María Alejandra Díaz (Popular Democratic Front): ‘Institutional avenues for resolving Venezuela’s political crisis are being dangerous closed off’

Constitutional lawyer and human rights activist María Alejandra Díaz has become a symbol of why, as she puts it, the rule of law in Venezuela is “in frank deterioration” after the July 28 presidential elections.

Given lingering doubts over who won — the National Electoral Council (CNE) declared President Nicolás Maduro the winner, but the right-wing opposition claims it has evidence indicating otherwise — many want the results published to verify who won and prove beyond doubt the legitimacy of any incoming government.

That is why, on November 4, Díaz filed a legal recourse before the Constitutional Chamber of the Supreme Court of Justice (TSJ), requesting that the court ask the CNE to comply with its legal obligation and a TSJ Electoral Chamber ruling issued on August 22 (which ratified Maduro’s victory) by publishing the results. Instead, the TSJ declared the appeal inadmissible and fined Díaz, suspended her from professional duties and threatened her with possible arrest.

The recourse was filed on behalf of the Frente Popular Democrático (Popular Democratic Front, FDP), which includes left-wing parties and organisations such as the Bloque Histórico Popular (Popular Historic Bloc), the Partido Comunista de Venezuela (Communist Party of Venezuela), La Otra Campaña (The Other Campaign), Voces Antiimperialistas (Anti-imperialist Voices), Movimiento Popular Alternativo (Popular Alternative Movement), En Común (In Common), and the Frente Nacional de Lucha de la Clase Trabajadora (National Front for Working Class Struggle), as well as moderate opposition parties such as Centrados en la Gente (Focused on the People), among others.

Speaking about her case with Federico Fuentes for LINKS International Journal of Socialist Renewal, Díaz explained: “This is the first time in Venezuela’s history that a lawyer has been suspended from practising their profession, with no regard for the presumption of innocence, no prior trial and no right to a defence.” Despite this, Díaz continues to demand that the results be published because “it is our right” and the way to defend “the Venezuelan electoral system, which had been transparent and clean, but is now tainted”.

Díaz also spoke about the situation facing what she terms “prisoners for protesting or demanding political or labour rights”, highlighting the fact that while close to 2000 such prisoners continue to be denied their basic rights (a few days after this interview was completed, 225 of these prisoners were released on November 17), there are right-wing parliamentarians “sitting in the National Assembly who have called for an invasion, for sanctions and for Maduro to be killed” but have never faced justice.

All this leaves leftists such as Díaz in the position of “demanding justice while caught between two warring parties, and asking both sides to respect the rule of law and the Constitution.” But the risk of “a head-on collision” between the government and right-wing opposition is only increasing ahead of inauguration day, January 10, something she believes “could end very badly.” Faced with this, Díaz says there is no alternative but to “continue fighting and seeking spaces to advance our struggle” while insisting on “defending transparency, popular sovereignty and the Constitution.”

Below is the full interview.

Could you explain what has happened with your case?

The first thing we tried was filing a Request for a Constitutional Review of the TSJ Electoral Chamber’s Ruling N° 031 on the grounds that it was unconstitutional [because only the CNE, not the TSJ, has the power to act as an election arbiter]. On October 11, the Constitutional Chamber responded to us with Ruling N° 211 that declared the Electoral Chamber’s ruling as valid and res judicata [a final judgement no longer subject to appeal].

So, we tried another avenue. Understanding that even if we disagree with the Electoral Chamber's ruling we needed to abide by it, we lodged a legal recourse on the grounds that the CNE had failed to publish disaggregated results. According to the rulings from the TSJ’s Electoral and Constitutional Chambers, the Organic Law on Electoral Processes and jurisprudence set by the Constitutional Chamber, the CNE is duty bound to present a detailed tabulated list of the voting tally sheets and total votes, as the basis of proof for declaring a winner. Publishing disaggregated results allows anyone to access them and, if they choose, to challenge them.

What did the Constitutional Chamber do? It declared itself competent to hear our legal recourse, but declared it inadmissible without even reviewing its merits. On top of that, it accused us of “recklessness”, fined me and ordered the Bar Association to open a disciplinary investigation against me. I was also suspended from practising my profession, which is an unprecedented move never before seen in the country. I believe this is the first time in Venezuela’s history that a lawyer has been suspended from practising their profession with no regard for the presumption of innocence, no prior trial and no right to a defence. This is very serious. Professionals should be held responsible for any malpractice, but to determine whether this has occurred one has to be afforded due process and the right to a defence, which has not happened.

