Article 18 (Mousqueton)

Preamble: While reading the text of the proposed amendment to article 18 I remembered a conversation once held with the elected President of a Latin American country who is now deceased. We talked about the sad role of some armed forces in Latin America and how they have become the nemesis of democracy and individual freedoms and in many cases the “jail keepers” of their people. He said that while the armed forces have a congenital tendency to misread the social and political expectations of the people and therefore, most of the time, end up in the wrong side of history, the good thing is that they are slow.

He liked to say that most people believe that bullets kill people when in fact they don’t. If I put a bunch of bullets in your hand they will not kill you. It is the combination of factors and “speed” what makes a bullet lethal.

This president was a retired General and what he basically wanted me to understand is that, at one time or another, every political force has knocked on the doors of the armed forces to buy their support. Throughout history some of those forces have succeeded, though temporarily, in getting that support but it could have been far worst if the armed forces were fast at deliberating instead of slow and had supported every political adventurer who came looking for them.

You can argue with the Generals’ reasoning and certainly with his sense of style. I, for one, never cease to be amazed by the crude use the military make of that elegant language artifice called “metaphors”.

He is definitely right in one sense though; in politics, “speed” is certainly a critical element and when combined with the wrong leaders and policies it can become, if not lethal, certainly extremely dangerous.

While the modifications to article 11 provides a way for the government to have absolute power over the people and the territory of Venezuela in case things go wrong, article 16 lays out a parallel and overlapping centralized and un-elective political structure to drive the Venezuelan Federal Government into political oblivion and replace it with a centralized national power. Accomplishing this, with or without constitution, will take time though and therefore the modifications to article 18 introduces that missing critical element, “speed”, which will most certainly make the policies in these three articles “lethal” for the Venezuelan federal democracy.

Original text: The city of Caracas is the capital of the Republic and the seat of the organs of National Power. The provisions of this article shall not prevent the exercise of National Power elsewhere in the Republic. A special law shall establish the territorial and political unit of the city of Caracas, incorporating into a two-tier system of municipal government the Municipalities of the Capital District and those of the State of Miranda. Such law shall provide for the organization, government, administration, competency as well as resources of the city, with a view to its harmonious overall development. In any case the law shall guarantee the democratic and participative character of its government.

Modified text: The city of Caracas is the capital of the Republic and the seat of the organs of National Power. The provisions of this article shall not prevent the said National Power from being exercised elsewhere in the Republic.

The Venezuelan State will develop an integral policy to articulate a national system of cities, structuring logically and reasonably the relationship between the city and its associated territories and unifying and supporting the local and regional scales in the systematic vision of the country. For that purpose, the State will confront every speculative action in regard to the economic return of the land, the economic unbalances, the asymmetries in the provision of services and infrastructure as well as the conditions of accessibility, physical and economic, of each and every one of the components of the national system of cities. Every citizen, without discrimination of gender, age, ethnicity, political and religious orientation or social condition, will enjoy and will be holders of the Right to the City, and that right should be understood as the equal benefit received by each one of the citizens as per the strategic role articulated by the city both at the regional urban context and the National System of Cities. A special law shall establish the territorial and political unit of the city of Caracas, which shall be called the “Crib of Bolivar” and “Queen of the Guaraira Repano.”

The National Power, through the Executive Power and with the collaboration and participation of all the entities of the National, State and Municipal Public Power as well as the Popular Power, its Communities, Communes and Communal Councils and other social organizations, will take all necessary actions for the urban reorganization, road restructuring, recuperation of the environment, attainment of optimal personal and public security levels, integral reinforcement of the neighborhoods, urbanizations, health, education, sport, entertainment and cultural systems, total recuperation of their center and historical sites, construction of small and medium size Satellite Cities along their territorial axis of expansion and, in general, to accomplish the most humanizing sum possible in the “Crib of Bolivar” and “Queen of the Guaraira Repano.

These dispositions will be applicable to the whole National System of Cities and their regional components.

