Articles 328 and 329: Alek Boyd

Article 328 (1999): The National Armed Forces constitute an essentially professional institution, with no political orientation, organized by the State to guarantee the independence and sovereignty of the Nation and ensure the integrity of its geographical space, through military defense, cooperation for the purpose of maintaining internal order and active participation in national development, in accordance with this Constitution and the law. In performing their functions, they are at the exclusive service of the Nation, and in no case at the service of any person or political partisanship. The pillars on which they are founded are discipline, obedience and subordination. The National Armed Forces consist of the Army, the Navy, the Air Force and the National Guard, which function in an integrated manner within the scope of their competence to fulfill their mission, with their own overall Social Security system, as established under the pertinent organic law.

Proposed Amendment:
Article 328: The National Armed Forces constitute an essentially patriotic, popular and anti-imperialist institution organized by the State to guarantee the independence and sovereignty of the Nation; to preserve it from any internal or external attacks and ensure the integrity of its geographic area through the study, planning and execution of the Bolivarian military doctrine, the implementation of the principles of integral military defense and the war of popular resistance, the permanent participation in tasks akin to maintaining security of the citizenry, and the upkeep of the internal order as well as the active engagement in economic, social, scientific and technological development plans in accordance to this constitution and the law.

In the performance of its functions it will always be at the service of the Venezuelan people defending its sacred interests and under no circumstances will serve any oligarchies or imperial foreign powers.

Its fundamental pillars are this constitution and the law, as well as discipline, obedience and subordination.

Its historical pillars are in Bolivar's mandate: to free the nation, to take the sword to defend social guarantees and to deserve people's blessings.

Commentary: The first and most important aspect that jumps from the proposed amendment is that the National Armed Forces will no longer be an apolitical body. Professionalism is replaced by “patriotic, popular and anti-imperialist” one supposes according to Hugo Chavez's understanding of these terms. A fact that has not gone unnoticed in recent military parades in Venezuela is the chant “fatherland, socialism or death” (Patria, socialismo o muerte). In fact president Chavez maintains that such premise has to become the backbone of Venezuela's soldiers.

This amendment plainly seeks to remove any traces of separation between Executive and military power, fusing the two and subordinating the latter, according to the new constitution's fundamental pillars, to the president, ergo Hugo Chavez effectively becomes the people. Such absolutist measure has no parallel in Venezuela's contemporary history though it is to be expected from a militaristic caudillo hell bent in ruling indefinitely.

The term “popular” seems misplaced within the context. However the introduction of an “anti-imperialist” reference within the constitutional framework serves the purpose of legalizing an otherwise rhetorical term, deprived of its meaning, commonly used by the president and his supporters, considering the leverage that the Cuban dictator has not only on Chavez but in matters of State in Venezuela.

The Boliviarian military doctrine remains as unknown as an intelligible definition of 'XXI century socialism.' However the term “war of popular resistance” has got an awfully similar ring to Cuba's “guerra de todo el pueblo.”

Article 329 (1999): The Army, Navy and Air Force have as their essential responsibility the planning, execution and control of military operations as required to ensure the defense of the Nation. The National Guard shall cooperate in the carrying out of these operations, and shall have as its basic responsibility that of conducting operations as required to maintain internal order within the country. The National Armed Forces shall carry out activities of administrative policing and criminal investigation activities as provided for by law.

Proposed Amendment
Article 329: The Bolivarian Armed Forces are formed by the different land, sea and air bodies, administratively organized in the following components: the Bolivarian Army, the Bolivarian Navy, the Bolivarian Air Force, The Bolivarian Territorial Guard and the Bolivarian Popular Militia, said components structured in combined units of assistance, training and joint operations, both at the tactical and strategic level in order to fulfil its mission.
The Bolivarian Armed Forces will be able to perform administrative police and penal investigation activities as mandated by law.

