The transition to the Socialist Constitution: Katy

Introduction: This post does not review a specific article but does examine the "Transitional Statutory Provisions", and as such is equally as important than any article since it will define how and when the new constitution will be applied.

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By Katy (who can be contacted at Caracas Chronicles). Originally published here.

If Venezuelan voters approve the proposed Constitution, the Reform project has included a number of “Transitional Statutory Provisions” to be implemented right after the vote. Reading them gives us a hint of what the Constitutional reality will be on December 3rd if the “Sí” option wins.

1. Legislative priorities – “We prioritise all and everything”

Assuming the Constitution is approved, the National Assembly will proceed to modify the laws necessary to establish a socialist economy. Its first priority will be to pass Organic laws in matters such as the promotion of the socialist economy (or is that the destruction of the private economy?), the regulation (or is it pillage?) of the Central Bank, the creation of the National Fund of Popular Power, the downgrading of municipal power, regulation of oil and gas, regulation of social security, regulation of pensions for informal workers, anti-monopoly legislation and annuity payments for workers on payroll.

What this hints at is that the National Assembly will go to work quickly to begin implementing the laws that back economic reforms on practically everything. Communal councils will begin receiving loads of cash, and state and local government will see their resources dwindle. Chávez will be in complete control of the Central Bank and its reserves. Informal workers will supposedly begin getting a pension fund and the oil and gas laws will be changed. The curious thing is that many of these laws are already part of Chavez’s enabling package, which makes the emphasis on how they will get to work quickly rather odd.

The last bit on the list of laws to be changed is the Organic Education Law. The immediate discussion and passage of this new law will be a chance for the government to steamroll a demoralized opposition and impose its control over private education once and for all.

Other laws that will be prioritised include Organic laws for the territorial (dis?)organization of the country, for the Foreign Service (to make them what, more chavista? Is that even possible?), a reform of the penal code to include sanctions against torture (don’t we have that already?) and an organic law for the justice system (see comment on Foreign Service law).

What this amounts to is that the National Assembly will “prioritise” absolutely everything in its grasp. In other words, they will leave no stone unturned, and there’s no way of telling which stones they will overturn first.

2. Perks – “Fellas, come back to Congress whenever you want”

One of the Transitional articles includes a provision that any National Assembly representative elected December of 2005 can reclaim their seat after having served in any position in the Executive Power. In other words, if Chávez fires you, you still have a job to go back to, unlike now, where you have to settle for any old Embassy he might throw your way.

3. Indigenous representatives and annuity charges – “Oh, let’s do our job”

Eight years after approving the current Constitution, there are still many provisions in it that have not been regulated. The Assembly, in a curious act of devilishness, has included a number of provisions that regulate articles in the established Constitution but are not part of the group of articles being considered for reform.

An example of this is Article 92, which says all workers have a right to their annuity payments, or “prestaciones sociales.” The Assembly has decided to include in their Transitional Provisions an article explaining exactly how workers will get their annuities. It says workers will earn annuities according to their last salary, and that this right will last for ten years (the writing is very vague on this one, pardon but I don’t yet have my Ph.D. in Chavistology to make ends or tails of it). The purpose of this seems to be to ensure workers’ annuities do not suffer because of the change in the workweek.

Another example is Article 125 of the current Constitution, which is not up for discussion and simply says that indigenous people will have their own representatives. Transitional Provisions explain exactly how indigenous representatives will be elected, bypassing the need for a special law in that regard. They also say that the demarcation of indigenous lands, something that according to the existing Constitution should have been done a long time ago, will have to be done… in the next two years!

The indigenous lobby must be thrilled with all this attention they’re getting. Too bad it amounts to not much.

4. Deferring to other people – “The following things will be handled by the people who are supposed to handle them according to existing legislation.”

Somehow the National Assembly saw the need to specify that things that specific people are in charge of handling specific things under existing laws, and that these things will continue to be handled by those people under existing laws, unless they (the Assembly) change their minds. If this sounds to you, as it does to me, as complete mumbo-jumbo and a total waste of paper, then maybe we didn’t go to enough law classes to understand the “intricacies” of the judicial “sciences.”

For example, the Provisions delegate to the CNE any authority to decide the details of how elections are to be carried out while new electoral laws are passed. In other words, it includes a paragraph saying that the CNE is in charge of elections until we change the laws, which is totally and completely obvious to me.

Furthermore, it specifies that, until new legislation is brought forth regarding empty lots of land, the administration of said lands will continue in the hands of Chávez under the guise of whatever the hell he decides is his will on a particular day, ermm, sorry, “existing legislation.”

