Article 16 (Mousqueton)

Preamble: When I first asked the editor of this blog to allow me to comment on the constitutional modifications of articles 11, 16 and 18, I was totally aware, from the first reading, of the dangers that the modifications to article 11 posed to the Venezuelan democracy. At that time, I also thought that commenting article 16 was a waste of time because the text of this modification is the closest I have ever seen a constitutional text come to the legendary dyslectic speech of that beloved character called “Cantinflas” brilliantly portrayed by the Mexican actor Mario Moreno throughout his life. I decided to write comments on all three articles though because they are part of Title II of the Bolivarian Constitution of 1999 that deals with the territory and the political division of that territory. Far was I then from realizing that, as much as the implications of the modified text to article 11 where frightening, the implications of the modifications to the text of article 16 are by far, and I mean far, worse than those of article 11. Further, I was wrong and presumptuous by dismissing and labeling the text of the modifications to article 16 as “Cantinflesco”.

Modifications: Both the text of the original article 16 and the text of the modifications being proposed are long and they are better explained with the help of graphic outlines. I am therefore not going to quote these texts and instead I am herein including a link you can follow should you be interested in reading them ( Original Text / Modified Text ).

The political division of Federal Republics is a logical structure that divides the country in geographical areas for administration, political and citizen representation purposes. It basically resembles a pyramid with different levels of organization and citizen representation.

The Bolivarian Constitution of 1999 divides Venezuela in three basic political and representation levels of government: 1) The Federal (National) level, 2) The State level and 3) the Municipal Level. It also includes provisions for the incorporation of two optional additional levels: 1) Metropolitan Districts - Articles 170 and 171 - and 2) Parishes - Article 173.

Figure # 1 below provides a graphic representation of the political division of the Venezuelan Republic as per the Bolivarian Constitution of 1999.

Figure # 1

The logic behind the option of creating Metropolitan Districts is that, in time, independent Municipalities may develop up to a point where a group of them could become a major metropolitan area. At that time these municipalities might want to incorporate as a “Metropolitan District” that encompasses the territory of all them. This way, they would be able to streamline rules and regulations as well as the political and representation relationship between Municipalities throughout the metropolitan area.

Following the same logic, Municipalities with large rural territories that have scattered communities might want to consider creating smaller entities of political and citizen representation. Hence, the creation of Parishes is a constitutional option that Municipalities can use to decentralize government at the municipal level in order to better serve the population in those communities.

In every case, all the political divisions or levels must comply with the constitutional mandate of allowing a republican representation of the citizens at each level. This is, the branches of power (Executive and Legislative) must be the same in every division or level and the representatives of the people (authorities) must be elected in general elections.

The current political division of the Venezuelan territory complies with these conditions as mandated in the “Fundamental Principles” of the Bolivarian Constitution of 1999 outlined in Title I, Articles 1 though 9, which are mandatory and “non amendable and/or revisable” (articles 340 and 342), and more specifically with the mandate on articles 4 and 6 that read:

Article 4: The Bolivarian Republic of Venezuela is a decentralized Federal State on the terms set forth in this Constitution, governed by the principles of territorial integrity, cooperation, solidarity, attendance and shared responsibility.

Article 6: The government of the Bolivarian Republic of Venezuela and of the political organs that comprise the same, is and shall always be democratic, participatory, elective, decentralized, alternative, responsible and pluralist, with revocable mandates.

It should be noted that the political division and the mandate to organize the country under a federal republican government constitutes the backbone of the Bolivarian Constitution of 1999. So much so, that out of the total 350 articles included in the constitution, 153 articles, that is 43% of all articles, are dedicated to explaining and regulating the term, scope, attributions, responsibilities and the rights of the citizens in the different levels and/or political divisions of this government structure.

The modifications being proposed to article 16 though, introduces a completely different political division (structure) of the Venezuelan Republic which, at first sight, seems to have absolutely no organizational, administrative, political and certainly, no constitutional logic. Further more, it introduces changes that are not explained and/or regulated anywhere in the Bolivarian Constitution of 1999 and for that matter, not even vaguely referenced anywhere in the whole text of the constitution.