Provisional ordinance (from the National Assembly dispositions)

The National Guard will become an essentially military body that might be destined by its commander in chief to form land, sea and air units as part of other military components. With part of its human, technical and material resources police corps could also be formed. Its military definition will change to that of Territorial Guard.

Another provisional ordinance

The units and components of the military reserve will become units of the Bolivarian Popular Militia.

Commentary: “defense of the nation” is not reiterated in the proposed amendment to article 329. Rather it aims at restructuring the armed forces and introduces the militia, that president Chavez has been forming and arming, as just another branch of it. To date no legislation to regulate the militia has been drafted and no evidence has been presented as to the final destination of the many thousands of Kalashnikov riffles imported from Russia, thought to be in the hands of the militia. The common military hierarchical meritocratic structure will coexist alongside a poorly trained civilian component. Revolutionary fervor and absolute allegiance to Hugo Chavez appears to make up for military knowledge. The interesting aspect of it is that Bolivarian militias will perhaps keep orthodox military personnel / components in check in order to inform the maximum leader. Having no formal, professional or institutional structure militias could have direct access to the office of the presidency. Needless to say that there is no contemporary constitutional precedence of giving praetorian guards such status within Venezuela's armed forces. Again its resemblance with Cuba's structure is remarkable

It is to be noted that the Bolivarian militias, as part of the armed forces “will be able to perform administrative police and penal investigation activities as mandated by law.” It remains to be seen what laws will be drafted and passed to regulate such activities, in particular those of the militias and what balancing mechanisms will be put into place to make it accountable before the law. Taking into consideration current circumstances it is highly unlikely that victims of 'revolutionary laws and justice' will get any redress from Venezuela's totally subordinated to the Executive judiciary. The implications that it has for the common folk are manifold, however the most worrying element is that the militias could become a sort of constitutionally backed vigilante groups with plenty of discretionary and fire power and under the direct orders of the president, that could be unleashed on those often referred to as the enemies of the process; read the opposition, human rights NGOs, student movements, the Church, the media, etc.

This measure regarding the militias is already affecting the region, as reports from Venezuelan military presence arrive from odd places such as Santa Cruz in Bolivia. Furthermore the prospect of a confederation between Venezuela and Cuba is constantly announced by president Chavez and one is already seeing Cuban ‘doctors’ working alongside Venezuelan military / militia, as denounced in Bolivia . To date the representatives of the Venezuelan people –read Congressmen and Congresswomen- have not legislated and approved laws with regards to sending troops to foreign countries, for this is a measure that depends solely on the discretion of he in charge of conducting foreign affairs: i.e. the president. Thus the ‘enemies of the revolution’ need be countered regardless of whether they are in Caracas, Bogotá, Santa Cruz, Managua, Buenos Aires or Lima. As Hugo Chavez promised recently from Havana, he is prepared to turn Bolivia into a Vietnam should Morales opponents oust him.

Alek Boyd can be joined directly at his own site, Vcrisis.

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Article 70: Virginia

Article 70 - 1999 Constitution

Means of people’s participation and involvement in the exercise of their sovereignty, in political affairs, among others, are: the election of public officials, the referendum, the consultation of public opinion, mandate revocation, the legislative, constitutional and constituent initiatives, the open town council, and the citizens’ assembly, whose decisions shall be binding. Means of participation in social and economic affairs are: the citizens’ service bureaus, self-management, co-management, all forms of cooperatives, including those of financial nature, credit unions, community enterprises, and other forms of association guided by the values of mutual cooperation and solidarity. The law shall establish conditions for the effective functioning of the means of participation contemplated under the present article.
(underlined sections are removed from the reformed article)