Modifications and Comments: I am herein quoting both the text of the original article 18 and the text of the modifications being proposed by the government. The underlined part of the text is all that has survived from the original article 18. The rest has either been deleted from the original text or added in the new text of article 18.

From the reading of the original article 18 it is clear that the intention of the framers of the Bolivarian Constitution was to give Caracas a special status since it is home to the Federal (national) government. It is also clear that the framers of the Bolivarian Constitution were adamant in their intention of making sure that this special status would not jeopardize the right of the citizens to a democratic representation and/or the autonomy of the State of Miranda. So much so, that the city of Caracas was defined as a “Capital District” in article 16 of the Bolivarian Constitution as opposed to “Federal District” which was the status it had under the Constitution of 1961 (article 9).

The modified text of article 18 though moves away from what was originally intended by the framers of the Bolivarian Constitution and introduces new concepts that substantially modify the structure of the constitutional text. Modifications, that are in line and expand further those shady and unconstitutional amendments introduced to article 16.

Let’s start with what has been deleted from the original text of article 18. The paragraph that has been deleted basically indicated that Caracas was to have a two tier municipal structure of government that would protect both the city and the State municipal representation. It also indicated that a special law …"shall provide for the organization, government, administration, competency as well as resources of the city”… Finally, it stated that the …"law shall guarantee the democratic and participative character of its government.”

The first question that comes to mind when you look at the deleted text is, why has this paragraph been deleted?

It is clear that Caracas needs a special law to outline its organization and government since there is no reference as to the political structure of the “Capital District” anywhere else in the constitution. As for the democratic and participative character of the “Capital District” government, it is clear that this sentence is basically guaranteeing that such authorities would necessarily have to be elected.

So; the question stands; why has this text been deleted?

The only answer I can think of is the following. The modified text of article 16 introduces a new political division called “Federal City”. Federal cities are created by Presidential decree and their authorities are designated by the “National Power” (sic). Therefore, Caracas would not need a special law if it is going to be appointed a Federal City subject to the executive power. Its government does not need to be …"democratic and participative”… either, because, according to the modifications of article 16, all the authorities of Federal Cities and Federal Municipalities will be appointed by the National Power.

The modification to article 18 goes further and creates what it calls a “National System of Cities” that unifies and supports the …"local and regional scales in the systematic vision of the country.”…

The “systematic vision” of the country has been outlined in article 16 which creates a parallel and centralized political structure to compete and eventually destroy the federal structure mandated by the constitution.

In essence, every major city in Venezuela could be appointed a “Federal City” by decree. Further, all municipalities in the city, as well as in their ..." associated territories”…. can be appointed “Federal Municipalities” and hence, all their authorities would be appointed by the National Power.

To have an idea as to how in a very short period of time (speed) the whole landscape of the Venezuelan federal division of government could be destroyed and the right of the people to elect their local authorities eliminated, we are herewith including a table of the potential cities that could become “Federal Cities” within the “National System of Cities”. We are including in this table all the capital cities of each State as well as a group of large cities with populations over 300,000 inhabitants.



Bringing 45 cities into the so called “National System of Cities” would allow the National government to exercise direct political power without elections and/or elected officials over 47% of the Venezuelan population. As a matter of fact, starting with only 7 cities would give the national government that same power over 25% of the population. Of course it will also allow the national government to control any public gathering and/or legal demonstration against their policies since the federal municipalities would be the ones in charge of granting those permits.

The two last paragraphs of the modified article 18 basically give the National Power a blank check to take over, through the Federal Cities and Federal Municipalities, almost all the functions of the Municipalities and even some from the States. Of course, it also states that the National Power will exercise all these functions through the Executive Power and that this is applicable to all the cities that are included in the so called “National System of Cities”.

Overall, most of the modifications to the text of article 18 basically expand further what has already been mentioned in article 16.

There is though some intriguing text that has been included in this article. This text basically creates a new right called the “Right to the City”; a right that, by itself, seems to be a first in a constitutional text. What makes this concept so intriguing is the fact that this right is being defined as an “equitable benefit” that every habitant has the right to enjoy and further, hold title to.

