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Derecho Constitucional
Rafael Badell Madrid, "Considerations regarding the Statute governing the transition to democracy"
 

CONSIDERATIONS REGARDING THE “STATUTE GOVERNING THE TRANSITION TO DEMOCRACY IN ORDER TO ESTABLISH THE VALIDITY OF THE CONSTITUTION OF THE BOLIVARIAN REPUBLIC OF VENEZUELA”

 Conferencia dictada en Miami Dade College, Florida, Estados Unidos, 07 de febrero de 2019

 

Summary

On February 05th, 2019, the National Assembly, by direct application of the Constitution, issued the Statute Governing the Transition to Democracy as the exceptional and transitory framework with the force and value of a higher legal rule above internal law regulating the recovery of democracy in Venezuela. In 7 Chapters and 39 Articles, the Statute establishes the ways in which to restore constitutional order and rebuild the institutions, in three phases: (i) cessation of Nicolás MADURO MOROS' usurpation of the Presidency of the Republic; (ii) putting in place a Provisional Government until a new President is constitutionally elected; and (iii) holding free elections. The Statute establishes the effects of the usurpation of the Presidency of the Republic, grants the National Assembly special and temporary powers to advance the political and economic transition, determines the re-institutionalization of public authority organizations and defines the powers of the Provisional Government until measures can be implemented for a democratic and universal electoral process in Venezuela to elect the President for the 2019-2025 constitutional term.

 

Summary:

 

I           Introduction

II         Background of the Statute

III        Purpose, legal nature, and aims of the Statute

IV        Situation and effects of the usurpation of the Presidency of the Republic    

V         The National Assembly's Powers established in the Statute

VI        Re-Institutionalization of Public Authority Organs

VII      Provisional Government

VIII     Elections for the 2019-2025 Presidential Term

IX        Transitory and Final Provisions

 

 


 

I          INTRODUCTION

 

            The Statute Governing the Transition to Democracy in order to Establish the Validity of the Constitution of the Bolivarian Republic of Venezuela (hereinafter, the "Statute")[1] enacted by the National Assembly (NA) in direct application of Articles 7 and 333 of the National Constitution (NC) to establish the legal framework that shall govern democratic transition in Venezuela, was published on February 05th, 2019.  

 

            The Statute comprises seven chapters expounding the ways in which constitutional order is to be restored and institutions rebuilt: (i) cessation of Nicolás Maduro Moros' usurpation of the Presidency of the Republic; (ii) installation of a Provisional Government until a new President is constitutionally elected; and (iii) holding free elections.

 

            Article 7 of the NC establishes a fundamental principle in the constitutional rule of law: the supremacy of the NC. Article 7 provides that: "The Constitution is the paramount rule and the basis of the legal system" whereby "All of the people and entities exercising public authorities are subject to the Constitution".

 

            Article 333 of the NC, on its part, is a mechanism for the protection of constitutional supremacy, since it reiterates the validity of the NC even which it shall have been partially unobserved by acts of force or any other means not provided therein (revision, amendment, or Constitutional Assembly); and determines obligations to guard against the NC being ignored, such as the duty of all citizens –whether or not invested with authority– to actively cooperate in restoring effective validity of the NC.

 

            The purpose, scope, and aim of Article 333 are to contribute to restoring the NC when it is no longer applied; in other words, when its effective validity shall have been suspended.  The NA being the only constitutionally elected organ, legitimized by the Venezuelan people´s will, it becomes the only organ responsible for taking decisions tending to restore normality. Article 333 of the NC, therefore, allows the NA, as an organ invested with authority, to enact the necessary emergency legislation to restore lost constitutional order.    

 

            Constitutional order has been broken in Venezuela and it is, therefore, necessary to react through special emergency legislation or resistance as a response or regulatory, exceptional, and provisional reaction for the purpose of restoring the validity and correct working order of the State and the subverted constitutional system.

 

            These are rules that, enacted by direct application of the NC, provide the State with exceptional and provisional tools to prevent the serious and systematic violation of the NC from becoming definitive and thus pose a change of the established constitutional system for something other that would stray from its provisions, its governing principles, the form of the State and the institutions that uphold it.

 

            Within this emergency law, is precisely where the Statute is inserted. This is its origin and explanation.

 

II         BACKGROUND OF THE STATUTE

 

            The immediate background of the Statute are the usurpation of the Presidency of the Republic by Citizen Nicolás MADURO MOROS since January 10th, 2019, and his taking oath as President of the Republic before the Supreme Tribunal of Justice (STJ); the fraudulent elections of May 20th, 2018; the unconstitutional call, election, and establishment of the National Constituent Assembly; and the unconstitutional integration of the STJ, the National Electoral Board (NEB), the Public Prosecutor's Office, the Ombudsman's Office, the Office of the General Comptroller of the Republic, the Office of the Attorney General of the Republic, among others, and also the, likewise unconstitutional, performance of all these organs.

