in the United States of America (some of them who are there by means of this situation). 

Second, it might be understandable the revolutionary defense done by characters like Fidel Alejandro Castro Ruz, especially in aspects like notarizing the absolute disarming of the Revolutionary Armed Forces of Colombia, becoming such group a political branch, represented before the institutions of the Colombian state; nonetheless, even the Republic of Cuba is under a new Constitution, so there is no material connection with the historical leader of Cuba, and less there is a constitutional link.  

Third, it is, in fact, necessary to provide minimum goods to the people, and the so-called economical wars are not the best scenario, but those wars and sanctions have legitimacy in what could be regarded as arbitrary acts, like the annexation of Ukraine’s Crimean Peninsula, including the Autonomous Republic of Crimea and Sevastopol, and, also, in issues like the normalization or the institutional defence of piracy, that, since there exists a patent globalization, it affects those countries and persons who create, since their works lack of the proper protection, discouraging their creativity and demotivating them to create, generating invalid dividends for those who copy, what has not solely an economic impact in monetary capital (in the financial losses or reductions), but in “moral” capital (in the discouragement for the financial profits or increments). This not to say the economic impacts the arbitrary disrespect to the private property has in the states, since is logical for the investments, especially the long-term investments, to fly away when facing that “institutional” anarchy and those “constitutionally” inexistent guarantees. Because the idea of the state interfering in the economic activity for subjective reasons, generates losses or reductions, by means of misunderstanding that the people are equal, but in their capacity, precisely, to profit or increment. So, if that capacity is nullified by means of arbitrary and material acts, then the whole society is affected not just in their monetary capital (since the people will not have resources to have more financial profits or increments in order for other people to have them as well), but in the “moral” capital (since the people will have a “moral” loss or reduction in their willingness to generate profits or increments, that, at least, eventually, will impact the whole society). However, these acts of arbitrary economical intervention have acquired certain legitimacy or popularity in the legal respect to the humane spheres of rights of the people, but most of its popularity reside, precisely, in the idea of generating general discouragement of the financial profits or increments, rooted in particular financial losses or reductions (expropriations, nationalizations, disrespecting the created works, corruption, interfering in the economic activity for political reasons, etcetera); this, most of the times, through assistance focalized in particularly disadvantaged groups, what generates “organized groups of clients” or clienteles that unconditionally will stand for the particular financial losses or reductions, since they will have a, yet very poor, monetary and “moral” profit or increment. And all this is “legitimized” in the dogma or false notion that those particular financial losses or reductions, will generate general equal conditions, ignoring that even if those equal conditions were hypothetically possible, if just by means of the relativity, will be, indeed, logically impossible; hence that general discouragement of the financial profits or increments is no more than a fallacy (that, alas, in many cases is utilized to impose dictators, or even to tyrannize societies). 

Forth, we take notice there is officially no military base of the Russian Federation in Venezuela, and that there are solely some specialists fulfilling their contractual obligations. So, disregarding we lack the understanding capacities to conceive how, to start, strategical bombers could be characterized as a specialist fulfilling an obligation; ignoring that fact, we write the present letters to answer two questions. First: is Juan Gerardo Antonio Guaidó Márquez’s rise to power constitutional or is the Russian presence in Venezuela just a “material” imposition? Second, following it: is the work of those specialists constitutionally normal? 

We need to start by signalizing that since the preamble of the Constitution of Venezuela, decreed as such by the people, it is the National Assembly (as the permanent constituent) the institution through which the people exercise their original power, so there can be a free and sovereign homeland. 

So, notwithstanding the president is indeed the head of state, as stated in article 233 of the Venezuelan Constitution, she and/or he can be absolutely lacking, since the original power is exercised by the people through the National Assembly (institution that obviously cannot be declared as unconstitutional by the Supreme Tribunal of Justice, because, de facto, will be self-destructing the Constitution of Venezuela, generating a constitutional crisis that will logically imply the inexistence of the Constitution of Venezuela itself, through which, alas, the people exercise their original power, and what, furthermore, was decreed as such by the Venezuelan people). This could be so, for example, due to her and/or his mental incapacity, by means of the popular revocation of her and/or his term, or, as is the case, following that that position was constitutionally abandoned. 

So, if the reason for her and/or him to “take possession” before the Supreme Tribunal of Justice, as stated in article 231 of the Constitution of Venezuela, was because of her and/or him was absolutely lacking, following that that position was constitutionally abandoned; thence, it was not because a supervening motive, but because her and/or him was absolutely lacking; and a declaration of the Supreme Tribunal of Justice, done, alas, by means of that constitution, calling the National Assembly to be an “usurper”, cannot logically exist neither, unless it is by “usurping” the decree of the people, or, what is the same, by self-destructing the Constitution of Venezuela, generating a constitutional crisis that will logically imply the inexistence of the Constitution of Venezuela itself.