Article 70 Reformed

Means of people’s participation and involvement in the direct exercise of Their sovereignty, and FOR THE CONSTRUCTION OF SOCIALISM are: the election of public officials, the referendum, the consultation of public opinion, mandate revocation, the legislative, constitutional and constituent initiatives, the open town council, and the citizens’ assembly, THE DECISIONS OF THE LATTER BEING BINDING, THE COUNCILS OF POPULAR POWER (COMMUNAL COUNCILS, WORKERS COUNCILS, STUDENTS COUNCILS, FARMERS COUNCILS, AMONG OTHERS), THE WORKERS DEMOCRATIC MANAGEMENT OF ANY DIRECT OR INDIRECT SOCIAL PROPERTY ENTERPRISE, THE COMMUNAL self-management, FINANCIAL AND MICRO-FINANCIAL COMMUNAL ORGANIZATIONS, COMMUNAL PROPERTY COOPERATIVES, COMMUNAL credit unions, NETWORKS OF FREE ASSOCIATED PRODUCERS, VOLUNTARY WORK, community enterprises and other forms of association constituted to develop values of mutual cooperation and SOCIALIST solidarity
The law shall establish conditions for the effective functioning of the means of participation contemplated under the present article.
(sections in capital letters are new in the reformed article)

The section in parenthesis was modified by the National Assembly in the following way:

…/…THROUGH THE COMMUNAL COUNCILS, WORKERS COUNCILS, STUDENTS COUNCILS, FARMERS COUNCILS, ARTISAN COUNCILS, FISHERMEN COUNCILS, SPORTS COUNCILS, YOUTH COUNCILS, ELDERLY ADULTS COUNCILS, WOMEN COUNCILS, DISABLED PERSONS COUNCILS, AMONG OTHERS…/…

And the last paragraph will say: A NATIONAL LAW, instead of ‘The law”

--- --- --- --- --- --- --- --- --- --- ---

In order of appearance, this is the second article in the proposed reform presenting socialism as an exclusive system framing the activity of the government and of the citizens. “Means of people’s participation and involvement in the direct exercise of their sovereignty, and FOR THE CONSTRUCTION OF SOCIALISM”.

Taking into account that article 2 - part of the Fundamental Principles which cannot be altered by a constitutional reform- says that political pluralism is held as a superior value of the legal order and actions of the State, the first question the new article 70 poses is: Which article describes the means of participation of the people for purposes different from the construction of socialism?

There is no such article.

Does that mean that participation for other purposes will be considered unconstitutional? Let’s see:

“The government is and shall always be democratic, participatory and pluralist”, says Article 6 and “the organs of the State emanate from and are subject to the sovereignty of the people”, says article 5. The protection of the democratic exercise of the will of the people is guaranteed in article 3. All three also being part of the unalterable Fundamental Principles.
Furthermore, article 21 says that “all persons are equal before the law, and, consequently any discrimination with the intent or effect of nullifying or encroaching upon the recognition, enjoyment or exercise, on equal terms, of the rights and liberties of every individual shall not be permitted”.

Moreover, article 22 says that “The enunciation of rights and guarantees contained in this Constitution is not to be understood as negating others inherent to individuals, not expressly mentioned in such enunciation. The absence of a law regulating these rights shall not adversely affect the exercise thereof.”

The content of articles 2, 3, 5, 6, 21 and 22 clearly lead to the conclusion that the words ‘FOR THE CONSTRUCTION OF SOCIALISM” are superfluous and useless. And that is not even considering that the alluded socialism, (if it is the same as the so called ‘21st century socialism’) is nothing anybody can agree or disagree with, since it has only been defined in terms of what it will not be. It is something yet to be invented.

But this conclusion is only valid if the interpretation of the constitution is performed by an autonomous and impartial Judicial Power, one where its members are endowed with the honesty, capability, probity and excellence mandated by the constitution. With a Judicial Power under the control of the Executive and where the president of its Supreme Tribunal (twice fired from the Judicial system for illicit actions, in 1989 and 2003) is a member of the presidential committee for the constitutional reform (which makes her a judge and a party in the issue), the intention of the reform of article 70 of reducing the political rights of citizens to a single alternative becomes evident.