 

III       PURPOSE, LEGAL NATURE, AND OBJECTIVES OF THE STATUTE.

 

            Chapter I of the Statute encompasses the general provisions delimiting the purpose, legal nature, and the principles and objectives of the Statute, and shall govern the transition to democracy in order to restore validity of the NC.

 

1.         Purpose: Legal framework of the democratic transition

 

            The purpose of the Statute is to restore the legal framework governing democratic transition in Venezuela (Article 1 of the Statute); it endeavours put the actions that could stem from Article 333 of the NC in order and to organize and straighten out all possible actions for a return to constitutional order. The Statute regulates the democratic transition process of a system that has separated itself from the NC back to constitutional government.

 

            The transition provided in the Statute thus encompasses three main phases or stages to achieve full restoration of constitutional order, recover the people's sovereignty through free elections, and revert a complex humanitarian emergency in order to recover the system of freedoms, constitutional guaranties, and human rights (Article 3 of the Statute).

 

            Thus, Article 2 of the Statute points out that: "For the purposes of this Statute, transition is understood to mean the democratization and re-institutionalization schedule comprising three stages: freedom from the autocratic regime that is oppressing Venezuela, forming a Provisional National-Unity Government, and holding free elections".

 

1.1       Freedom from the autocratic regime that is oppressing Venezuela

 

            The first stage for democratic transition referred to in the Statute is freedom from the autocratic regime that is oppressing Venezuela. This stage begins with cessation of the usurpation of the Presidency of the Republic by Nicolás MADURO "or any other officers or personalities of the de facto regime", and by declaring inefficacious all the acts performed after January 10th, 2019 by the usurped government; cessation of the duty to obey the usurped authority, by any citizen, whether or not invested with authority, (Articles 10 and 11 of the Statute) and the re-institutionalization of the organs of the Electoral Authority, the Citizens Authority, and the Judicial Authority.

 

1.2       Forming a provisional government

 

            In second place, after cessation of the usurped authority, the Statute provides for democratic transition by way of forming a Provisional National-Unity Government that would temporarily take charge of steering the country and executing a plan for minimum governability until the necessary measures are adopted for free and competitive elections to be carried out and the President Elect is sworn in by the NA.

 

1.3       Holding elections

 

            Last, the Statute determines that democratic transition shall conclude with free and competitive elections to be called and organized by the Electoral Authority, with all the guaranties established in national and international electoral-transparency standards for the election of a new President to hold office for the 2019-2025 constitutional presidential term.

 

            These elections shall be held as soon as possible, pursuant to the Statute's provisions, as soon as technical conditions allow, within a maximum term of 12 months after the transition government is formed (Article 26 of the Statute).

 

2.         Legal nature

 

            The Statute is a regulatory, exceptional, and transitory act, above formal laws, issued by the NA in direct and immediate application of the NC on the basis of Articles 7 and 333 of the Constitution. It includes a declaration of the duty to cooperate to establish effective validity of the NC against acts attempting to ignore and derogate it.

 

            The Statute is of a regulatory, exceptional, and provisional nature, with the force and value of a higher rule above internal law (above formal laws). It is exceptional since it differs from the mechanisms provided in the NC within institutional normality for protection of constitutional order (control of constitutionality and application of a state of exception), and provisional since, once effective validity of the NC is established, its effects shall cease; in other words, its effect or power to change current legislation shall be applicable only for the period or term of duration of democratic transition to restore validity of the NC.

 

3.         Governing principles of the Statute

 

            Article 5 of the Statute, consistent with the provisions in Articles 1, 2, and 7 of the NC, establish its governing principles or higher values; to whit: freedom, justice, equality, solidarity, democracy, social responsibility, constitutional supremacy, and, in general, pre-eminence of human rights, ethics, and political pluralism.

 

 

 

4.         Objectives of the Statute

 

            According to Article 6 of the Statute, consistent with Articles 7 and 333 of the NC, the objectives of the Statute are:

 

1.         to regulate the actions of the different Branches of Government during the democratic transition process pursuant to Article 187.1 of the NC, allowing the NA to initiate the process to restore constitutional and democratic order;

 

2.         to establish the guidelines for the NA to promote and protect the rights of the Venezuela State and its people as regards the international community, until such time as a Provisional National-Unity Government  shall have been formed;

 

3.         to set the bases on which to initiate a citizens process for national reconciliation;

 

4.         to establish the political guidelines for the NA's actions to form a National-Unity Government  that would fill in for the absence of a President Elect until free and transparent elections can be held within the shortest possible term;

 

5.         to define opportunity and celerity criteria for appointing or ratifying the occupants of the offices of the Citizens Authority, the Electoral Authority, and the STJ, pursuant to the NC and the law;

 

6.         to establish the guidelines to guarantee constitutional integration of the National Armed Forces in the democratic transition process, pursuant to the guidelines set forth in Article 328 of the NC;

 

7.         to define the bases for economic transition in the terms of Article 299 of the NC and to revert the complex humanitarian emergency;

 

8.         to establish the general framework for implementation of the reforms intended to recover the people's sovereignty through free, competitive, and transparent elections;

 

9.         to fully restore the Venezuelan State to international organizations for the protection of human rights, voiding the denouncement of the Charter of the OAS, re-ratifying the American Convention on Human Rights and the compulsory contentious jurisdiction of the Inter-American Court of Human Rights, and likewise ratifying the other treaties on human rights in the Inter-American system and the system of the United Nations.