Granted that the text is as confusing as they come, there are some concepts though that could give some light as to what this text means.

One concept that I believe particularly relevant is what should be understood by the term “city”.

In essence a city is basically a gathering of private homes, private businesses, public roads, public parks, public government buildings, private empty lots, public empty lots, private social, cultural and sport facilities, public facilities such as public transportation, bus/train/sub terminals and airports, public cultural and sport facilities and the power, communication, water and sewer infrastructure. There is really nothing else in a city.

Now, most of these elements are already public and everyone has the right to enjoy them. So, why is there a need to create a special new “Right to the City” when the people already have that right? It makes no sense, unless, the intention is to make public what is not public today. That is, private homes, private businesses, private empty lots and private social, cultural and sport facilities.

Could it be that this is what the phrase “equitable access” is referring to?

I can not answer that question but I can certainly say that the modification of this article is written in such a confusing and shady way that the possibility of an outrageous violation of private property using this article as an excuse is indeed a clear and present danger.

I can also say that giving the National Power and/or Executive Power the right to exercise their power at the State and Municipal level is unconstitutional because:

1) It violates article # 164, Title IV, Chapter III 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"…

2) 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.”…
Giving power to the National Government to act at the Municipal and State level attempts against the autonomy of the States and the nature of the Federal Government and therefore violates the fundamental principles (Title I, article # 4 of the “Fundamental Principles” - …The Bolivarian Republic of Venezuela is a …Federal State”…) and introduces a significant modification to the structure of the Bolivarian Constitution of 1999.

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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Article 167 (AIO)

Article 167 is notable more for what was removed than what was changed or added. Before I start though, take a look at this. Are bolivars green? How about bolivars fuertes? It’s a telling statement about what Chavismo seems to think matters in terms of government revenue…

Here is the original article (translation courtesy of www.constitucion.ve , please blame them for the poor grammar):

Are revenues of the States:
1. Those deriving from their property and the management of their assets.

2. Charges for the use of their goods and services, fines and penalties, and any charges allocated to them.

3. Proceeds from the sale of State-owned commodities.

4. The resources to which they are entitled by virtue of constitutional revenue share (situado constitutional). The revenue share is equivalent to up to 20% of total ordinary revenues as estimated annually by the National Treasure, which is to be distributed among the States and the Capital District as follows: 30% of the aforementioned percentage in equal shares, and the remaining 70% in proportion to the population of each of such entities.
During each fiscal year, the States must invest at least 50% of the amount to which they are entitled by way of revenue share. During each fiscal year, the Municipalities of each State shall be entitled to at least 20% of the revenue share and of all other ordinary revenues of the State corresponding. In the event of changes in the revenues of the National Treasury that require an adjustment to the National Budget, the constitutional revenue share shall be adjusted in the same proportion.
Principles, rules and procedures with a view to ensure the proper and efficient use of the resources deriving from the constitutional revenue share and the share of the Municipalities therein shall be established by law.

5. Any other taxes, charges and special contributions that may be allocated to them by national law for the purpose of helping to develop the state treasuries.
Laws creating or transferring tax revenues to the States may offset these allocations by means of changes in the other revenue categories indicated in this article, in order to preserve interterritorial fairness. The percentage of estimated ordinary national revenues allocated to the constitutional revenue share shall be no less than 15% of estimated ordinary revenues, taking into account the financial position and sustainability of the National Public Treasury, without neglecting the ability of the state administrative authorities to provide adequately for the services for which they are responsible.

6. Resources deriving from the Interterritorial Compensation Fund and from any other transfer, subsidy or special appropriation, as well as those allocated to them as a share of national tax revenues, in accordance with the pertinent law.