Another modification in article 70 is the elimination of co-management as a way of participation in social and economic affairs. Now there is no distinction between political, social or economic means of participation and only self-management is mentioned as a form of workers involvement in enterprise management. Is this an improvement? It depends on what kind of enterprises will the workers be allowed to manage themselves. Would Petróleos de Venezuela (PDVSA) for example be managed from now on by the company workers? Well, no. The article makes it clear that only in the restricted realm or environment of what is ‘communal’ the workers may have any involvement. The term ‘communal’ would be related to either Communes (political entities with forms of self government equivalent to parishes) or Communities, (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.- Mousqueton-Article 16). The alleged increase in participation and power transfer to the people, used to advertise the constitutional reform would be manifested only in matters of little transcendence, matters with virtually no significance in the national context.


Then what is the meaning of ‘THE WORKERS DEMOCRATIC MANAGEMENT OF ANY DIRECT OR INDIRECT SOCIAL PROPERTY ENTERPRISE’? Perhaps PDVSA falls into the category of Social property? Well, no. Direct Social Property will be “what the State assigns to Communes or Communities or Cities”. Indirect Social Property is something “exercised by the State in the name of a Community”, according to the reformed article 115. Again any enterprise management where the workers will be in charge will not be anything over which the State doesn’t have full control. Nowhere in this reformed article it is said that the workers will have something to do with Public Property, the one that ‘belongs’ to State Entities. One can foresee that it is in the latter category where PDVSA belongs.

Notably missing among the means of participation listed in the new article 70 is the exercise of popular control over the State entities through ‘contraloria social’.

The effort of the National Assembly to make this article attractive by adding Fishermen, The Young, Women, Disabled people etc, to the list of the Councils of Popular Power (where they were already implicitly included with the words ‘among others’), denotes the disregard and disrespect of the servile group of legislators (that represents less than 20% of the electorate) for the citizens, condescendingly underestimating intelligence. Why? Because the Popular Power, as described in the reformed article 136, is not exercised by electing any communal, woman, elderly or student leader in any election. It is exercised by “being part of communes, communities and cities self-government.”

The National Assembly was careful to emphasize that no form of self-government at any of the micro-levels where participation is graciously allowed could ever create special legislation.
They had to include the word ‘National’ to qualify the type of law that will establish the conditions for the effective functioning of the means of participation.

Another reduction of the people’s rights is the transformation of the formerly binding decisions of the Open Town Councils (Town Meetings), into non-binding in the reformed article 70.

There is no way to know how “SOCIALIST solidarity” deviates from the universally understood concept of solidarity. But if the deviation follows the same pattern as “revolutionary justice” or “revolutionary democracy” from their respective original concepts, we can expect a result with no resemblance whatsoever to what the term pretends to invoke.

Finally, voluntary work now is characterized as a means of participation. Since it is incomprehensible to consider it as a political, social or economical right, it is feasible that some National law will make it a duty or a condition to exercise some fundamental right.

Article 70 is under TITLE III of the constitution, which refers to Duties, Human Rights and Guarantees. The proposed modifications imply a substantial reduction of the people’s rights,
which is contrary to the principle of progressiveness, contemplated in the 1999 constitution.

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A first evaluation of the impact of the 69 amendments to the 1999 constitution (Guillermo P. translation and introduction)

Although Hugo Chavez is fond of portraying himself as a revolutionary in the tradition of Lenin, Mao, Fidel and Che, he has followed a distinctly unique approach on his path for absolute power over Venezuela. The key to that approach has been a limitless patience as well as an ability to charm a wide range of Venezuelans and international citizens. He has managed to convince many that his is a peaceful and democratic revolution, whose main concern is the well-being of the poor in Venezuela and the world.