 

IV       Situation and effects of the usurpation of the Presidency of the Republic   

 

1.         Nullity and inefficacy of the usurped government's acts

 

            Chapter II of the Statute expressly and concretely ratifies that all acts of the Presidency of the Republic, it being a government usurped by Nicolás MADURO since January 10th, 2019, shall be considered null and inefficacious under Article 138 of the NC (Articles 9 and 10 of the Statute). Article 138 of the Constitution provides that "Any usurped authority is inefficacious and its acts are null".

 

2.         Cessation of the duty to obey the usurped authority 

 

            Another concrete and valuable legal consequence of the Statute is the cessation of the duty to obey that authority. As a consequence of this, no citizen, whether or not invested with authority, shall obey the orders of the usurped authority, and public officers contributing to the usurpation shall be personally liable, under Articles 25 and 139 of the NC (Article 11 of the Statute).

 

            Thus, all public officers have the duty of abiding by Articles 7 and 333, which, in turn, implies the duty to obey the orders of the legitimate public authorities in Venezuela and ignore the validity and obedience of orders that, having been issued by an usurped authority, violate and undermine constitutional precepts; such officers shall, otherwise, incur in personal criminal, civil, or administrative responsibility.

 

V         THE NATIONAL ASSEMBLY'S POWERS ESTABLISHED IN THE STATUTE

 

            Chapter III of the Statute comprises a series of provisions relative to the actions of the NA and its President, within the democratic transition process.

 

1.         Preliminary item. Constitutional term of office

 

            A preliminary item in these regulations specifically reiterates the term of the NA elected by the people's vote on December 06th, 2015, which, pursuant to Article 192 of the NC shall end on January 04th, 2021. Article 13 of the Statute determines that the new legislature of the NA shall take office on January 05th, 2021, after parliamentary elections are held for that purpose "in the last quarter of 2020, as established in constitutional provisions and electoral laws".

 

2.         Legislative powers

 

            A series of legislative powers is provided to enable the NA to meet the objectives set forth in the Statute, especially as regards the political and economic transition for which it is especially empowered in Article 333 of the NC.

 

2.1       For political transition

 

            The NA shall have the power to issue guidelines for political transition, implying:

 

1.         the creation of legal incentives and guaranties for civil officers and the military to act in abidance by the NC and not obey the orders of the person who, since on January 10th, 2019, has been usurping the Presidency of the Republic or of the other unconstitutionally integrated organs such as the STJ, the NEB, the Public Prosecutor's Office, the Ombudsman's Office, and the Office of the General Comptroller of the Republic, such as to cooperate and participate in the process of transition and restoration of constitutional order;

 

2.         development of a transitional justice system intended to recover human dignity, justice, protection and integral reparation of the victims of human-rights violations, including measures to establish the truth and promote national reconciliation as provided in current human-rights treaties and Article 30 of the NC. Once the usurpation shall have ceased, the NA shall, by law, create an independent Truth Commission in charge of investigating human-rights violations, proposing political and legislative guidelines for reparation of the victims, and promoting democratic education, the culture of peace, and national reconciliation;

 

3.         establish amnesty for citizens, civil officers, and the military who have lost their freedom for political reasons, and granting guaranties for democratic reinsertion of the people who help restore constitutional order, all pursuant to Articles 23, 29, and 187.5 of the NC and the Human-Rights standards in International Law;

 

4.         definition of policies intended to achieve effective compliance with Article 328 of the NC and constitutional integration of the National Armed Forces in the democratic transition process.

 

2.2       For economic transition

 

            On the other part, for economic transition, the NA is, according to the provisions of Statute, empowered to issue laws to address the humanitarian emergency and promote recovery of Venezuelan economy, pursuant to Article 299 of the NC.

 

3.         Political powers

 

            In addition to the NA's proper powers to legislate on matters of national competence and on the operation of the different Branches of Government, the Statute empowers the national legislative organ for a series of actions in internal and international policy.

 

            Thus, Article 16 of the Statute grants the NA the power:

 

3.1       To authorise the Interim President's appointment of permanent diplomatic mission heads, pursuant to Article 236.15 of the NC.

 

            In this sense, since the President of the NA, Juan GUAIDÓ, assumed the Presidency of the Republic as the Acting President, several diplomatic envoys have been appointed in 36 countries, including  Argentina, Chile, Colombia,  Costa Rica, Ecuador, the United States of America, Honduras, Panama, Peru, Brazil, Paraguay, Guatemala, Australia, Luxemburg, Spain, Andorra, Denmark, Dominican Republic, Malta, the Netherlands, France, Portugal, Sweden, Switzerland, Belgium, Rumania, Germany, Austria, Poland, Hungary, Bulgaria, Morocco, and the Czech Republic[2].

