2023-07-18 07:34:11
By: Jose Francisco Conte
The Dictionary of the Royal Academy of the Spanish Language teaches us that disqualification is the action and effect of disabling. Penalty or punishment that deprives of some rights. And in Law it is the penalty consisting of the deprivation of honors, employment and public positions, the exercise of a profession, industry or commerce, or the rights of parental authority, guardianship, guardianship or shelter, the right of passive suffrage or any another right.
For its part, the Encyclopedic Dictionary of Usual Law, by the author Guillermo Cabanellas, frequently used in the legal area, establishes that disqualification is the action or effect of disabling or incapacitating. Declaration that someone cannot, due to natural, moral or other causes, hold a position, carry out an act or proceed in any sphere of legal life. Afflictive penalty that makes it impossible for the performance of certain positions or for the exercise of certain rights.
Regarding Disqualification for Public Office, the same author tells us that it constitutes the deprivation of the exercise of the one he possesses and the prohibition to obtain it or perform it during the time of the sentence; either the sanction for bad exercise of the same or for having incurred in another fault that entails this expulsion from the official life of a country.
Therefore, to disqualify is to declare incapable to obtain a position, job, office or advantage; prohibit the exercise of certain rights or powers; preclude; veto; impose the penalty of disqualification.
Our Constitution consecrates in its article 62 the right to political participation by establishing: “All citizens have the right to participate freely in public affairs, directly or through their elected representatives.
The participation of the people in the formation, execution and control of public management is the necessary means to achieve the leading role that guarantees their complete development, both individually and collectively. It is the obligation of the State and the duty of society to facilitate the generation of the most favorable conditions for its practice.
For its part, article 42 of the Magna Carta establishes the limitation to the exercise of political rights, when it establishes: “Whoever loses or renounces nationality loses citizenship. The exercise of citizenship or any of the political rights can only be suspended by final judicial sentence in the cases determined by law.
This is consistent with the provisions of article 65 of the same Constitution, when it enshrines: “Those who have been convicted or sentenced for crimes committed during the exercise of their functions and others that affect public property may not run for any popularly elected position. , within the same time established by law, from the completion of the sentence and in accordance with the seriousness of the crime.”
From the last two transcribed articles, it is clear that the exercise of political rights can only be suspended or limited through a final judicial sentence of a criminal nature; that is, from a pronouncement emanating from a court or judicial body, after a criminal process where the procedural guarantees established in article 49 of the Constitution of the Bolivarian Republic of Venezuela are respected, regarding due process and effective judicial protection enshrined in article 26 of the same Constitutional instrument, and never emanated from an entity of an administrative nature, such as the Comptroller General of the Republic, which has no competence to decree or declare these disqualifications for the exercise of political rights.
In our legislation, the penalty of political disqualification is enshrined in the Criminal Code, as an accessory penalty to the main penalty of imprisonment or imprisonment, during the time of the sentence, as established in articles 11, 13 and 16 of this legal instrument; that is to say, that the accessory penalty of political disqualification can only be the consequence of a criminal judicial sentence of imprisonment or imprisonment, it can never be established as a main penalty, as the aforementioned administrative body of the Comptroller General of the Republic has tried to provide. , all in accordance with the provisions of article 24 of said Code, which provides: “Political disqualification may not be imposed as the main penalty but as an accessory to prison or imprisonment and produces as an effect the deprivation of public positions or jobs or politicians that the prisoner has and the inability, during the sentence, to obtain others and to enjoy the active or passive right of suffrage.
This administrative body, such as the Office of the Comptroller General of the Republic, absolutely lacks the competence, attributions or faculties to decree sanctions of political disqualification, since it is enough to simply review the constitutional provisions related to its functions, enshrined in article 289 of the Constitutional Text, to deduce that he is incompetent to decree sanctions of political disqualification; As well as when reviewing the provisions of the Organic Law of the Comptroller General of the Republic, we did not find any legal provision that authorizes said body for this purpose.
Therefore, in accordance with the provisions of article 138 of the Constitution of the Bolivarian Republic of Venezuela, which establishes: “All usurped authority is ineffective and its acts are null”, the disqualifications issued by the Comptroller General of the Republics are totally null and ineffective, which must be declared by any body of the Public Power where they intend to enforce such political disqualifications, such as, for example, the National Electoral Council. In addition, it is necessary to add the content of article 139 of the same Constitutional Text that provides: “The exercise of Public Power entails individual responsibility for abuse or misuse of power or for violation of this Constitution or the law.”
Similarly, the so-called Pact of San José or American Convention on Human Rights, signed and ratified by the Republic, consecrates political rights in its article 23, by providing: “All citizens must enjoy the following rights and opportunities:
To participate in the conduct of public affairs, directly or through freely chosen representatives. To vote and be elected in authentic periodic elections, carried out by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters, and To have access, under general conditions of equality, to public functions in their country.
And in turn, this legal device of an international nature provides in its number 2: “The law can regulate the exercise of rights and opportunities exclusively for reasons of age, nationality, residence, language, education, civil or mental capacity, or conviction , by a competent judge, in criminal proceedings.”
From all of the above, we have to conclude, with absolute adherence to the constitutional and legal framework, that the political disqualifications decreed by the incompetent body of the Comptroller General of the Republic, are null and ineffective for violating express constitutional and legal provisions, and thus They must be declared by any body of the Public Power, where they intend to assert themselves, as they constitute acts emanating from a usurped and ineffective authority, since they must be the consequence of a criminal conviction emanating from a Court of the Republic.
Jose Francisco Conte Capozzoly*
Lawyer and University Professor
Vice President of the Trujillo Regional Elementary Board
1689676042
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