This can logically be deduced, since the Supreme Tribunal of Justice, under that constitution, cannot be named or act without the authorization of the National Assembly, and less it can, a sensu contario, according to article 266, fraction 2, of the Constitution of Venezuela (under which the Supreme Tribunal of Justice actually acts); less can that tribunal of justice impose the president, since even to remove her and/or him, it needs the authorization of the National Assembly. 

Not to say that the National Assembly, according to article 265 of the Constitution of Venezuela, can remove them. And, logically, what stronger reason could there be to do so, than them, the Supreme Tribunal of Justice, self-destructing the Constitution of Venezuela, under which they act, generating a constitutional crisis that will logically imply the inexistence of the Constitution of Venezuela itself, by means of declaring “usurper” the institution through which the people exercise their original power, so there can be, and they can have, a free and sovereign homeland?

And yet there can be a mayor constitutional reform, as stated in title IX, chapter II, of the Constitution of Venezuela, but, according to article 343, it can only be initiated either by the National Assembly, the president or a considerable part of the people, id est, not by the Supreme Tribunal of Justice, as de facto is occurring; and, according to articles 344, 345 and 346 of the same constitution, can only by processed by the National Assembly, and if so, must be issued by the President of Venezuela.

And yet it is constitutionally possible by the people to call for a National Constituent Assembly in order to give themselves a new constitution, but that can only be initiated when the President of Venezuela in her and/or his Council of Ministers, two thirds of the National Assembly, two thirds of the Councils of the Municipalities and fifteen percent of the suitable people; when all those persons and institutions concur. Id est, the text in Spanish of article 348 of the Constitution of Venezuela says “the initiative” to call for the National Constituent Assembly by the people “can be done” by the president, the National Assembly, the Councils of the Municipalities “and” fifteen percent of the suitable people (therefore, not one “or” the other of the mentioned). And is irrelevant if the text of the Constitution of the Bolivarian Republic of Venezuela, as should have later entered into force, uses semicolons, since, grammatically, is just because of the extension of the ideas. This, disregarding the Official Gazette of the Republic of Venezuela, in its number 36.860, on Thursday, December 30, 1999, year CXXVII, month III, issued in Caracas, Venezuela; overlooking that that public document, textually published: “Article 348. The initiative to call for a National Constituent Assembly can be done by the President of the Republic in Council of Ministers, the National Assembly, by agreement of two thirds of its members, the Councils of the Municipalities, by vote of two thirds of them, and fifteen percent of the electors registered in the electoral registry” (Artículo 348. La iniciativa de convocatoria a la Asamblea Nacional Constituyente podrá hacerla el Presidente o Presidenta de la República en Consejo de Ministros, la Asamblea Nacional, mediante acuerdo de las dos terceras partes de sus integrantes, los Consejos Municipales en cabildos, mediante el voto de las dos terceras partes de los mismos, y el quince por ciento de los electores inscritos o electoras inscritas en el registro electoral). So, the posterior versions and corrections that may use “or” instead of “and”; discounting are irrelevant, since do not correspond neither with the text that was approved by the so-called National Constituent Assembly of 1999 (as supposedly must have later been summited for the people’s approval on a referendum); since neither correspond with what was approved, nor with what actually was published; thus, yet irrelevant, those versions are, indeed, suspicious.

And this can logically be deduced if we attend article 343 of the Constitution of Venezuela, since “the initiative” to a mayor constitutional reform can be exercised by the National Assembly by the vote of its majority, by the President of Venezuela in her and/or his Council of Ministers “or” by fifteen percent of the suitable people. And, then, according to article 344 of the same constitution, it will be processed by the National Assembly. Hence, it will be illogic if the President of Venezuela by herself and/or himself, or even with fifteen percent of the suitable people; if her and/or him cannot process a mayor reform by herself and/or himself alone, it will be unsound her and/or him can actually initiate the in omnibus reform of the totality of the constitution, displacing the National Assembly that must form part of any initiative for a totally new constitution or that shall process any mayor reform to it.

Thence, there can be a call for a National Constituent Assembly, if, and only if, the president, the National Assembly, the Councils of the Municipalities and fifteen percent of the suitable people initiate it. The same way there can be a mayor reform by initiative of the National Assembly by the vote of its majority, by initiative of the President of Venezuela in her and/or his Council of Ministers or by initiative of fifteen percent of the suitable people.   