 

            It is appropriate to point out that, prior to the Statute, but with a like nature intended to restore constitutional and democratic order, Citizen Gustavo TARRE was appointed Special Representative to the Organization of American States (OAS)[3] for the purpose of coordinating with the Organization the necessary actions for restoration of democratic and constitutional order pursuant to the principles stemming from the Charter of the OAS and the Inter-American Democratic Charter, among other instruments.

 

3.2       To defend the assets of the Bolivarian Republic of Venezuela and its entities abroad, within the framework of control competences established in the NC.

 

3.3       To participate in the investigation of serious human-rights violations and illicit activities in connection to corruption and money laundering, such to ensure recovery of capitals stemming from such illicit activities.

 

3.4       To promote the implementation of international-cooperation mechanisms to address the humanitarian emergency and refugee/migrant crisis, in accordance with International Humanitarian Law and Article 23 of the NC.

 

3.5       To adopt measures that would allow recovering State sovereignty throughout the territory of the Bolivarian Republic of Venezuela.

 

3.6       To organize actions with civil society to promote mechanisms of citizens' participation such as to legitimize the process of democratic transition and aid in the cessation of Nicolás MADURO MOROS' usurpation of presidential authority.

 

3.7       Any other powers assumed by the NA under Article 333 of the NC, the laws of the Republic, or the Statute, with the limitations stemming from Treaties and other international human-rights instruments in force.

 

Likewise, within the international area, the AN shall have the power to adopt decisions as necessary to defend the rights of the Venezuelan State as regards the international community, in order to ensure that assets, property, and interests of the State abroad shall be safeguarded, and promote the protection and defence of the Venezuelan people's human rights, all to be accomplished pursuant to International Treaties, Conventions, and Agreements (Article 15 of the Statute).

 

The NA shall have the job of "restoring the Venezuelan State to the concert of free nations, as soon as possible, as provided in the Charter of the OAS, the Inter-American Democratic Charter, the Charter of the United Nations, and other international instruments, especially those referring to human rights in the Inter-American system and the universal system" (Article 17 of the Statute).

4.         Powers of the National-Assembly's President

 

4.1       Powers as the acting President of the Republic

 

            As previously set forth, Nicolás MADURO MOROS has been usurping the Presidency of the Republic since January 10th, 2019, because, despite his not having been elected President pursuant to the NC, he de facto occupies the Presidency of the Republic, whereby, pursuant to the provisions in Article 138 of the NC, all of the decisions of the National Executive Branch are null as from that date on.

 

Having said this, taking into consideration that there is no specific solution provided in the NC for such an unheard-of situation, the NA, as the only legitimate State authority and representative of the Venezuelan people, is under the obligation of adopting decisions to proceed to restore the validity of constitutional order, on the basis of Articles 5, 187, 233, 333, and 350 of the NC.

 

Thus, in a situation of absence of the constitutionally elected President for the 2019-2025 presidential term that began last January 10th, the NA, exercising its duty to cooperate in restoring the effective validity of the NC (Article 333 of the NC) has appointed its President, Juan Gerardo GUAIDÓ MÁRQUEZ[4] to provisionally exercise the Presidency of the Republic, as the Acting President, considering that the situation is that of an absolute absence as contemplated in Article 233 of the NC.

 

Since the situation does, in fact, differ from the provisions in Article 233, which is the absence of the constitutionally elected President, by reason precisely of the non-existence of conditions for electoral integrity, this article has to be adapted to the actual circumstances as well, whereby the NA President's exercise of the powers of the President of the Republic is not restricted to the 30 days referred to in Article 233 but to the period required to establish the necessary conditions to effectively exercise the office, and the institutional, political, and social conditions for reliable, impartial, transparent, efficacious, free, direct, universal, and competitive elections to be held – at the earliest possible time – for President of the Republic.

 

The Statute also provides that the acts of the Acting President shall likewise be subject to parliamentary control by the NA, pursuant to Article 187.3 of the NC.

 

4.1.1    Special powers for the defence of the rights of the venezuelan people and the State

 

            The Statute establishes a series of special powers for the President of the NA as Acting President of the Republic in order to defend the State's rights.

 

            In this sense, pursuant to the Statute (Article 15.a) the Acting President, subject to NA control and "under principles of transparency and rendition of accounts", can, in the first place, appoint Administrative Boards to steer public institutes, autonomous institutes, civil associations, foundations, decentralized entities, and State Companies. See, as an example of this power, the NA Agreement of March 29th, 2019, authorizing the appointment of an ad-hoc Administrative Board to assume the functions of the stockholder's meeting and board of directors of Petroquímica de Venezuela S.A., the board of directors of Monómeros Colombo-Venezolanos S.A., and the boards of directors of companies in which Petroquímica de Venezuela S.A. holds a share of over fifty percent (50+%), being stockholders of Monómeros Colombo-Venezolanos S.A.[5]

 

            In a like manner, the Statute (Article 15.b) especially empowers the Acting President to appoint a Special Attorney General to judicially and extra-judicially defend the interests of the Republic, State Companies, and the other decentralized public-administration entities abroad, until the Attorney General of the Republic shall have been appointed pursuant to Article 249 of the NC.

