Hugo Pérez Hernáiz
This week a ruling by the Constitutional Chamber of Venezuela’s highest court, the Tribunal Supremo de Justicia (TSJ) generated criticism as it regulated the right to manifestation. Article 68 of the Constitution of the Bolivarian Republic of Venezuela states that “Citizens have the right to peacefully exercise their right to manifestation, without weapons, and without any other requisites except those established by the law.
The new ruling, according to the TSJ webpage ratifies the right to demonstration, but reminds the citizenry “that demonstration, in Venezuelan law, is not an absolute right understood as that class of law that admits of no restriction, for example the right to life.” Rather, the right to demonstration admits restriction, for example Article 74 of the Transportation Law which requires the obtaining of a permit and prohibits the obstruction of free transit of people and vehicles.”
The November 15 sentence also “prohibits the calling and the carrying out of acts that disturb public order, incite disobedience against authorities and Public Powers, and other actions against constitutional rights and legal order.” Surprisingly, the Constitutional Chamber quotes a previous interpretation of the old Constitution of 1961 as part of its justification for its ruling.
The ruling does not specify exactly who are the authorities competent to judge when a manifestation called by citizens have the potential to disturb public order, nor the criteria of what should be considered a disturbance of public order.
Critics have reacted to this part of the ruling. Opposition linked law professor, Alberto Arteaga said that “this prohibition is violating the fundamental principal of freedom of expression because it criminalizes protest. The sentence is very ambiguous about acts qualified as disturbances of public order, this is very serious and unjustifiable in a democratic system.”
Jesús María Casal, a law professor at the Universidad Católica Andrés Bello and currently legal consultant of the National Assembly, also agrees that the ruling “could be interpreted as an attempt to suspend the right to protest and manifestation.” He also considers that such a ruling could be justifiable under a state of exception, but no such state currently exists. “The sentence is explicitly saying that the Constitution recognizes the right to peaceful manifestation, but then it goes on to say something different, which cannot be the case,” said Casal also in relation to the ambiguity of the ruling.
Executive Secretary of the opposition coalition Mesa de la Unidad Democrática (MUD), Jesús Torrealba argued that the sentence is unconstitutional: “this is a sentence that prohibits the calling of popular and citizen’s protests, not just the carrying out of the actual protests.” Opposition leader Henrique Capriles Radonski reacted in even stronger terms against the sentence: “No judge can be above the people and the Constitution! The latest sentence by the TSJ is null and nobody has to abide by it, period!”