To illustrate the major differences being introduced in the modified text of article 16 we are including a table (Figure # 2) that provides a visual reference as to the political division of the Venezuelan Republic in three different documents. These are; 1) The Venezuelan Constitution of 1961, 2) The Bolivarian Constitution of 1999 and 3) The proposed text for article 16. The different political divisions and/or levels of organization are being outlined in the same order as they appear in the text of each document.

Figure # 2 (click to enlarge)

Since the proposed political division in the modified text of article 16 is so confusing and given the fact that there is no precedence for this type of political division either in the Constitution of 1961 or the Bolivarian Constitution of 1999 it seemed logical to research the constitutional text of other “federal republican constitutions” to try and find similar political divisions. None of the constitutions that were researched though (Argentina, Brazil, Mexico, and the United States) shed any light as to where this political division concept could have come from. Further, though Cuba is not a federal republic, we also could not find in the Cuban Constitution anything that vaguely resembles the above mentioned political division.

Frustrated with the inability to find any logic to the proposed political division we were about to focus only on the confusing and in some instances somewhat pompous language of the proposed text when suddenly it strike us.

The reason why we could not find any logic and/or sense to the proposed political division was because the text was not describing one political division but indeed two different, separate and overlapping political divisions written into the same text.

Just like the notes of two different songs played together do not make sense unless played separately, the modified text of article 16 describes two separate political divisions that only make sense when outlined separately.

In the following table (Figure # 3) we are outlining the two now perfectly logical and overlapping political divisions being introduced by the modified text of article 16.

Figure # 3

As amazing as it may be, the modified text of article 16 introduces two separate, opposite, parallel, overlapping and most probably competing government structures to govern the same country.

It also re-arranges the territory introducing political divisions that are made up from parts or all the current territories assigned by the constitution to one or more States and Municipalities. These territorial assignments are very broadly described in the proposed amended text to article 16 and certainly they are not regulated in any way, shape or form.

- Federal Provinces: Which are basically a political equivalent to the States, will be formed by …“aggregating either States or Municipalities”…The concept of Provinces is not alien to Venezuelan history since, originally, the political division of Venezuela included six provinces: Venezuela or Caracas, Maracaibo, Cumana, Guayana, Margarita and Trinidad.

- Functional Districts: Which are basically political equivalents to the Metropolitan Districts will be formed …“by one or more Municipalities or Territorial Lots on them, without regard to the State they belong to.”…

- Insular Districts: The original text of article 16 included Federal Dependencies. These have been dropped and replaced by Oceanic Regions. Federal Dependencies included all those islands that were not part of a State. Oceanic Regions do not make that distinction so territories such as Margarita could become Insular Districts subject to the executive branch of power.

- Federal Cities: Will allow the government to take direct control over any major metropolitan city, regardless of which State they are in and/or their Municipalities (…”The President of the Republic, in the Council of Ministers, after an agreement approved by a simple majority of Representatives of the National Assembly, will be able to create by decree, Federal Provinces, Federal Cities and Functional Districts”…), (…”In the Federal Territory, the Federal Municipality and the Federal City, the national Power will designate the respective authorities”…).

- Federal Municipalities: Municipalities in Federal Territories would be under government control and their authorities will be appointed by the national government.

- Cities / Communal Cities: This is the new …"primary political unit in the national territory organization"… and hence the political equivalent of the “Municipalities”. “Cities” and “Communal Cities” are the same thing since all cities will become “Communal Cities” when …"organized Communities, Communes and self communal governments are established in the totality of its perimeter."… without any regard for the Municipalities.

- Communes: Are the political equivalent of the Parishes except that they are mandatory; Parishes were optional. Also, Communes are political entities with …"forms of self government and any other expression of direct Democracy."…

- Communities: This is a new micro political division that is being introduced by article 16 which can only be explained as an obsession to micro manage the lives of the people. After communities the only thing left are “homes”.