 

            Observe that the representation assigned to this Special Attorney General, in addition to representing the Republic stricto sensu, includes judicial and extra-judicial representation of State Companies and of the other decentralized public-administration entities outside Venezuela.

 

            Since State Companies do certainly have their own legal personality, different from that of the Republic, they, in principle, do, therefore, have their own legal representation as determined in their articles of incorporation. But, it is also true that, given the enormous number of companies in which the State directly or indirectly holds shares, both within Venezuela as well as in other countries, and in view of the situation of exception and emergency the country is going through by reason of the deviation of constitutional order, provisionally and transitorily concentrating the legal representation of all State Companies outside the Republic in the Special Attorney General has been a necessary, useful, and efficient measure of administrative reorganization. This includes PDVSA and its affiliate companies.

 

            It is an exceptional measure of protection and securement of State assets outside Venezuela such as to achieve harmony and efficiency in the representation of the State's property interests. This, as previously expounded, is possible from a juridical standpoint given the special rank of the Statute allowing it to be applied with preference over the ordinary legal system until constitutional order shall have been restored.

 

            As to whether execution of this power shall be internationally acknowledged, bear in mind the order issued on May 01st, 2019 by the Appellate Court of the District of Columbia, establishing that, since the Government of the United States of America acknowledged Interim President Juan GUAIDÓ last January 23rd, 2019, it is only the representatives of the acknowledged government who can act in the courts and tribunals of that country. Thus, the representative at all lawsuits heard in the United States is the Special Attorney General of the Republic appointed pursuant to the provisions of the Statute. On that occasion (Case N° 18-7044) the aforesaid Appellate Court did, in fact, deny the appeal filed by Citizen Reinaldo MUÑOZ PEDROZA representing the usurped government of Nicolás MADURO MOROS, when it argued that "It has long been established that only governments recognized by the United States ... are entitled access to our courts ..."

 

            By application of these provisions of the Statute, Dr. José Ignacio HERNÁNDEZ G. was appointed to hold the office of Special Attorney General of the Republic by decision of the Acting President of the Republic, Juan GUAIDÓ, dated February 05th, 2019, passed by the NA at its Ordinary Session of February 06th, 2019.[6]

 

VI        RE-INSTITUTIONALIZATION OF PUBLIC AUTHORITY ORGANS

 

            Chapter 4 of the Statute defines the competences of the NA to renew and legitimate the Citizens Authority, Electoral Authority, and Judicial Authority in its paramount Tribunal, the STJ; and exalts the power to, within the framework of Article 333 of the NC, "determine the occasion on which to fully or partially take the necessary steps that would allow for lapses and legal requirements to be modified such as to recover legitimacy of the Public Authorities" (Article 20 of the Statute). To this effect, the Statute also provides the duty of all the citizens and officers to cooperate with such an endeavour.   

 

            In the foregoing sense, Article 24 of the Statute establishes that Public Authorities legitimated by the NA shall operate transitorily until the first quarter of 2021. The Statute also reiterates that the NA elected in the last quarter of 2020 shall be the one to appoint or ratify the holder of the office of the Citizens Authority, the Magistrates of the STJ, and the Rectors of the NEB, who shall hold office for the full constitutional term as established in the NC.

 

1.         Re-institutionalization of the citizens authority

 

            Article 21 of the Statute provides the NA's power to establish the occasion on which to begin the procedure to either appoint or ratify the holders of the offices of the Citizens Authority, which, according to Article 273 of the NC, are: the Ombudsman, the Attorney General, and the General Comptroller of the Republic.

 

            The Statute foresees that, while Nicolás MADURO MOROS' usurpation continues, it will be impossible for the Republican Moral Board to function constitutionally and democratically and proceed as required in the NC to call the Nominations Evaluation Committee of the Citizens Authority that is to hold a public process through which to obtain a list of three candidates for each organ of the Citizens Authority to be submitted to the consideration of the NA that shall, with the affirmative vote of two-thirds of its members choose who out of the candidates put to consideration shall head the Citizens Authority (Article 279 of the CN).

 

            In the foregoing sense, Article 21 of the Statute, pursuant to Article 333 of the NC, empowers the NA to establish the mechanisms for organized citizenship to, no longer through the Nominations Committee but through academies, universities, and non-governmental organizations, publicly nominate the lists of three candidates to be appointed Ombudsman, Attorney General, and General Comptroller of the Republic, thus "meeting the requirements in Article 279 of the NC".

