Article 87 (AIO)

Introductory comment.

First of all, let me say that I think Bruni’s argument about the questionable constitutionality of this process is worth reading – if you haven’t, do it. Being a non-Venezuelan, I don’t think I’m really qualified to weigh in on the validity of that argument, but I don’t want the fact that I’m discussing an article to make it seem that I consider it a non-issue. (Speaking of that, check out this picture, with its caption about constitutional reform. Ironic, no?)

Second, I want to comment in general about constitutions. Being the most important aspect of a true democracy – since no one should be above the law, and it is the ultimate definition of that law, it therefore is more important than any person and their opinions – I believe it should contain only the most important, fundamental priorities. In other words, a constitution should always be short, because there are only so many things that deserve consideration as the highest priorities.

This is partly true because a constitution should only contain things that the government can reasonably guarantee, the things which should be considered basic, fundamental rights. The U.S. Constitution, for example (I’m not holding it up as a model for the whole world, but simply as a good example – if it were lousy, it wouldn’t have lasted 224 years and counting – and the one I know the best), promises “life, liberty, and the pursuit of happiness,” and pretty much everything in it fits into those categories. It doesn’t reach beyond the basics.

Any overly long constitution (350 articles, perhaps?) will necessarily get into one or two areas beyond the fundamental rights: things which should properly be enacted as law, not the constitution; and things that can only be described as a wish list. A good standard for the first might be whether or not it can sustain at least 2/3 support of the people indefinitely (if it can, maybe it should be constitution material; if not, take it to the legislature). For the second, it comes down to whether or not the government can manage to provide it or not. If it’s beyond its power, but makes you think “Wouldn’t it be nice if…?” then leave it out. (And too much of that is one of the reasons Latin Americans have spent so much time writing new Constitutions – because they didn’t like the “wish list” of the last one.)

That said, on to Article 87.

The old version (translation from www.constitucion.ve – and it’s quite easy to see what these pictures have to do with the Constitution. Not!):

All persons have the right and duty to work. The State guarantees the adoption of the necessary measures so that every person shall be able to obtain productive work providing him or her with a dignified and decorous living and guarantee him or her the full exercise of this right. It is an objective of the State to promote employment. Measures tending to guarantee the exercise of the labor rights of self-employed persons shall be adopted by law. Freedom to work shall be subject only to such restrictions as may be established by law.

Every employer shall guarantee employees adequate safety, hygienic and environmental conditions on the job. The State shall adopt measures and create institutions such as to make it possible to control and promote these conditions.

The new version:

All persons of working age have the right and duty to work. The State will develop policies that generate productive work, and will adopt social measures necessary for each person to achieve an existence which is dignified, decorous and beneficial for themselves and for society.

The State will guarantee that in all labor centers safety, hygienic and environmental, and social relations conditions are fulfilled in accordance with human dignity, and will create institutions such as to make it possible to control and promote these conditions.

In the application of these principles of co-responsibility and solidarity, the employer will adopt all necessary measures for the fulfillment of these conditions.

Work will be subject to the regime established in this Constitution and the laws of the Republic.

For the purpose of guaranteeing the exercising of labor rights of independent workers, such as taxi drivers, truckers, retailers, craftsmen, professionals and who are self-employed in whatever productive activity to support themselves and their family, the Law will create and develop everything with regard to a social stability Fund for self-employed workers, so that with the contribution of the State and the worker, the worker can enjoy fundamental labor rights such as retirement, pensions, vacations, rest, prenatal and postnatal care, and other rights established by law.

This article comes from the section called “De los Derechos Humanos y Garantías, y de los Deberes” – “About Human Rights and Guarantees, and about Duties.” Anything related to employment, with the exception of precluding slavery, seems to me to fall well short of that category. If one were to list things that should be guaranteed to all, a job would not be near the top of the list. Same thing if one were to list things a government could guarantee. Frankly, the only appropriate change for this article would have been to delete it altogether. Everything in the old version fell into those two categories: things that should be a in a law (why does any legislature need a Constitution to tell them what laws to pass?), or “wish list.”

On to the changes: the first big one is that the State will no longer guarantee the adoption of measures to help provide work, but will itself develop the policies for the same. In other words, more State intervention, which will do the opposite of facilitating job creation. Always has, always will. A certain degree of State intervention is very important, but I think Venezuela passed that point long ago, and just kept going. You see the same theme in the change about safety conditions, which were to be provided by the employer, and now are guaranteed by the State – with new institutions to “control” them. This implies a dependence on the State – is that the intent? Yet again when the State guarantees conditions about “social relations,” whatever that means. The employer’s responsibility will now be to fulfill “co-responsibility and solidarity.”

Another notable change is that the end result of facilitating work that is beneficial for society. And just who makes that determination? If it’s anyone but society itself, it’s going to be mistaken at times. A promise of “human dignity” is also added, also without definition.

“Work will be subject to the regime established in this Constitution and the laws of the Republic.” Can someone explain to me why this was necessary – if it weren’t included, then work would be supra-constitutional?