The provisions also specify that the matters of “professional titles,” and “professional associations” will continue to be guided by existing legislation. Again, oddly enough, this is referring to an Article (105) that surprisingly! exists in our actual Constitution, which says something completely banal about how the law will regulate the requisites people need to earn a professional degree and associate with colleagues and, doubly surprising! is not even one of the articles being considered for the reform.

Finally, the Comptroller’s office and the regulations that govern its functioning are supposed to continue working under existing legislation. In other words, the Comptroller and his cronies can continue keeping their heads in the sand just fine.

5. The economy again – “Oh, in case it wasn’t clear by now, Chávez will run everything for as long as he wants”

There are separate provisions specifying that Chávez will have immediate power to modify key things about our economy. It would seem like the fact that Chávez has an Enabling Law with an actual expiration date is not enough, since the Transitional Provisions effectively hand over power to Chavez “until laws are passed” which could perfectly be never.

Insofar as laws are not approved, Chávez will be able to begin the transition to a socialist economy by decree. Chavez will also be able to fund Communal Councils immediately, until an Organic Law for the Popular Power is approved.

6. Decentralization – “Bye-bye suckas!!”

As was expected, a number of the transitory provisions deal with the immediate dismantling of decentralization.

The changes to the Constitutional Entitlements (Situado Constitucional), by which state and local governments are entitled to a certain percentage of the national budget, will come into effect with the Budget Law of 2009. In other words, decentralization has exactly one year before it ceases to exist.

Furthermore, it hands over to Chavez the power to create the Federal District of Caracas, remove current Major Mayor (no pun intended) Barreto and pass all administrative and bureaucratic tasks to the new Federal District authorities. Oh, I forgot, “as long as a new law isn’t passed”, which could be never. In other words, Chávez becomes the king and sole decider of the Federal District as well.

Finally, it says the State has one year to transfer all the power stipulated in the reform from the different local governments to Chavez.

The idea is clear: we have exactly one year before the decentralization experiment is part of history.

7. Presidential elections in 2012 – “Wait – Chavez resigns at the beginning of his fourth period?”

Curiously enough, the Provisions specify that the new, seven-year presidential term will only come into effect once the current one is done. In other words, there will be Presidential elections in 2012 and not 2013.

This is a surprise to me. If my calculator is correct, that means that elections following that will take place in 2019, for a term that would begin in early 2020. That means that if Chavez plans on staying until 2021, he’s planning to resign after the start of that term?

Wait, maybe they’re confused just like they were with the changes in the clock. Maybe Chavez wants to stay until 2030. But wait – elections would take place in 2026 and then in 2033. How would he only stay until 2030? Is he planning to die that year? Is he going to resign? Is he planning on changing the Constitution again in the future? Should we expect a change in 2010 saying the Presidential term is now TEN years instead of seven?

However, the article itself is written in quasi-grammatical fashion, as is usual with these shamefully uneducated lawmakers. It says, “Fourteenth: The presidential term established in article 230 of this Constitution will be applied once the current presidential term has expired.” Putting aside the issue that Presidential terms are not “applied”, it seems like there’s a wee-bit of a gray area there, but I find it unlikely that they will come up with nonsensical interpretations of this article. Then again, stranger things have happened.

8. State of exception – “Oh, I almost forgot, your rights will be taken from you whenever we say for as long as we want, starting now”

It’s been said before, but it begs repeating. The law passed in 2001 that regulated when, how and for how long the State can decree a “State of Exception” - see Musharraf (2007) – will cease to exist as soon as this Constitution is approved. In other words, if in the days after the Constitution is approved the government decides to enact an unlimited State of Exception, we will be in true legal limbo since there will be no law to regulate it – meaning, no law that says what the State can or cannot do during those “exceptional” times.

In this scenario, the National Assembly makes clear that it would not be violating any laws by enacting a State of Exception since, well, States of Exception will be completely unregulated. When the government begins to censor newspapers at will, it will have the law on its side.

Furthermore, the State of Exception will be for as long as the government wants it to be. Say, did you know that people in Egypt have been living under a State of Exception since 1967? Did you know that Hitler enacted a State of Exception following the Reichstag fire in 1933, and the German Constitution was effectively suspended until the war was over? Did you know that Syria has been in a State of Exception since 1963? Just thought I’d throw that out there. It’s amazing the kind of stuff you can learn from Wikipedia.