 

2.         Re-institutionalization of the Supreme Tribunal of Justice

 

            Article 22 of the Statute in general terms provides legitimization of the STJ and points out that, for the purposes of the Statute, "it is the legitimate Justices appointed by this NA pursuant to the Constitution and the Organic STJ Law in its Session of July 21st, 2017" who are acknowledged as such.

 

            On the other part, the Statute provides that the NA shall take steps to appoint or ratify the rest of the STJ Justices appointed in legislatures prior to the 2016-2021 Legislature.

 

            Thus, once all the Justices shall have been appointed and all the vacant positions shall have been filled, they shall all take their posts in the supreme jurisdictional organ of the Bolivarian Republic of Venezuela pursuant to the provisions of the Organic STJ Law.

 

3.         Re-institutionalization of the National Electoral Board

 

            The Statute for democratic transition establishes the necessary appointment or ratification of the NEB Rectors and, in this sense, that the NA exercise its competences therefor as established in Articles 295 and 296 of the NC and in the Organic Electoral Authority Law (Article 23 of the Statute).

 

            Under that constitutional scheme, the Statute establishes that the appointment of NEB Rectors shall be one of the NA's priorities and in that sense, the Electoral Nominations Committee referred to in the aforesaid Article 295, shall exercise its competences "with the greatest possible celerity", while renewal of the NEB has the immediate purpose of holding free and competitive elections that "once the usurpation shall have ceased and the Provisional National-Unity Government  shall have been formed, will allow the consolidation of democracy".

 

VII      PROVISIONAL GOVERNMENT

 

1.         Formation of a Provisional Government

 

            Provisional Government is established in the Statute as one of the stages of democratic transition and is planned in Chapter V of the Statute under the title "Regarding the Formation of a Provisional National-Unity Government".

 

            Provisional Government is a period of temporary governability (transitory) encompassed within the term that goes from cessation of the usurpation of the Presidency of the Republic by Nicolás MADURO MOROS and the subsequent Interim Presidency occupied by the NA President for thirty (30) days until free and legitimate elections are held for a new President of the Republic who shall hold office for the 2019-2025 constitutional term (Article 25 of the Statute).

 

 

 

2.         Appointment of a Provisional President

 

            Article 26 of the Statute provides that, should it prove impossible to call and hold free and competitive elections for the President of the Republic within the thirty (30) days established in Article 233 of the NC, the NA shall ratify the Acting President as the Provisional President of the Bolivarian Republic of Venezuela in order to form a Provisional National-Unity Government that would initiate the second stage of the democratic transition within the framework of Article 333 of the Constitution.

 

3.         Provisional government plan

 

3.1       Rules of Governability and minimum government program

 

            For a Provisional Government to work, the Statute establishes the need of a minimum government plan or program that, together with the rules of governability, would regulate the Provisional Government. In this sense, the rules of governability and the guidelines of the minimum governability program shall be approved by the NA through an agreement and prior consultation with the civil society and political organizations (Article 27 of the Statute).

 

            With respect to the content of the governability plan and the minimum program of the Provisional Government, the Statute states that the guidelines especially established by the AN, pursuant to Articles 17 and 18 of the Statute, for political and economic transition shall be taken into account.

 

            The program governing the Provisional Government shall likewise respect the principles of the social-economic regime and the State's function in economy, both found mainly in Article 299 of the NC that defines the social-productive system of the country and acknowledges the joint initiative of the private and public sectors, productivity, and free competition as its fundamental bases.

 

3.2       International cooperation

 

            In addition to observing the aforesaid rules, the Provisional Government, shall, in its actions, abide by the necessary procedures of multi-lateral organizations and countries of the free world for international financial cooperation, in order to initiate the process of economic transition and go on to reverting the humanitarian emergency (Article 28 of the Statute).

 

            Within the parameters of international cooperation, the Statute likewise determines the permanent presence of international organizations specializing in the defence and guaranty of human rights as an urgent requirement to accompany the democratic transition process and inform the international community of the status of such rights in Venezuela.

 

            To conclude, with respect to intervention by the international community during the Provisional Government, the Statute empowers the latter to request the aid of the international community "to restore State sovereignty in the territory of the Republic". In this respect, the Statute establishes that the Provisional Government can do so only with prior authorization by the NA, pursuant to the competences established in Article 187 of the NC (Article 29 of the Statute).

 

4.         Termination of the provisional government

 

            The Statute provides that the term of the Provisional Government regulated in the Statute shall end when the new President shall have taken oath before the NA, having been elected in free and competitive elections "called and organized for that purpose by the Electoral Authority with all the guaranties established in national and international electoral-transparency standards" to be held at the earliest possible time, as soon as technical conditions allow, within a maximum term of 12 months. In this sense, the Statute establishes a peremptory term in which to exercise the functions of the Provisional President and, therefore, the Provisional Government

 

VIII    ELECTIONS FOR THE 2019-2025 PRESIDENTIAL TERM

 

            The last stage of democratic transitions established by the NA in the Statute includes holding free and competitive elections for a new and legitimate President of the Republic.