I'm very amused by the addition of several types of independent workers. This has got to be the first proposed Constitution in the world to ever mention taxi drivers! The proposed stability fund is potentially a good idea, but far too vague to even guess. Plus the idea is utterly worthless without a law, so it’s pointless to include.

There are some other little details, but the sum of the changes promise nothing concrete, except for additional State intervention. That intervention is vaguely defined to boot, which means that it could be quite excessive. Unfortunately, there is nothing here that gives any reason to think that anything employment-related will improve.

Finally, there is one deletion which is very intriguing: the sentence “It is an objective of the State to promote employment” has been removed! Why? Because “social relations,” “control” of employers, and “co-responsibility and solidarity” are more important? Because promoting employment isn’t “beneficial…for society”?

I suspect another reason: because this is the one thing in the original article that Chavez knows he can’t fulfill. He can guarantee more control, greater intervention, lots of activities with “social” purposes (but not necessarily results). But he can’t make it easier to create employment.

This isn’t just my opinion – the World Bank released its annual “Doing Business” report just this week. (Perfect timing!) Venezuela is 172 out of the 178 countries listed, ahead of economic luminaries Chad, Burundi, Congo, Guinea-Bissau, the Central African Republic, and the Dem. Republic of Congo. The nearest non-African country is Laos, at 164, and even Haiti – the closest in the Western Hemisphere – is out of reach at 148. Not only that, but Venezuela is 20 spots below Zimbabwe!

And when it comes to the criterion of “Employing Workers,” Venezuela is even worse off – they are tied for dead last in the entire world! So there you have it – Chavez has proposed no longer having to promote employment, which the World Bank says no one in the world does worse already. And nothing in the proposed Constitutional change gives reason to think it will be the least bit better.

AIO
aninterestedobserver at yahoo dot com

Published originally here.

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Article 115 (Pedro Bernardez)

Analysis of Article 115 of the 1999 Constitution and Its proposed Reform
by Pedro Bernardez

Article 115 as it stands:

“The right to own property is guaranteed. Every person has a right to the use, enjoyment, and disposition of his/her goods. Property will be subject to the contributions, restrictions and obligations that the law establishes in the spirit of public use or general interest. It is only in the spirit of public use or general interest, through final judgment and quick payment of fair compensation, that any kinds of goods may be expropriated”

Article 115’s proposed reform:

“The different forms of property are recognized and guaranteed. Public property [“la propiedad pública”] is that which belongs to State entities; social property [“la propiedad social”] is that which belongs to the people in its entirety and to the future generations, and may be of two types: indirect social property, when it is exercised by the State in name of the community, and direct social property, when the State assigns it, under different forms and in outlined territories, to one or several communities, to one or several communes [“comunas”], constituting thusly communal property, or to one or several cities, constituting thusly cityward property; collective property [“la propiedad colectiva”] is that which belongs to social groups or persons, for their benefit, use or common enjoyment, of either social or private origin; mixed property [“la propiedad mixta”] is that constituted by the public sector, the social sector, the collective sector and the private sector, in differing combinations, for the utilization of resources or carrying out activities, always subject to the absolute respect of the Nation’s economic and social sovereignty; and private property [“la propiedad privada”] is that which belongs to natural or juristic persons and is recognized over user and consumer goods, and legitimately acquired means of production.

All property, [the comma there is part of the article, and not my mistake] will be subject to the contributions, burdens, restrictions and obligations that the law establishes in the spirit of public use or general interest. In the name of public use or general interest, through final judgment and quick payment of fair compensation, the expropriation of any kind of good may be declared, without restricting the right of State officials, [the comma is also part of the article] of previously occupying, [as is this comma] during the judicial process, the goods being expropriated, within the parameters established by law.”


Essential changes

Private property: although, in a technical sense, the articles barely contradict each other in regards to private property, what does happen is that the definition of private property is specifically narrowed down to “user and consumer goods and legitimately acquired means of production” and subject to greater restrictions than in the current article.

Under the new article, persons do not explicitly have a right to the disposition of their goods, which means that for example rental of said goods could not be exploited for economic gain.

This means that all economic sectors that rely on rent such as hotels, rented apartments, rental stores, and businesses that rent out industrial equipment would cease to exist as private, either becoming collective or disappearing.

Also, since private property is restricted to “user and consumer goods and legitimately acquired means of production” it includes neither land (unless it were a “legally acquired means of production”) nor intellectual property, unproductive land and real estate (even the land one lives on) and personally produced works of art could never constitute one’s own private property.

In addition to these restrictions is the fact that State entities have the guaranteed right to occupy goods when and while a judicial process to expropriate them is pending.

“Legitimately acquired means of production” presents another problem: since it is the people (on whom sovereignty rests according to the Constitution), and therefore the State (in the people’s name), what define what “legitimately acquired is”, it leaves the State with the option of acquiring said means of production, possibly without compensation, by simply declaring such acquisition as “in the people’s interest. The use of legitimate as opposed to legal implies the possible use such supra or extralegal justifications for the acquisition of said means of production even if they were legally acquired.