So, if the Venezuelan people, loyal to their republican tradition, their fight for independence, for peace and for freedom, according to articles 333 and 350 of the Constitution of Venezuela; if the Venezuelans will disown any regime, legislation or authority that opposes the values, principles and constitutional guarantees they themselves decreed, or that will diminish their human rights; thus, is logical they, the people of Venezuela, will also do so with such spurious National Constituent Assembly, not to say with a Supreme Tribunal of Justice that is self-destructing the Constitution of Venezuela, generating a constitutional crisis that logically imply the inexistence of the Constitution of Venezuela itself, by means of declaring “usurper” the institution through which the people exercise their original power. Moreover, if that constitutional crisis has also caused an humanitarian crisis of massive proportions, with global and geostrategic implications, and death, persecution, starvation, violence, etcetera.

Not to say that the constitution that is massively publicized before the people, the media and the international community; that small blue book that here and there they (even noisily, by means of coprolalia); that, at least in their relativity, hollow book they brag are defending, is no other, but this one we are talking about. So, under that logic, is typical they will publicly call to not permit by the “good way” (under the constitution) or by the “bad way” (outside of the constitution), a new order, since, precisely, the “President of Venezuela” and the Supreme Tribunal of Justice, are acting by what they call the “bad way”, id est, outside of the constitutional order (violating the principles of liberty, independence, peace, solidarity, coexistence, the right of equality without discrimination, to freely participate in public matters, directly or through elected representatives, the obligation of the state and the duty of the society to facilitate the more favorable conditions for its practice, and for the exercise of their right to vote through free elections, et alia, contained, amongst others, in the preamble and articles 62 and 63 of the constitution of that free and sovereign homeland). 

In other words, to conclude, from the National Constituent Assembly, to the decisions of the Supreme Tribunal of Justice, and any subsequent act which may emanate from such, are not only acts of logical and constitutional insanity, but a “material” imposition by a yet imperialistic, yet camouflaged as “revolutionary” and/or “socialist” dictatorship, alias Cubazuela. 

Nota bene: in our opinion, by means of the National Constituent Assembly having less than zero constitutional existence, not to say less than zero legitimacy, and, then, all acts or decisions from it emerged, following that fatality, including the elections by that inexistent institution called, which, amongst other issues, “permitted” Nicolás Maduro Moros “solemnly swear” before the Supreme Tribunal of Justice, and, thus, to visit and be backed-up by certain countries; since that is the constitutional hypothesis hereunto faced (considering, furthermore, that in accordance with article 233 of the Constitution of Venezuela, there was, indeed, an absolute lack of president in that country, following that that position was constitutionally abandoned; thence that Nicolás Maduro Moros was, and is, solely a person “materially” pretending to constitutionally act as head of state (under the alluded constitution to boot)); assessing the present circumstances, the only logical, and constitutional, solution, is for the National Assembly to call for verifiable free elections, under its supervision, that will satisfy all the Venezuelans, what certainly must be backed-up and accompanied by the civil international community (the United Nations, the Organization of American States, etcetera), by the neighbors that are severely affected by such situation (the Republic of Colombia, the Federative Republic of Brazil, and the Co-operative Republic of Guyana), by the Venezuelan Army, and by the people that decreed that constitution; id est, facing such constitutional, and humanitarian, crisis, there is nothing to negotiate among parties, since one of the “parties” lacks of any possible constitutional existence beyond that “material” imperialistic imposition.

Otherwise, the people must call for a valid and legitimate National Constituent Assembly, in order to give themselves a new constitution, but, in accordance to article 348 of the Constitution of Venezuela, initiated by, and only by, the acting President of Venezuela (that, as stated in article 233 of that same constitution, is Juan Gerardo Antonio Guaidó Márquez), in Council of Ministers, two thirds of the National Assembly (the institution through which the people exercise their original power), two thirds of the Councils of the Municipalities and fifteen percent of the suitable people; that is (as actually occurred with the presidential decree number 2830 that called for an artificial National Constituent Assembly (id est, this time, not even, at the minimum, by means of a previous popular advisory endorsement, as at least happened with the National Constituent Assembly of 1999)); namely, not by one or the other alone, but (as should occur under the Constitution of Venezuela they (Nicolás Maduro Moros, and those who “materially” impose alias Cubazuela, themselves) publicise); as that Venezuelan constitution provides, if so, the future and hypothetical National Constituent Assembly, shall be called by, and only by, the aforementioned, but altogether.

