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Chavez Alters Venezuela's Constitutional Regime

Author: Joel D. Hirst, International Affairs Fellow in Residence, 2010-2011
December 20, 2010

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Early in the morning of December 3, 2007, a humbled Venezuelan President Hugo Chavez admitted his defeat (MSNBC) in a national election. For the first time, voters had rejected him at the polls -- saying no to his bold attempt to modify sixty-nine articles of Venezuela's 1999 constitution and usher in a "socialist state." But that contrition was short lived. Using the gradual passage of "organic laws" by his overwhelming majority in the National Assembly, Chavez has enacted almost all aspects of his proposed 2007 constitution.

In the aftermath of another electoral setback (FoxNews) this past September, and using the severe flooding affecting the nation (MSNBC) as cover, Chavez and his outgoing National Assembly have been busily pushing through an unconstitutional package of laws that completes his 2007 project.

Attack on Freedom of Speech, Association, Democratic Governance and Private Property

Several of the proposed laws being debated (and set to be approved before the January 5, 2011 swearing in of the new parliamentarians) affect the rights of individuals to receive information, organize, and participate politically. The new law in "Defense of Political Sovereignty and National Self-determination" forbids organizations and individuals that defend the political rights of Venezuelans from receiving foreign funding, having representation from non-Venezuelans, and even hosting individuals who express opinions that "offend the institutions of the state." These would include human rights organizations such as Amnesty International's Venezuelan chapter (among others). This law will be accompanied by the International Cooperation Law (included in the enabling law), which requires civil society organizations to re-register with the government, declare their plans and financing, and carry out work only in areas approved by the government and its national development plan.

The following rundown of the president's legislative initiatives gives a flavor for how he seeks to cement power:

  • Media and Telecommunications. The modification of the Media Responsibility Law and the Telecommunications Law place severe restrictions on the Internet, centralizing access under the control of a government server. They re-categorize the airwaves as a "public good" and set in place harsh penalties for arcane and obtuse violations of the law. The laws require TV stations to re-apply for their licenses and for the owners to be in the country (a clear reference to Globovision, whose owner, Dr. Guillermo Zuloaga, is in political exile in the United States).
  • Electoral Reform. The reform of the Political Party Law establishes the crime of electoral fraud. Fraud would be committed if a politician changed parties, voted against legislation that was "ideologically represented" by their "electoral offer" (on file when they registered their candidacy with the National Electoral Council), or if they make common cause with ideas or people who are not ideologically akin to their electoral offer. Sanctions are the expulsion from parliament and inability to run for public office for up to eight years. This law is meant to protect against individuals or political parties turning against Chavez, as happened with the opposition parties of PODEMOS (We Can) and PPT (Fatherland for All).
  • Economy and Governance. Chavez is pushing through a block of five laws: Popular Power, Planning and Popular Power, Communes, Social Control, and the law of Development and Support of the Communal Economy. These laws establish the commune as the lowest level of Venezuelan economy and government. They set in place the Popular Power, which is responsible to the Revolutionary leadership (Chavez) for all governing (eliminating the municipalities and regional government's constitutional mandate). To facilitate the creation of this new governance model, the Assembly is approving the Law of the System for Transferring the Responsibilities of the States and Municipalities to the Popular Power.

    To cement these new communal laws, the National Assembly is also approving the modification of the Law for the Treasury and National Fiscal Control, cementing the new Popular Power's role through the nation's financial management structure.

  • Banking. The modification of the Banking Law makes the banking sector a public utility, setting the stage for potential nationalizations, and forces the banks to donate 5 percent of their profits to a social fund or risk takeover.
  • Universities. Universities in Venezuela have been constitutionally autonomous. The modification of the University Law removes their autonomy, allows the government to influence their leadership (both elected student leaders and board of directors). It requires teaching courses on Popular Power and communes, and focuses the pedagogy around revolutionary principles.
  • Enabling Law. The National Assembly is also passing an enabling law that allows the president to rule by decree for eighteen months in nine broad areas such as social, economic, territorial, and national security. According to Chavez, he already has the first twenty laws almost ready. While he has not divulged their content, he has made hints that they will focus on the forced acquisition of real estate "to deal with the crisis caused by the rains" as well as an increase in the value-added tax.

An 'Extraordinarily Grave' Move

Following approval of the enabling law, Chavez has weighed in on the role of the recently elected opposition parliamentarians, saying: "They can have a commission, or not. They have their space, we have to let them. There will be a debate and that is interesting."

Several of the proposed laws being debated affect the rights of individuals to receive information, organize, and participate politically.

However, in reference to the actual work of legislating he stated, "they won't be able to make even one law, the pitiyanquis (a derogatory term used to refer to the opposition), let's see how they are going to make laws now."

The opposition has cried foul. Newly elected National Assembly Deputy Julio Borges said, "Have faith that the Cuban project will not prosper in Venezuela." The Organization of American States, through its Inter-American Commission on Human Rights, has called the package of laws "extraordinarily grave." Frank La Rue, the UN special rapporteur for freedom of opinion and expression, said he regretted the tenor of the bills.

For its part, the Obama administration has responded with unusually sharp language toward the Chavez regime, underscoring the gravity of the situation. State Department spokesperson Philip Crowley said Chavez seems to be finding "new and creative ways to justify autocratic powers."  He added: "What he is doing here, we believe, is subverting the will of the Venezuelan people."

Crowley said the laws would appear to be a material violation of the Inter-American Democratic Charter. This charter was adopted on September 11, 2001 by the hemisphere's thirty-four democracies. It was meant to protect OAS member countries from unconstitutional alteration of a constitutional regime. Article three outlines the essential respect for fundamental freedoms, the separation of powers, and the independence of the branches of government. Article four outlines the commitment to the freedom of press and expression. With the passage of these new laws, Venezuela would clearly be in breach of the charter.

The Organization of American States, through its Inter-American Commission on Human Rights, has called the package of laws "extraordinarily grave."

Many human rights defenders, politicians, and analysts are questioning what can be done. The charter itself has the answer. Article twenty states:

"In the event of an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, any member state or the Secretary General may request the immediate convocation of the Permanent Council to undertake a collective assessment of the situation and to take such decisions as it deems appropriate. The Permanent Council, depending on the situation, may undertake the necessary diplomatic initiatives, including good offices, to foster the restoration of democracy."

Should the laws go through as planned, the Obama administration, representing U.S. obligations as a member state of the OAS, must invoke article twenty. This would bring Chavez' unconstitutional laws into the spotlight, and would begin the much needed hemispheric discussion on the status of Venezuela's democracy. Failure to act in this way will diminish the United States as a democratic leader and place in question its commitment to defending democracy in the hemisphere and the world.

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