From a constitutional standpoint, the two overlapping political divisions being introduced by the modified text of article 16 are dramatically different.

As per the constitutional mandate in the “Fundamental Principles” of the Bolivarian Constitution of 1999 (articles 4 & 6), Political Division “A” is Federal, Elective and Decentralized. “Political Division “B” though is quite the opposite; it is not Federal because none of the divisions created comply with the autonomous nature of a Federal Republic; it is non-elective because most of the authorities are appointed by the national government and, it is not decentralized because they are all subject to the national government.

Finally, the undetermined and absurd nature of this dual political division is pretty much covered up with the all inclusive, all uncertain and all powerful political alibi measure of choice: …"The political-territorial organization of the Republic will be legislated by an Organic Law."

Comment 1: Let me start by commenting what, without doubt, is the most important conclusion you arrive at after reading the above factual analysis.

The modified text of article 16 being introduced by the government is absolutely UNCONSTITUTIONAL for the following reasons:

a. It violates Title I, article # 4 of the “Fundamental Principles” in the Bolivarian Constitution of 1999 that mandates: …The Bolivarian Republic of Venezuela is a …federal State”…
The new political division introduces new political divisions that are not subject to the States and hence they are not federal. Further, it introduces political divisions that include territories from more than one State and authorities that are not accountable to either of such destroying this way the integrity of the federal system.

b. It violates Title I, article # 4 and 6 of the “Fundamental Principles” in the Bolivarian Constitution of 1999 that mandates: …”The Bolivarian Republic of Venezuela is a decentralized… State”...” The government of the Bolivarian Republic of Venezuela and of the political organs comprising the same, is and shall always be… decentralized”…
The new political division introduces authorities that are appointed and/or removed by the national government and hence dependant from such. This constitutes a centralized system of government and further, allows the executive branch to exercise authority at the State and Municipal level which is as power that neither the President nor the National Assembly has under the constitution.

c. It violates Title I, article # 6 of the “Fundamental Principles” in the Bolivarian Constitution of 1999 that mandates: …”The government of the Bolivarian Republic of Venezuela and of the political organs comprising the same, is and shall always be… elective”..
The new political division introduces authorities that are appointed and not elected.

d. It violates Title IX, Chapter II, article # 342 of the Bolivarian Constitution of 1999 that mandates: …” The purpose of the constitutional reform is to effect a partial revision of this Constitution and replacement of one or more of the provisions hereof, without modifying the fundamental principles and structure of the text of the Constitution.”…
The new political division introduces a significant modification to the fundamental principles and particularly to the structure of the text of the Constitution. It curtails the power and territory of the States and Municipalities. It introduces political divisions and entities that are not legislated under the Constitution. It creates a new primary political unit that modifies the responsibilities and the political relationship of the Municipalities with other political entities. It modifies the representation of the people at the Municipal and State level. It subjects people to different authorities without the legislation to guarantee their rights. In sum; it introduces a major modification to the structure of the text of the Constitution.

e. It violates Title IV, Chapter III, article # 164 of the Bolivarian Constitution of 1999 that mandates: …”Is of the States exclusive competence: … (2) Organization of their Municipalities and other local organs and the territorial and political divisions between them”…

Comment 2: From a political standpoint, the introduction of two overlapping political divisions is a clear attempt to destroy the power base of the States and their municipalities. The centralized political structure under the national government control will have more economic resources and no constitutional restrictions. Eventually, it will be perceived as more efficient than the federal structure and therefore such will loose political power and representation.

Comment 3: The modifications introduced to article # 16 are a clear attempt by the government to introduce a centralize, non elective and dependent political structure that will change the nature of the Venezuelan government which by constitutional mandate is republican, federal and constitutional. The problem is that this can not be done through constitutional amendments and/or reforms because the constitution does not allow it. The only way to make those changes is to elect a National Constituent Assembly to write a new Constitution.

Mousqueton
venezuela.constitution.trap@gmail.com

Spanish language version of this post can be found at the following site: “No a la reforma constitucional de Chávez”


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