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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”

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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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Article 100 (Kensey Amaya)

Article 100 (original)
The folk cultures comprising the national identity of Venezuela enjoy special attention, with recognition of and respect for intercultural relations under the principle of equality of cultures. Incentives and inducements shall be provided for by law for persons, institutions and communities which promote, support, develop or finance cultural plans, programs and activities within the country and Venezuelan culture abroad. The State guarantees cultural workers inclusion in the Social security system to provide them with a dignified life, recognizing the idiosyncrasies of cultural work, in accordance with law.

Modified Article 100
*Note modifications are underlined
The Bolivarian Republic of Venezuela is a product of the mixing of various cultures; consequently the State recognizes and values the diversity of its Indigenous, European, and African roots that has created our great South American nation. The popular cultures, of Indigenous and African decent constituting the Venezuelan identity, enjoy special attention by recognizing and respecting its intercultural nature under the principle of cultural equality. Incentives and inducements shall be provided for by law for persons, institutions and communities which promote, support, develop or finance cultural plans, programs and activities within the country and Venezuelan culture abroad. The State guarantees cultural workers inclusion in the Social security system to provide them with a dignified life, recognizing the idiosyncrasies of cultural work, in accordance with law.

Comments on the modification

After reading the modified article it appears the changes are rather benign and minor. The major change has been defining the cultural heritage of Venezuela and what the “popular cultures” are. After a more careful read of the modification, one realizes that chavismo is defining what it is to be Venezuelan in a very narrow sense by inserting this statement: “The popular cultures, of Indigenous and African decent constituting the Venezuelan identity…”, this ultimately constitutes cultural and racial discrimination.

The most obvious problems with this modification is that Venezuelans are a mix of European, African, and Indigenous blood and culture. So how should Venezuelans define themselves, African? European? Indigenous? How should they/we divide and quantify the contribution of each culture when ours is a mixture of each one? To exemplify the stupidity of the modification one only has to highlight one of Venezuela’s most famous cultural traditions the Diablos de Yare. Traditions such as this were created through the mixing of Indigenous, African, and European cultures. To diminish European influence in creating Venezuelan culture and identity is cultural discrimination in its crudest form.

Chavismo’s discrimination towards European heritage is not something new. One of the most public acts was the destruction of a statue of Christopher Columbus on Columbus Day (“Dia de la Raza” in Venezuela) and the renaming of the day to “Indigenous day of resistance”. This act alone is symbolic of the dislike Chavismo has for European historical cultural heritage in Venezuela. This seems hypocritical since Venezuelan identity has been formed by these historical events, however horrifying some of them were. But rather than embrace, understand, and provide a context in which Venezuelan identity has been created, Chavismo has resorted to favoring one particular culture and interpretation of history to teach future generations what being a Venezuelan is, and is not.

The modified article is currently written in a way that suggests State support for cultural activities pertaining to the influence of European tradition in Venezuela will not be awarded. However, activities that promote the “popular cultures” (i.e. African and Indian) will be State supported. Again Chavez is discriminating against European culture by potentially not funding activities that uphold European influences in developing Venezuelan identity. Additionally, the new modification could be interpreted as allowing for State funding for autochthonous religious/cultural activities resulting in State sponsored religion. If the government were inclined to do so they could attempt to displace Catholicism/Christianity (European religion) with something more ”popular”

In a broader sense the modification is discriminatory to other cultures since it does not mention Asian and Middle Eastern influence, which has recently been influencing Venezuelan culture and history. The exclusion of these two geographic regions and its peoples from the modified article poses an interesting question. Why is Chavez limiting “popular cultures” to just Indigenous (Native Americans) and African roots? Native Americans were here before Africans and Europeans so why not define “popular culture” as just Indigenous activities? Essentially Chavez is defining what it is to be Venezuelan in a very narrow sense, by excluding recent cultural influences (ex. Asia, Middle East) and ignoring the historical European influences.

In short the modification to article 100 constitutes nothing short of cultural discrimination with the possible ulterior intention of rewriting history.

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Kensey writes his own blog, Venezuela US topics, and he can be reached there also for further questions.

-The end-

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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.

-The end-

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Article 141 (Feathers)

From this:

Sección Segunda: De la administración pública

Artículo 141

La Administración Pública está al servicio de los ciudadanos y ciudadanas y se fundamenta en los principios de honestidad, participación, celeridad, eficacia, eficiencia, transparencia, rendición de cuentas y responsabilidad en el ejercicio de la función pública, con sometimiento pleno a la ley y al derecho.