But as the December deadline approaches for the modification of the Venezuelan constitution, Chavez's mundane desires become clearer: to have absolute power for as long as possible. As the constitutional lawyers Alirio Abreu Burelli and Carlos Ayala Corao point out in this article for El Nacional on Sunday, the modifications to the constitution represent an assault on democratic principles. Up until now, Chavez has been able to proceed by masking his dictatorial intentions. However, these constitutional changes being voted on by a puppet National Assembly are a de facto constitutional coup d’état that will centralize power in Chavez's hands and allow him to stay in power indefinitely. Abreu Burelli and Ayala Corao discuss some of the consequences of this impending assault in seven different sections of the constitution.


(Editor's note: To help illustrate the absolute power for Chavez trend within the regime El Nacional publishes this revealing picture of Chavez in the middle of his court. The original Spanish text of El Nacional article, by subscription, has been posted here. )

More losses than gains
El Nacional, 28 October 2007

Alirio Abreu Burelli, ex-magistrate for the Inter-American Court of Human Rights, and Carlos Ayala Corao, ex-president of the Inter-American Commission on Human rights, warn about the risks of modifying the Magna Carta so quickly and how it is an attempt to tailor it to the President’s political project.


AUTONOMY OF POWERS
It Will Be Easier to Remove Magistrates

What is lost?
The Supreme Court judges will be able to be freely removed by a simple majority of the National Assembly. Such a change reduces the independence and autonomy of the highest authorities of the Judicial Power, to the degree that they could give in to pressures in order to keep their positions.

The postulation committees will be made up of entities of the State and not by organizations from society, which diminishes the guarantees of impartiality for the rectors of Judicial Power and Citizen Power. The National Assembly will not have to approve the Plan for National Development.

The autonomy of the Central Bank of Venezuela, the autonomy of monetary policy and the administration of cash; all these will be in the hands of the President of the Republic.

The national government council and the State council were presided by the vice president (now it will be by the President).

What is gained?
More awareness within Venezuelan society about the importance of the independence and autonomy of public powers for a democracy.

More awareness among the international community about the undemocratic nature of the constitutional reform.

DECENTRALIZATION
The Entire Country Will Be Controlled From Miraflores Palace

What is lost?
The “national system of cities” will imply centralization in the Executive Power of the local duties of cities. The nationalization and centralization of the regulations for Caracas and the Federal District.

The centralization of communal councils within the national power; their registry, regulation and financing.

The centralization of the national government council: its members will include only those governors and mayors “convened” by the President.

The President will be able to create military regions and name their authorities.

He will be able to create central entities that are above the states and municipalities, such as federal provinces, federal territories, functional districts; and to name their authorities (they will not be elected).

The elimination of the Metropolitan District of Caracas and its substitution by a Federal District. The democratic origin of its authorities is not clearly visible.

What is gained?
In theory, more constitutional stipends, but not in practice, because now the states and municipalities will have to share not only with the Federal District, but also with the communal councils and the rest of the organs of popular power (and it is not clear if also with the federal provinces, federal territories and functional districts).

STATES OF EMERGENCY
The Government Will Act Without Control During Emergencies

What is lost?
The right to information and due process could be affected, rights that are fundamental for avoiding abuses of authority. It is not enough to guarantee a few rights of due process, since it is an integral right that cannot be divided.

When article 337 of the current Constitution is modified, in order to exclude the right to information as one of the rights that cannot be suspended during states of emergency, the principle of progressiveness is violated, as expressly consecrated in article 19 of the Magna Carta.

The parliamentary control for revoking the decree of a state of emergency.

From the limited notion of “restriction” we now return to the dangerous notion of “suspension.”

The temporal limits of states of emergency as a guarantee.

The judicial control that figures in the current Constitution as an unavoidable requisite is not made clear.

Specific references to the international limits of states of emergencies (Inter-American Convention on Human Rights and International Covenant of Civil and Political Rights).

What is gained?
More awareness about the risks of restrictions on freedom of expression during states of emergency.