Here is a summary of changes in the proposed Article 167. Sections 1-3 were unchanged, as were the parts of 4-6 that aren’t addressed here. (And I kept some of the poor grammar.):
Are revenues of the States:
4. Minimum raised from 20% to 25%. Distribution now includes Federal Territories, Federal Municipalities, Communes and Communities. Proscribed ratio deleted.
Municipality minimum share raised from 20% to 25% (of state total).
Deleted: “In the event of changes in the revenues of the National Treasury that require an adjustment to the National Budget, the constitutional revenue share shall be adjusted in the same proportion.”
Deleted: “la participación municipal” in use of revenue share.
5. Deleted: “The percentage of estimated ordinary national revenues allocated to the constitutional revenue share shall be no less than 15% of estimated ordinary revenues, taking into account the financial position and sustainability of the National Public Treasury, without neglecting the ability of the state administrative authorities to provide adequately for the services for which they are responsible.”
6. Deleted: “Resources deriving from the Interterritorial Compensation Fund.”

First, minimum distribution of revenues has been increased, both for states and for municipality portion of that state revenue. This sounds good on the surface. However, the phrase that was deleted ensures that states will not get what appears to be their full share, at least in terms of share of total federal government expenditures.

The Venezuelan government has, for several consecutive years, created a budget, then gone and passed additional expenditures later in the year. (Often more than once.) I’d like to tell you how much that has been the last few years, but the Ministry of Finance for some reason doesn’t make that little fact easily available on its website. (Perhaps they don’t want us to know?) If you don’t think it’s a big number, consider this: the budget is drafted with an estimate of oil revenue, which is typically low. In 2006, for example, the budget value was $26. Average oil price for the year was $56.45 – 117% above the budgeted value. Since oil income is somewhere around half of national income, states can expect to lose about a quarter of what should have been their revenues. And a quarter of 25% off leaves them with 18.75% of oil income, less than the 20% they would get without the reform.

And that 25% does not include one of Chavez’s biggest pet projects: Fonden. I don’t know quite how much money that fund has supposedly received since it was created, but it’s quite a few billion (not that there are any transparent accounts if it anywhere). Let’s say it’s been 10 billion – that’s 2 billion that should have gone to the states already but didn’t. So there are two mechanisms which will ensure that states will get a larger share of the pie, but guarantee that the pie will be much smaller than it used to be.

Finally, the money distributed also has to be shared with “Federal Territories, Federal Municipalities, Communes and Communities,” not all of which exist or are even defined. Nor does it say what share those entities will get. Since there is no longer a set ratio, any of those could theoretically get all of it. I won’t predict that as a possibility, but note one fact: the new version gives no description of how those funds will be split up. Any guess who gets to decide?

Section 5 removes the minimum amount that the states could receive under any circumstances. In other words, while they used to be guaranteed 15% of total estimated ordinary revenue, there is no longer any certainty of that. Given the size of additional expenditures each year and the Fonden, it’s easy to believe that state share will end up well under 15%.

Section 6 removes the “Interterritorial Compensation Fund” from potential state revenue. Honestly, I’m not even sure what this was, but it evidently was money just for the states, and this makes one more source of their revenue dry up and go away.

So the net result of this reform will be for less money to go directly to the states, and more money to stay with the federal government. This certainly doesn’t preclude the feds from spending money on specific states, including on important projects. But it does create a system which appears designed specifically to facilitate political patronage, which has been one of the best friends of Latin American caudillos of every stripe for the last 200 years.

So the governors (and mayors, plus whatever the name of a commune leader will be) who are seen as the best at their job will be the ones who can secure the most federal funds for their areas. And the ones who succeed at that will probably be the ones who are best at sucking up to Chavez. Is that a skill that anyone really wants in an elected representative?

Our cartoon friends who help us understand the old Constitution tell us that “Los recursos son fundamentales para el desarollo de los estados” – “resources are fundamental for the development of the states.” If that was so true, then what motive does Chavez have for giving them fewer resources?

It’s quite simple: all of the funds that would have been transferred to the states remain under control of the federal government, and with fewer controls and more discretion than before. In other words, Chavez has more money at his disposal and fewer restrictions on how it gets spent.

Thanks to this reform, because even more government resources will depend on Chavez, he will be able to make himself seem even more indispensable than ever.

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This is the second article reviewed by AIO
aninterestedobserver at yahoo dot com

Original article published here.
Spanish version to be announced
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