 

1.         Measures for the recovery of electoral integrity and assurance of effective exercise of the right to vote

 

            The NA shall, within the framework of the application of Articles 233 and 333 of the NC, adopt "measures to recover the electoral integrity conditions that would allow holding presidential elections for the 2019-2025 presidential term", mainly including the necessary conditions to restore political and other rights to strengthen political organizations.

 

            Along these lines, the Statute proposes that, once the other Public Authorities shall have been renewed and legitimized, measures need be adopted to ensure effective exercise of the rights of free nomination to popular-election offices and voting as provided in the NC and international electoral-integrity standards.

 

            The Statute likewise demands for democratic transition, that presidential election guaranteed by measures that would strengthen political organizations be held both by the NA and the other legitimized Public Authorities.

 

IX       TRANSITORY AND FINAL PROVISIONS

 

            The last Chapter of the Statute, N° VII, establishes a series of transitory and final provisions tending to define matters such as the existence – for execution of the Statute – of parliamentary acts subsequent to the Statute, to be issued by the NA for application of measures and decisions within the framework of Articles 7, 233, and 333 of the NC. The transitory provisions also establish a special transitory regime for steering and managing PDVSA and its affiliates; and a regime for the disposal and administration of State assets.

 

            To conclude, the final provisions refer to publication, coming into force, and compulsory nature of the Statute, by electronic media given the impossibility of having the contents thereof published in the Official Gazette of the Republic.

 

1.         Parliamentary actions for execution of the Statute and residual clause  

 

            The Statute specifically states that execution of the Statute does not end with its coming into force and application. In this sense, it establishes that, in order to allow effective restoration of the NC and the cessation of the usurpation of the Presidency of the Republic, the NA shall adopt "all of the necessary decisions, agreements, and laws to implement the Statute" (Article 33 of the Statute).

 

            Thus, the Statute provides preferential application of its provisions in conjunction with any other decisions and measures adopted by the NA within the framework of Articles 7, 233, and 33 of the NC until the objectives of democratic transition shall have been accomplished.

 

            We would also point out that the Statute includes a residual clause according to which, in order to ensure democratic transition, anything not provided in the Statute shall be resolved by the NA by application of Article 333 of the NC.

 

2.         The transitory regime for PDVSA and its affiliates

 

            Article 34 of the Statute establishes a special transitory regime for Petróleos de Venezuela S.A. (PDVSA) and its affiliates, motivated by the risks posed to these State companies by the usurpation of the Presidency of the Republic and prevailing "over any other applicable regulations and direct the interpretation of any other formalities required in the Venezuelan legal system and the corporate documents" (Article 34.2 of the Statute).

 

            In this sense, the Statute provides that, while the unconstitutional situation of the usurpation of the Presidency of the Republic is present, the Acting President of the Republic (or, President of the NA) shall appoint an ad-hoc Administrative Board for PDVSA, within the framework of Article 333 of the NC and pursuant to Article 15.a of the Statute, under prior authorization control by the NA.

 

            This ad-hoc Administrative Board appointed by the Acting President can be comprised of members residing abroad and shall have the following powers:

 

i.          to exercise the powers of the stockholders meeting and the board of directors of PDVSA;

 

ii.         to appoint the board of directors of PDV Holding Inc., in representation of PDVSA as a stockholder in the company. The new directors of PDV Holding Inc. shall, in turn, appoint the new boards of directors of the company's affiliates, including Citgo Petroleum Corporation.

 

            Having said this, the boards of directors of PDV Holding Inc. and its affiliates shall be under the obligation to guarantee functional autonomy of these companies and, in particular, of PDVSA. The Statute provides that this shall be accomplished by:

i.          autonomous management of the business affairs of PDV Holding Inc. and its affiliates pursuant to commercial efficiency criteria;

 

ii.         mechanisms of control and rendition of accounts exercised by the NA within the scope of its powers;

 

iii.        other applicable mechanisms of control;

 

iv.        detachment from and cessation of any kind of relations with today's usurpers of the Presidency of the Republic;

 

v.         cessation of payments or contributions to PDVSA by  PDV Holding Inc. and its affiliates while the situation of usurpation shall be present.

 

            Bear in mind that these powers have already been exercised as inferred from the NA Agreement that, on February 13th, 2019,[7] authorised "the nomination to occupy the positions in the intervention organ known as 'ad-hoc Administrative Board', to assume the functions of the stockholders' meeting and the board of directors of Petróleos de Venezuela S.A., to act in its name and, as the only stockholder of PDV Holding Inc., to proceed to appoint the Holding's board of directors and, consequently, the boards of directors of Citgo Holding Inc. and Citgo Petroleum Corporation", and the NA Agreement that, on April 09th, 2019,[8] authorised "Citizen the Acting President of the Republic, Juan Gerardo GUAIDÓ MÁRQUEZ, to expand the powers granted to, and the number of members of, the ad-hoc Administrative Board of Petróleos de Venezuela S.A. (PDVSA)"

 

3.         Disposal and administration of State assets

 

            The Statute establishes as a transitory provision to safeguard the assets of the Republic, that the assets recovered through the mechanisms set forth in the Statute's provisions shall not be disposed of or foreclosed until usurpation of the Presidency of the Republic shall have ceased and the provisional National-Unity Government shall have been formed.