The Public Administration is at the service of the citizens and is based on the principles of honesty, participation, speed, effectiveness, efficiency, transparency, accountability and responsibility in the exercise of the public function, with total submission to the rule of law.

To this:

Artículo 141

Las administraciones públicas son las estructuras organizativas destinadas a servir de instrumento a los poderes públicos, para el ejercicio de sus funciones, y para la prestación de los servicios. Las categorías de administraciones públicas son: las administraciones públicas burocráticas o tradicionales, que son las que atienden a las estructuras previstas y reguladas en esta constitución y las leyes; y “las misiones”, constituidas por organizaciones de variada naturaleza, creadas para atender a la satisfacción de las más sentidas y urgentes necesidades de la población, cuya prestación exige de la aplicación de sistemas excepcionales, e incluso, experimentales, los cuales serán establecidos por el Poder Ejecutivo mediante reglamentos organizativos y funcionales.

The public administrations are the organizational structures destined to serve as instrument to the public powers, for the exercise of their functions, and for the services they provide. The categories of public administrations are: the bureaucratic or traditional public administrations, that are those that takes care of the structures predicted and regulated in this constitution and the laws; and “the misiones”, constituted by organizations of varied nature, created to take care of the satisfaction of the most felt and urgent necessities of the population, whose benefit demands of the application of exceptional systems, and, even experimental, which will be established by the Executive authority by means of organizational and functional regulations.


What this art. 141 modification proposal means?

The original art. 141 only states the function of public administration, and it states very clear that it is intended to serve the citizens. In this proposed modification, it doesn’t state clearly the function anymore, and tries to define a form to accomplish an unclear function. I am not a constitutional lawyer, but constitutions should only state rights and duties very clearly. The form is rarely a constitutional matter, that is what other laws are made for. Let’s see if I can explain myself better.

This proposed reform has some relevant points that deserve the attention of all their citizens:

1.Public administration would not serve the citizens but through the public powers.

The art. 141 proposal states that public administration, functioning as the traditional Max Weber’s bureaucratic model (used by all the countries, from the former Soviet Union to the United States of America), and functioning also as the famous Chavistas Misiones (welcome to the big bureaucracy elephant world of public administration!), are going to be serving to the public powers (poderes públicos), and not to the citizens. The article modified the wording, it does not say public administration is to serve their citizens anymore, but it says “public administration is a tool to public powers that…” . Art. 141 is not clear anymore in defining who the public administration should or not serve.

Why this is not clear if constitutions should be very precise bodies of law?

The devil’s advocate and Chavez can tell me, no! You didn’t understand why I was trying to say, you fool, the Poder Público is also the people´s, represented by this new power called “Citizen power” (or Popular Power). So the public administration, becoming a tool to the public powers and the citizen power will be the same as serving to the people, right? What? No, it’s not! It is not the same to say that people’s rights and duties as a community are the same as individuals’ citizen rights and duties.

It doesn’t have the same meaning.

If one dig deeper into the article that talks about what and whom constitute these “public powers”, one will find that Mr. Chavez is also reforming article 136, the one related to the public powers. In the proposed reform of art 136 the distribution of powers come divided in a territorial manner (popular, municipal, state and national) and as per their functions (legislative, executive, judiciary, citizen and electoral). Chavez is creating two new powers to give the impression of a decentralized autonomy between the government, but the reality is that there is no mention in the constitution that these powers must be autonomous. As a matter of fact, the whole constitutional proposal is aimed at centralized authority, and regulations. That’s why Chavez talks about it as a “block”. The only purpose for a country to structure its government into main powers is only to ensure that they function with autonomy in the most extended sense possible.

Moreover, the important highlight of this art. 136 is that representatives of this new "Citizen power" won’t be constituted by election, but put in by organized human groups. There's no clear wording into how this representatives will be "put" in their jobs, but the reform is very clear in saying that these representatives won’t be “born” through elections. Since those organized human groups won't be able to vote for representatives, the assumption is that some bureaucrat from the socialist party will put these representatives on their jobs and their credibility as unbiased auditors working for the citizens will be very low.

Hence, the “Citizen Power”, the branch of the public powers that will have the same constitutional weight as “individual citizens” in former constitutions, in reality won’t represent the people’s interest but the interest of the people who “put” them there in those jobs. Thus, it’s not the same thing as before the “reform”.

Venezuelans have to consider if this “affidavit” somehow violates the universal declaration of human rights. (art 21, numeral 3?)