Finally, disregarding the abundant questionings to the process through which the Constitution of Venezuela of 1961 was substituted by the Constitution of Venezuela of 1999, it is certain the constitution of 1961 did not included at all the initiative to call for a National Constituent Assembly; even if by means of ignoring the decisions of the in that time Supreme Court of Justice of Venezuela, the constituent was called anyways. That, today inexistent, Supreme Court of Justice of Venezuela, ruled the people could have expressed their opinion concerning a National Constituent Assembly through a popular advisory endorsement (as was established in the law), that from such, could have emerged the political command for the initiative and process (perhaps later regulated in the law), through which the public powers could have called for (initiated) a constituent process (as perhaps regulated in the law), and that the popular sovereignty could not be limited by such public powers; but never ruled that there could have been a new constitution without reforming the original constitution of 1961, so it could have included the specific and hypothetical characteristics of the initiative and process (perhaps later regulated in the law), through which the public powers could have done it; what signifies such favourable opinion of the people, was limited so the constitution of 1961 could have included the possibility for the constituent, since it is logically impossible for something that is done within a constitutional order (the popular advisory endorsement established in the law), to infringe it to the point of obliterating it (as, on the opposite, tends to occur, for instance, when the constitutional order becomes absolutely inexistent, after wars, revolutions, civil wars, catastrophes, etcetera). Hence, the decision to do it by means of a popular advisory endorsement, was, logically, arbitrary, if confronted with the decisions of the Supreme Court of Justice of Venezuela, since the opinion of the people solely must have been to command for establishing in the constitution an initiative and process (perhaps later regulated in the law), through which the public powers could have called for a constituent process, id est, not this process called, ipso facto, by one, the newly elected, executive power (not to say, actually, only 34.9% of the suitable people voted in favor for it). 

Overlooking the herein expressed, the exposition of reasons of the Constitution of Venezuela of 1999, indeed recognised the possibility for an initiative and process (perhaps later regulated in the law), through which the public powers could have called for a constituent; that that possibility was formally inexistent in the constitution of 1961, and was deduced from the aforementioned rulings of the in that time Supreme Court of Justice of Venezuela; however, it certainly states that in the text of the new constitution (of 1999), that possibility became a clear and actual norm, expressing the most accurate democratic definition in regards to the popular sovereignty. 

Therefore, as stated in article 348 of the Constitution of Venezuela of 1999, the process through which the public powers can call for a constituent (even neglecting the particular process to do so, must perhaps later can be regulated in the law); as has been expressed, shall be initiated by initiative of the public powers contained in the President of Venezuela in Council of Ministers, two thirds of the National Assembly, two thirds of the Councils of the Municipalities and fifteen percent of the suitable people, id est, notwithstanding the initiative to abolish the constitution of 1961, was, unconstitutionally, disrespecting the rulings of the in that time Supreme Court of Justice of Venezuela, pulled out of the hat, because it was absolutely inexistent; in the constitution of 1999, that hypothesis, fails to occur.

Last but not least, however, since the whole process to give birth to the “Constitution of Venezuela” of 1999, was so severely constitutionally flawed, logically, and constitutionally, the appropriate thing to do, will be re-instituting the Constitution of the Republic of Venezuela decreed on January 23, 1961, since the Constitution of the Bolivarian Republic of Venezuela, as should have later entered into force on December 15, 1999, is, nonetheless, altho, an inexistent and arbitrary “act”, whose only merit was, and is, that by means of 34.9% of the suitable people voting in favor for it; by dint of such show of hands, its virtue was, and is, that, at minimum, the residual 65.1% of the Venezuelans, were ignored; neglecting that according to article 4 of the original constitution of 1961, the sovereignty also resided in them. Moreover, if via that unconstitutional hypothesis, the decisions of the Supreme Court of Justice of Venezuela, were, “materially”, overruled, too (not to say, in an ad satis example of so-called populism; not to belittle that that “act”, also “overruled” the Supreme Court of Justice itself). Consequently, as a result of the valid arguments herein exposed; for those reasons, the Constitution of the Bolivarian Republic of Venezuela, and, subsequently, the Bolivarian Republic of Venezuela itself, both are, logically, sudden wishes or ideas (tricks to delude fools), absent of a constitutionally valid explanation (since were “constituted” by means of a constitution (the Constitution of the Republic of Venezuela of 1961) that did not contemplated that hypothesis (and there was, in fact, an actual and operative constitutional order, which cannot be explained, but by means, precisely, of that constitution of 1961).

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