I cannot defend myself because we have not even been handed the full sentence, only the operative part. I have not been able to pay the fine because we do not have a certified copy of the sentence or an official letter stating that we must pay the fine, where we must pay it, and into what account of the National Treasury it must be paid. In other words, I am in a state of complete defencelessness and uncertainty.

On which legal norm or statute did the TSJ base its decision to sanction you?

They claim that the charge of “recklessness” is based on a TSJ law, even though it does not really fit the bill. That is why we have asked for a clarification. The article according to which they apply the sanction does not include the possibility of applying a fine. Moreover, if a fine applied, it should actually be 900 bolivars, yet the fine they issued me was for 100 euros, which at the current exchange rate is more than 5000 bolivars.

On top of this, they have indicated — with what intention, we do not know — that they could potentially arrest me in accordance with the 1988 Law of Appeals. This law directly contradicts rights enshrined in the Constitution [approved by the people in a referendum in 1999] because no one can be placed under arrest — house or otherwise — if it is not proven that they have committed an infringement or crime, and where there must be due process, including a prior trial, the right of defence and the guaranteed principle of a presumption of innocence.

So, of course, there is a lot of fear and uncertainty within the Gremio de Abogados de Venezuela (Venezuelan Lawyers’ Guild). In fact, none of the Bar Associations or Law Schools have spoken out about this. I have had to confront this alone, although supported by comrades in the FDP, groups of lawyers who have spoken out, and ordinary citizens. I have to thank the Venezuelan people because it was citizens who collectively raised the money, which I did not have, to pay the fine. But, so be it, I believe we have to continue fighting and seeking spaces to advance our struggle.

Why do you keep insisting the election results must be published?

Because it is a very serious matter when, in the face of reasonable doubt, you insist on proclaiming a winner. Reasonable doubt damages the legitimacy of any incoming government.

Moreover, the CNE said there was a hacking [of the electronic voting system] and Venezuelans have the right to know to what extent this hacking could have affected the results. The only way to find that out is by counting the paper ballots in the ballot boxes, as occurred on other occasions. In Venezuela, even if the entire electronic system breaks down, every electronic vote has a physical back-up. That physical back-up is in the ballot boxes that the CNE guards and in Envelope Number 1 [which contains all the tally sheets]. The evidence contained in these could allow one — if the CNE authorises it as they did in 2013 — to audit 100% of the ballot boxes.

Furthermore, if you publish the results, whoever believes there was a different outcome [based on tally sheets that party scrutineers are given at each voting centre] can challenge it. But the government has instead closed the door on this possibility by taking the results to the TSJ, where there was no way to control the verification process as interested third parties were not allowed to audit it.

We insist on publishing the results because it is the constitutional path, because it is the political path, because it is our right and because we defend the Venezuelan electoral system, which until now was transparent and clean, but has now been tainted by such actions. We must insist on doing politics and defending transparency, popular sovereignty and the Constitution.

What legal options are left for requesting that the CNE fulfil its legal duty?

Prior to this ruling — which seems to be the final nail in the coffin for pursuing any institutional avenue — the FDP was studying the possibility of attempting a habeas data: that is, a candidate requesting the electoral data from the CNE. We were also studying the possibility of requesting a preliminary hearing against the CNE’s rectors for not having fulfilled their legal obligation. All of this now remains under consideration because we are unclear about the result of the clarification we requested regarding the ruling that imposed sanctions and punishments on me.

There is uncertainty, including legal uncertainty, as to how far we will be able to go in demanding our rights, and not just our electoral rights. What makes this ruling so serious is that it not only prohibits me from being able to practise, it also means any lawyer who lodges an appeal or recourse to demand the government comply with a constitutional right — for example, the right to work or not be subjected to arbitrary arrest — could also be punished. This is a very serious precedent not only because it imposes a punishment without any due process or right to a defence, but because it serves as a warning to the Lawyers’ Guild. That is the most dangerous aspect of it all — it is a warning to anyone thinking about defending the rights of any citizen.

Government spokespersons have again publicly defended the detention of some 2000 people they called “terrorists” for protesting after the elections. You signed an open letter to President Maduro denouncing that these political prisoners have been denied their basic rights. Could you tell us why?