This is in addition to any restrictions on legal acquisitions. It is also the State who defines the laws, and therefore may rule ownership of certain property illegal by simply altering existing laws to exclude such property. The State already did so when it redefined what legally acquired lands were in 2005, and took lands that were outside this definition (in this case, private lands that were not registered in 1821)

In other words, as opposed to the current article (which guarantees private ownership except in the “spirit of public use or general interest”), the new article gives the government the implicit power to instantly requisition all means of production if it wanted to by a simple change of the law or “on behalf of the people”.

Lastly, note that the new article does not explicitly establish the right for the personal and exclusive enjoyment of one’s private property; in fact, nowhere in the article are citizens given any rights over property: only the State explicitly reserves them for itself.

In conclusion, private property as understood by the new article is a much more restricted and narrow version than it is in the current one, and essentially nullifies most of it.

Other property: in addition to private property, the new article outlines several different new kinds of property: public, social, collective, and mixed.

Public property as defined by the article is conceivably that which belongs to state institutions. Since the definition is vague and succinct and not supported by a justification, it could be that anything could be potentially declared public property.

Social property, although it seems to give “the people” sovereignty over it, in reality places it in the hands of the State since it is either managed by the State in the people’s name (“indirect social property”) or assigned to the people (“direct social property”), potentially meaning that the State could reassign it at any given time.

Collective property is just that: property that belongs to a group or collective for their benefit. In reality, what is today private property could be conceivably transformed into collective property if it was de facto shared by several people: a home shared by a family or a small business for example. However, this emphasis on the collective over the individual stifles forms of individual private enterprise, such as freelance artists, taxi drivers, tutors, psychiatrists, and the like. Unless they were part of a collective, any property they might own could not be used for this end. In reality, it forces people to form enterprises collectively to survive.

In addition, since the article does not guarantee collective property and only defines it (and not even as a right), its actual existence can only be determined by subsequent laws. Analysis of other articles may also be necessary to understand further implications or restrictions.

Mixed property is any combination of the former, subject to “the Nation’s economic and social sovereignty”. The main problem is that any such property and activities carried out with it could not contradict the State’s (representing “the Nation”) economic and social decisions, previous or future. In addition, since it is the only type of property explicitly authorized for the utilization of resources, and is subject to the Nation’s social sovereignty, presumably referring to the types of social property managed or assigned by the State in the Nation’s name, it places all type of resource exploitation under the State’s control.

In conclusion, although several types of property have been defined, the article has de facto placed almost all of them under the State’s direct administration, leaving the only one which hasn’t (collective property) up for grabs (I’m not considering private property in this statement since it was treated in another section).

Property sytem: since private property is redefined severely from the current article, (in opposition to the current article which gives an explicit right to individual property ownership) and since the State de facto reserves disposition of all the newly defined property in name of the collective including any former private property that would become collective under the new article, the system of property has been essentially altered from the current constitution.

Therefore, it can be argued that it alters its fundamental structure, in opposition to article 342 of the current constitution. This article reads:

“A Constitutional Reform has as its objective a partial revision of this Constitution and the substitution of one or several of its guidelines that do not modify the structure and fundamental principles of the Constitutional text.”

Because of this, the changes go beyond the scope of a Constitutional Reform, and should therefore be subject to another process. The article would be unconstitutional if passed under a Constitutional Reform.

Article 350: the proposed article also flies in the face of this article of the current Constitution, which reads:

“The people of Venezuela, loyal to their republican tradition, their fight for independence, peace and liberty, will disavow any regime, legislation or authority that contradicts democratic values, principles and guarantees [,] or undermines human rights [it doesn’t need a comma in Spanish; I added it to dispel the confusion that might arise from the phrase “and guarantees or undermines human rights”, since it refers to the contradiction of democratic guarantees and is not a semantic confusion]”.

The regime, legislation and authority granted by this article contradict democratic values and principles for two main reasons.

First, it infringes on article 17 of the Human Rights Charter (paragraph 2: “Everyone has the right to own property alone as well as in association with others”) because it doesn’t define property as a right, and does not guarantee any property defined.

Secondly, by subordinating almost all property to the State, it reduces the freedom of both groups and individuals as the choices of said groups or individuals can be largely overruled by the State; in addition, since property, and especially private property, is restricted further than in the current article, it shows a trend of restricting freedom, which is contrary to the democracy implied in article 350 (which includes freedom as a cornerstone of the people’s tradition).

In conclusion: because of these violations, the people would have the right to disavow the government that would be put in place by the proposed article.

Final Conclusion

The proposed article severely restricts private property while de facto subordinating almost all proposed collective property to the State. In light of this contrast to the current article, which is not as restrictive, the proposed one contradicts article 342 of the current Constitution because it alters the fundamental structure of the principle of property outlined within the current one (and therefore being outside of the scope of a Constitutional Reform; another process would have to be used). In addition, because it violates democratic principles, values and guarantees in at least two areas, the regime, legislation and authority that would be put in place under the proposed article would have to be disavowed by the people as per article 350 of the current Constitution.
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Additional private comments to venezuela.constitution.trap@gmail.com, Subject: Art 115

Published originally here.

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