 

            Thus, once the provisional Government has been formed, the NA shall issue a special budget law on financial and budgetary matters (pursuant to Article 187, Paragraphs 6, 7, and 8, of the NC) and, in this sense, to regulate the disposal and administration of State assets during the transitory national-unity government term (Article 36 of the Statute)

 

4.         Publication, coming into force, and compulsory nature of the Statute

 

            In view of the impossibility to access and publish the Statute in the Official Gazette due to the de-facto regime and the usurpation prevailing in Venezuela, the Statute specifically provides that the wording thereof, as also the content of any other decisions to be implemented, shall be published through means of disclosure determined by the NA for this purpose (Article 38 of the Statute).

 

            In the foregoing sense, while the situation of usurpation shall be present, any laws and agreements issued by the NA and the decisions issued by the Acting President of the Republic, shall be published in the Legislative Gazette as provided in the Internal and Debate Regulation.

 

            Laws, agreements, and other decisions shall likewise come into force and take full effect on the date they are published in the aforesaid Legislative Gazette, even if in digital format. Thus, the Official Publications Law shall be applied suppletorily.

 

            This Statute was passed by the NA and published as soon as possible to the Venezuelan Nation by digital means on February 05th, 2019; it is, therefore, considered to be valid having full effect as from that date.

 

To conclude, the NA published the content of the Statute to the international community, including, among others:

 

Foreign Governments,

the Secretary General of the United Nations Organization (UNO)

the Secretary General of the Organization of American States (OAS)

the High-Commissioner on Human Rights of the UNO

the Inter-American Commission of Human Rights

the European Union

the African Union

the Organization of Petroleum Exporting Countries (OPEC)

the World Bank

the International Monetary Fund (IMF)

the Inter-American Development Bank (IADB)

the Andean Development Corporation - Development Bank of Latin America



* Doctor of Laws (PhD) at the Universidad Católica Andrés Bello. Professor at the Universidad Catolica Andres Bello (1982). Founder and senior partner of BADELL & GRAU law firm, 1986. Andres Bello Fellowship at Oxford University, 1998-1999. Senior Associate Member of Oxford University. 2006-2007. Lifetime Member of the Political and Social Sciences Academy.

[1] Published in Special Legislative Gazette N° 1 of February 06th, 2019, available on the NA's Web Page, at: http://comisiones.an.gob.ve:8080/admin/views/archivos/Gaceta%20Legislativa%20N%C2%BA1%20Extraordinario_digital.pdf

[2]  Cfr. Legislative Gazette N° 3 of February 06th, 2019, available on the NA's Web Page, at:  http://comisiones.an.gob.ve:8080/admin/views/archivos/Gaceta%20Legislativa%20N%C2%BA3_digital.pdf; Legislative Gazette N° 4 of February 20th,  2019, available at: http://comisiones.an.gob.ve:8080/admin/views/archivos/Gaceta%20Legislativa%20N4%20(1).pdf and

                Legislative Gazette N° 5 of March 27th, 2019, available at: http://comisiones.an.gob.ve:8080/admin/views/archivos/1_4976706969562775637.pdf

[3] Legislative Gazette N° 2 of January 23rd, 2019, available on the NA's Web Page, at:

http://comisiones.an.gob.ve:8080/admin/views/archivos/Gaceta%20Legislativa_digital%20(3).pdf

[4] Cfr. Minutes of the Oath taken by the Board of Directors of the National Assembly, Session of January 5th, 2019, published in Legislative Gazette N° 1 of February 09th, 2019, available on the NA's Web Page, at:  http://comisiones.an.gob.ve:8080/admin/views/archivos/Gaceta%20Legislativa_digital%20(4).pdf .

[5] Published in Legislative Gazette N° 5 of March 27th, 2019, available on the NA's Web Page, at:  http://comisiones.an.gob.ve:8080/admin/views/archivos/1_4976706969562775637.pdf

[6] Legislative Gazette N° 4 of February 20th, 2019, available on the NA's Web Page, at: http://comisiones.an.gob.ve:8080/admin/views/archivos/Gaceta%20Legislativa%20N4%20(1).pdf

[7] Legislative Gazette N° 4 of February 20th, 2019, available on the NA's Web Page, at: http://comisiones.an.gob.ve:8080/admin/views/archivos/Gaceta%20Legislativa%20N4%20(1).pdf

[8] Legislative Gazette N° 6 of April 10th, 2019, available on the NA's Web Page, at: http://comisiones.an.gob.ve:8080/admin/views/archivos/Gaceta%20Legislativa%20N6.pdf




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