What I am getting from all of this? This proposal is telling me, an individual citizen, to surrender my rights and duties regarding public administration to a public power that is not constituted by popular elections, so they can represent me. As a private citizen, as an individual, the only benefit I am getting is that this constitution will consider me an “organic nothing”… which, obviously, is not a benefit at all. My interest as a private citizen won’t be protected whatsoever in this reform and I won’t be able to complain, sue, and watch over the functioning of public administration. Can you imagine which levels will current corruption practices reach?

As a result of this modification, since public administration would not serve directly the people any longer, our money also won’t be working for you constitutionally speaking, but for the interest of the bureaucracy of the party who will control the Venezuelan state. Chavismo already controls it, but with a questionable legitimacy.

In conclusion, our public administration’s monies (Bolivares Fuertes or not) won’t be “ours” anymore, they would be intended for the public powers (and not the citizens), since this constitution is stripping us from our rights as citizens to be served by the state. If we received at the end some type of service form the public administration, we would had to thank Hugo for his graciousness in not taking it all for himself and his varied collection of powers, in his is sharing some breadcrumbs with us. Also, our very Venezuelan traditional right to complain (“derecho a pataleo”) will be gone since we wont have the constitutional right to ask for the services that the public administration owes us since, constitutionally speaking, civil servants are not legally bound to answer to you anymore, citizen of Venezuela.

2. Creation of more bureaucracy.

As consequence of this lack of clarity into whom public administration should serve, our money will be funneled into the already gigantic and very greedy monster of Venezuela’s state bureaucracy, spitting it out and then swallowing it again for another loop (Chavismo always was best at inventing the hardest way to go from point A to point B). I can only think how hard would be for old folks and retired public office personnel to claim for their pensions and social security. It is a horror today where public administration still has to answer to the citizens, it will be hell when you have no right to claim but wait for a mision to pay you whenever they can, or want.

Also, the funny thing is that when the rest of the world is trying to cut bureaucracy, Chavismo makes its goal, in a constitutional way, to make the state as big as it can. The problem with this set up in constitutional stone, is that first of all, it is terribly inefficient, and secondly, if in a few years some folk smarter and less greedy than Chavez and his collection of doofus that work for him come to power, and want to cut bureaucracy, they have to make a constitutional amendment, or propose a constitutional reform about it. That’s why I was writing above that Constitutions shouldn’t be talking about the way things take place. That’s why other bodies of law exist.

3.Why they took out the fundamental principles in which public administration should be based on?

The reform also erased the following from the 1999 original: “Public Administration … based on principles of honesty, participation, speed, effectiveness, efficiency, transparency, ACCOUNTABILITY and responsibility on the exercise of Public service under total submission of the rule of law.”

Why erasing all of this? Well, we saw in point 2 that Chavez is not precisely worried about handling money on an effective way since the amount of bureaucracy will become gigantic with this new constitution. It will be OK to misspend money. The public administration won’t have more constitutional accountability since they would not be required to give answers to any citizens on the things they do or not do, or the way they use money for. So, they all can misspend and do whatever they want without worrying of pesky accountability, not that they are too worried right now, but they have to work hard to cover up, and at the end of the day they know they are committing serious crimes to the nation, that the truth will emerge. With this new constitution, it would be only a matter of gossiping in any newspaper but mishandling money won’t be a crime punished it by law. Are you getting where all of this is going? Any official can be caught with a suitcase full of money, and it won’t be a problem since they can excuse it as some public administration affair. It would be much more easy to cover up any money mishandling.

Venezuelans might ask, but why this is so important? Our public administration during the 4th and the 5th republic have been always mediocre, and much very corrupted, so why worry that this article is been modified the way it is?

Because, my dear countryman, Chavistas are trying to wash their hands like Pontius Pilates so when this government falls it will not be possible to prosecute and hunt down the worst offenders to face justice. They want to dip their hands in the money and not be accountable for it, not even work hard to cover up their corruption deals, as simple as that. Bank robbery to the highest level. And, you can imagine the amount of people, citizens and internationals, who are salivating for this to happen, supporting this bullshit.

Graph taken from the official Venezuelan portal of the Venezuelan constitution of 1999. www.constitucion.ve.

Do you think the new article 141 reflect this graphic at all? For starters, you can erased the man at the last square, yes, the cartoon of the guy who looks like that Independence hero named Bolivar, talking about honesty and responsibility. And the old woman, she can wait at home for some misiones functionary, who for sure won’t be a catire like the one in the cartoon, to knock her door whenever he is allowed to pay her, or never.

Post written by Feathers, who writes her own blog.

Additional private comments to venezuela.constitution.trap@gmail.com, Subject: Art 141

Published originally here.

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