Well, in principle, because we should support any steps to free Venezuelans who have not committed crimes, and whose right to a defence and due process have been violated through arbitrary detentions. Furthermore, out of humanity and empathy, we should accompany the mothers and families of these prisoners.

But I want to make it clear that I am very wary of the category of political prisoner. I prefer to talk about prisoners for protesting, or prisoners for demanding political or labour rights, which is different. The category of political prisoner is a category that is used more generally, but we are defending all those imprisoned for protesting to demand political or labour rights. It is rarely discussed in Venezuela that there are 191 trade union leaders and workers in prison for demanding their labour rights. This must also be denounced and these prisoners should be included in any request to the government to consider extraordinary measures for their freedom.

We are fighting to support their families and ensure that justice is done in cases where people have been detained unfairly. This means ensuring their right to a defence, that they are afforded effective judicial protection, that their human rights are respected and, of course, that the crime they are charged with corresponds with the unlawful act they are alleged to have committed, because innocence must always be presumed until proven otherwise. In Venezuela, the presumption of innocence is a transversal principle across all proceedings. That fundamental human right must be respected.

But it is the case that extreme right-wing sectors have used violence as part of their destabilisation campaigns...

We know that. There are people who, for example in 2014 and 2017, even burned people alive just because they looked like Chavistas [government supporters]. I have not forgotten that. And I am not requesting amnesty or freedom for those who have committed crimes involving human rights violations or corruption. Those who have committed a serious crime, such as killing someone or causing damage to public property, must be punished. But those who have committed no crime, or a less serious crime, those who only went out to protest without causing any damage or harming anyone, cannot be treated the same.

We are not asking for impunity, we are asking for justice, which is different. We are asking that in those cases where no serious crimes have been committed, that those cases be reviewed and the prisoner be given an amnesty or pardon and released. There are children between the ages of 14 and 17, minors, and people with different disabilities, currently in prison. That is our concern.

Now, whoever committed a crime has to face their punishment. Of course, they also have to be guaranteed their rights: you cannot deny them a lawyer of their choosing or access to justice and due process. We are demanding this to ensure that no such cases are rendered null and void [as a result of these rights not being respected].

Given everything we have talked about, what is the situation today in terms of the rule of law in Venezuela?

It has been very badly damaged. The principles and guarantees established in the Constitution are not being respected. The rule of law is in frank deterioration. That is very dangerous not only for the rule of law but for democracy, because if there is no justice and no rule of law, there is no democracy. Today I would say that democracy in Venezuela has been mortally wounded. What is happening is very dangerous. Instead of contributing to a peaceful resolution, a dangerous decision has been taken to close off any institutional avenue for resolving the conflict and crisis in Venezuela.

Many left-wing activists who have stood in solidarity with the Bolivarian Revolution are concerned that talking about the situation of these prisoners or questioning the elections could fuel the arguments of US imperialism and the Venezuelan right-wing in favour of sanctions and other violent actions against the Venezuelan people. How do you respond to these concerns?

I completely dissociate myself from those kinds of arguments. We are not defending violence. We are demanding our constitutional right to request that a state institution publish election results because there are reasonable doubts over the outcome. And we cannot turn a blind eye to the human rights violations that have occurred and are occurring because, far from contributing to a peaceful resolution, that would only further deepen the political crisis in the country.

I will never agree with sanctions, because it is always the people who bear the cost. Moreover, sanctions have contributed to internal corruption, because they have been used as a justification to evade controls and the law on the argument that because of persecution, they must use, let’s call it economic subterfuge, to obtain resources. Sanctions have also served as an excuse to open the door to foreign investment and do away with labour rights.

What we are defending is the rule of law and the political model enshrined in the Constitution. We are not defending criminals. Anyone who has committed a crime, even a political one, cannot have impunity — especially those who have called for sanctions, an invasion, or the president’s assassination. We even have deputies sitting in the National Assembly who have called for an invasion, for sanctions and for Maduro to be killed. This is incomprehensible and only undermines the credibility of state institutions and the rule of law.

So, we are in a difficult position because we are demanding justice while caught between two warring parties, and asking both sides to respect the rule of law and the Constitution. But it seems both sectors are intent on continuing head-on towards a collision in the run-up to January 10 [when the new president is set to be inaugurated], which could end very badly. That is precisely what we want to avoid.