Note: I am grateful to Sergio Saez and Joaquin Chafardett for their valuable input to this article. Any error of interpretation is mine alone.
I believe desirable to summarize the reasons why millions of Venezuelans feel and believe that the Castro-inspired Venezuelan regime of Nicolas Maduro is illegitimate. Political legitimacy has two main components: Origin and Exercise. Origin refers to the manner the actor arrived in power. Exercise has to do with his, her degree of loyalty to the constitution and laws of the country, degree of respect to all citizens and quality of governance.
As a common citizen, with a basic knowledge of the Venezuelan constitution and of the events that have taken place during the last months I would like to analyze these reasons.
1. Legitimacy of Origin
I believe the presidency of Nicolas Maduro is illegitimate of origin because of four main reasons:
(a), The constitution was violated when Nicolas Maduro was allowed to be put in charge of the presidency, since this task should have been performed by the president of the National Assembly, according to Article 233 of the constitution. The naming of Cabello was blocked for political reasons, probably due to Cuban pressure, for fear that Cabello would take over. We must remember that at this moment Nicolas Maduro was Executive Vice-president, this position arbitrarily extended by the Supreme Tribunal of Justice, since Chavez, the only person who could name him a such, was unable to take the oath. In fact, he was probably dead by then ( a death certificate has never been issued).
(b), While Maduro was put in charge of the presidency, he still did so as Executive Vice-president in charge of the presidency, according to Article 236 , numeral 3 of the constitution. As such he could not be presidential candidate, according to Article 239 of the constitution. However, in an act of prestidigitation by the corrupt Supreme Tribunal of Justice, Maduro was magically transformed into President in Exercise, a job which does not even exist in our legislation. In this manner he abruptly ceased to be Executive Vice-president in charge of the presidency to become President in Exercise and, as such, eligible to be a presidential candidate.
(c), Once a presidential candidate , Nicolas Maduro obtained victory, if we are to believe the National Electoral Council, by less than two points. The organized Opposition protested and claimed a fraud had been committed, giving details of irregularities that far exceeded Maduro’s margin of victory. Inexplicably, the Opposition progressively let this protest fade away, which did nothing to increase the legitimacy of Maduro but much to decrease the loss of support for the organized Opposition. Maduro did not bother to comply with his promise to Latin American governments members of UNASUR to recount the votes.
(d) the verification of the candidate’s Venezuelan nationality was never made, a must according to Article 227 of the constitution. To this day no one knows if Mr. Maduro was born in Venezuela or in Colombia. Both the National Electoral Council and the Supreme Tribunal of Justice have refused to comply with this requirement. The tribunal has actually defined this information as “an electoral secret”, after four Venezuelan citizens: Rafael Montero Revette, Elias Buchzer, Jose Maria Zaa and Mercedes Contreras formally requested the Electoral Council to verify this information. For seven months they waited for an answer and, when it finally came, was to say that this information could not be divulged.
Sergio Saez has told me that this failure in divulging this information could and probably should result in the removal of the bureaucrats, according to Article 51 of the constitution.
It seems evident that the negligence of the National Electoral Council and the intentional legal errors of the Supreme Tribunal of Justice on the four aspects mentioned above were part of a premeditated cover-up by both institutions. To add to the illegitimacy of the process, most members of the Board of the Electoral Council were no longer legally in their jobs, their terms long expired.
On the basis of what I have said above I find it reasonable to conclude that the presidency of Nicolas Maduro can be challenged for legitimacy of origin. Until the questions posed above are not clarified to the satisfaction of millions of Venezuelans this presidency will remain highly suspect.
But there is more, According to international experts such as Jean D’Aspremont and Eric de Brabandere, see: “The complementary faces of legitimacy in International Law: The legitimacy of Origin and the Legitimacy of Exercise”, in,
2. The legitimacy of Exercise
In simple terms, legitimacy of exercise has to do with loyalty to the constitution and the laws of the country, with respect for all citizens, with a prudent administration of national assets and resources, with respect for human rights and with good governance and normal governability.
Is this what Maduro’s regime is all about? Or is it the opposite? I think the evidence speaks for itself.
Let us take, for example, the status of the Rule of Law in current Venezuela. I will not give a personal opinion but will quote the evaluation of 99 countries made by the World Justice Project, see :
This evaluation was made on the basis of 10,000 polls and interviews in all the countries surveyed. The Index of Rule of Law is made up of nine factors: “1. Degree to which the government acts within the law; 2. Absence of Corruption; 3. Transparency in government; 4. Protection of Fundamental Rights; 5. Degree of Social order and Security; 6. Validity of Existing Regulations; 7. Quality of Civil Justice System; 8. Quality of criminal Justice System; 9. Informal Justice systems.
In this evaluation, the most complete in its type existing, the Nicolas Maduro government comes in the 99th place, this is, in the last place. Such a dismal ranking allows no excuses or spin. The note of the Institute on Venezuela says: “At 99th, Venezuela is the weakest performer among all indexed countries, showing downward trends in performance across many areas since last year. The country is ranked last in government accountability, owing to an increased concentration of executive power and a debilitated system of checks and balances. Corruption is commonplace (ranking 90th overall and last in the region); administrative agencies justice system, although relatively accessible, loses positions on the back of increased political interference. Crime and violence are also areas of concern, as are the violations of fundamental rights, in particular, freedom of opinion and expression, and the right to privacy”.
What would the OAS or UNASUR have to say about this evaluation? They have supported Maduro’s regime. Would Dilma Roussef, Jose Mujica, Jose Manuel Santos or Michelle Bachelet know of the existence of this ranking? What about the parasitic governments of ALBA? A political regime exhibiting this performance cannot be defined as legitimate of exercise. This evaluation, by the way, was made before the events that have taken place in Venezuela during the last month. Such events lower even more, if that were possible, the ranking of the Venezuelan regime. See: http://www.youtube.com/watch?v=dgu_mCT-wgY
It should seem evident to anyone seeing the Venezuelan events, or listening to Maduro’s rhetoric charged with hatred, or observing the financial and social chaos prevailing in the country, that there is no governability in Maduro’s Venezuela.
But there is still another, powerful argument. Even if the candidate had won the elections as reported, by such a narrow margin, it would be unthinkable for him to govern as if he had won 100% of the votes. For legitimacy of exercise to exist he should recognize that almost almost half of the population voted against him. He should recognize the rights of the dissidence to participate in the formulation of fundamental national policies. He should not try to impose a revolution on half of the population.
And yet, this is precisely what he has been doing. And this why, in strict adherence to Article 350 of the Venezuelan constitution, I do not recognize his presidency as legitimate and will do my best to accelerate his ousting from power. This is also why I oppose those who, due to greed or moral cowardice, keep silent or support the Venezuelan regime.
If Dr.Pangloss could see the Venezuelan situation he could cry. When looking at the Venezuelan chaos only an Insulza can approve, only an Ortega can eulogize, only a Castro can support, only a Dudamel can keep making music, only a Dilma Roussef or a Michelle Bachelet can keep aloof, only a Danny Glover or a Sean Penn can feel enthusiastic, only friendly contractors can become sudden billionaires, only ministers such as Giordani (Planning) or Ramirez (Energy) can maintain the illusion of governing.