PROPERTY
Goods Deemed Liable to Expropriation Can Be Occupied Immediately

What is lost?
The explicit constitutional acknowledgment of property as a right.

The consecration of the social function of property.

The universality of the goods that can be the object of property. The distinction between “goods for use and consumption” and “goods for production acquired legitimately” is an invitation to arbitrariness so that the law can determine what goods are susceptible to property. Moreover, what does goods “acquired legitimately” mean, and who will determine what they are?

The goods that are the object of appropriation can be occupied administratively without any previous judicial authorization, which leaves them practically powerless at the hands of the State.

The guarantee against the confiscation of land.

Environmental offenses will be able to be punished with the confiscation of land; moreover, the types of offenses are not determined.

The dismantling of intellectual property, its protection is not fully guaranteed.

All of this generates judicial insecurity for all Venezuelans.

What is gained?
More awareness about the risks of arbitrary actions against property in the new Constitution.

WORKERS RIGHTS
Security for Independent Workers Was A Debt

What is lost?
Work as a freedom for human beings.

The right of citizens to dedicate themselves to a legal economic activity of their choice. Now, Venezuelans will work under whatever conditions the Government imposes, within the range of State policies.

The risks for the autonomy of unions when facing the new workers councils.

In practice, the right of workers to associate with one another for the sake of making demands could be evaded by a State-promoted leadership, despite the fact that in many cases the State is the patron.

What is gained?
The reduction of the work cycle to 6 daily hours or 36 weekly hours.

A social security system that supports independent workers, with the provision of creating a fund nourished with contributions from the State and the worker.

Because it is a matter of social justice, it is logical to see an almost general support for the improvement of the working conditions and guarantees for Venezuelan workers.

Both matters could have been resolved legally several years ago, according to the specific mandates of the current Constitution.

PARTICIPATION OF CITIZENS
Now It Will Be Harder To Revoke Bad Elected Officials

What is lost?
Political pluralism, since the mechanisms of participation (elections, referendums, etc.) will be tied to a single ideology: socialism.

The conditions that facilitate popular initiatives (constitutional and constituent reform) and the various referendums.

Governance by elected authorities. The President of the Republic will be able to name central authorities to govern without being elected (federal territories, federal provinces, functional municipalities, military and special regions, and others).

A popular power that does not surge from the votes of the people. The authorities in charge of popular power will not be elected by their communities through free and secret elections.

The gathering of society and the masses under the control of the State: Popular Power ends up being a “power” of the State, and it no longer belongs to citizens who participate from society.

What is gained?
More awareness among people about the loss of participatory and democratic spaces in the new Constitution that is about to be approved.

An excessive stability for elected officials.

NATIONAL ARMED FORCES
The State Will Fight Against the “Internal Enemy”

What is lost?
The character of an institution that is not at the service of any single person.

Its institutional mission within a Constitutional State of Law, beyond any political or party conceptions (Bolivarian Armed Forces).

The conception of the Armed Forces as being within “national security” so as to maintain order and defend itself from “internal” enemies.

The militarization of a large sector of the population, by means of their incorporation to a new component of the Armed Forces: the national militia.

The promotion of a popular war of resistance, instead of a culture of peace.

The disregard for recommendations by international organizations about the need for security forces to be of a civilian nature.

Increased direct interference from the President in promotions at all levels.

Increased direct interference from the head of State in the bodies, components and units of the National Armed Forces.

What is gained?
More awareness about the risks of dismantling the institutional nature of the National Armed Forces with the new Constitution.


(Editor's note: this is the first comprehensive summary of the new changes, which include the articles added quickly by the National Assembly to the Original proposal of Chavez of "only" 33 articles. That is, the changes now are a whopping 69 amendments to the 1999 constitution. We must admire the efforts of Abreu and Ayala to have tried to be as objective as possible in their discussion of such a flagrant legal coup).

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