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.
Nov 9, 2007
The transition to the Socialist Constitution: Katy
Oct 19, 2007
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”
-The end-
Oct 3, 2007
Article 16 (Mousqueton)
Preamble: When I first asked the editor of this blog to allow me to comment on the constitutional modifications of articles 11, 16 and 18, I was totally aware, from the first reading, of the dangers that the modifications to article 11 posed to the Venezuelan democracy. At that time, I also thought that commenting article 16 was a waste of time because the text of this modification is the closest I have ever seen a constitutional text come to the legendary dyslectic speech of that beloved character called “Cantinflas” brilliantly portrayed by the Mexican actor Mario Moreno throughout his life. I decided to write comments on all three articles though because they are part of Title II of the Bolivarian Constitution of 1999 that deals with the territory and the political division of that territory. Far was I then from realizing that, as much as the implications of the modified text to article 11 where frightening, the implications of the modifications to the text of article 16 are by far, and I mean far, worse than those of article 11. Further, I was wrong and presumptuous by dismissing and labeling the text of the modifications to article 16 as “Cantinflesco”.
Modifications: Both the text of the original article 16 and the text of the modifications being proposed are long and they are better explained with the help of graphic outlines. I am therefore not going to quote these texts and instead I am herein including a link you can follow should you be interested in reading them ( Original Text / Modified Text ).
The political division of Federal Republics is a logical structure that divides the country in geographical areas for administration, political and citizen representation purposes. It basically resembles a pyramid with different levels of organization and citizen representation.
The Bolivarian Constitution of 1999 divides Venezuela in three basic political and representation levels of government: 1) The Federal (National) level, 2) The State level and 3) the Municipal Level. It also includes provisions for the incorporation of two optional additional levels: 1) Metropolitan Districts - Articles 170 and 171 - and 2) Parishes - Article 173.
Figure # 1 below provides a graphic representation of the political division of the Venezuelan Republic as per the Bolivarian Constitution of 1999.
The logic behind the option of creating Metropolitan Districts is that, in time, independent Municipalities may develop up to a point where a group of them could become a major metropolitan area. At that time these municipalities might want to incorporate as a “Metropolitan District” that encompasses the territory of all them. This way, they would be able to streamline rules and regulations as well as the political and representation relationship between Municipalities throughout the metropolitan area.
Following the same logic, Municipalities with large rural territories that have scattered communities might want to consider creating smaller entities of political and citizen representation. Hence, the creation of Parishes is a constitutional option that Municipalities can use to decentralize government at the municipal level in order to better serve the population in those communities.
In every case, all the political divisions or levels must comply with the constitutional mandate of allowing a republican representation of the citizens at each level. This is, the branches of power (Executive and Legislative) must be the same in every division or level and the representatives of the people (authorities) must be elected in general elections.
The current political division of the Venezuelan territory complies with these conditions as mandated in the “Fundamental Principles” of the Bolivarian Constitution of 1999 outlined in Title I, Articles 1 though 9, which are mandatory and “non amendable and/or revisable” (articles 340 and 342), and more specifically with the mandate on articles 4 and 6 that read:
Article 4: The Bolivarian Republic of Venezuela is a decentralized Federal State on the terms set forth in this Constitution, governed by the principles of territorial integrity, cooperation, solidarity, attendance and shared responsibility.
Article 6: The government of the Bolivarian Republic of Venezuela and of the political organs that comprise the same, is and shall always be democratic, participatory, elective, decentralized, alternative, responsible and pluralist, with revocable mandates.
It should be noted that the political division and the mandate to organize the country under a federal republican government constitutes the backbone of the Bolivarian Constitution of 1999. So much so, that out of the total 350 articles included in the constitution, 153 articles, that is 43% of all articles, are dedicated to explaining and regulating the term, scope, attributions, responsibilities and the rights of the citizens in the different levels and/or political divisions of this government structure.
The modifications being proposed to article 16 though, introduces a completely different political division (structure) of the Venezuelan Republic which, at first sight, seems to have absolutely no organizational, administrative, political and certainly, no constitutional logic. Further more, it introduces changes that are not explained and/or regulated anywhere in the Bolivarian Constitution of 1999 and for that matter, not even vaguely referenced anywhere in the whole text of the constitution.
To illustrate the major differences being introduced in the modified text of article 16 we are including a table (Figure # 2) that provides a visual reference as to the political division of the Venezuelan Republic in three different documents. These are; 1) The Venezuelan Constitution of 1961, 2) The Bolivarian Constitution of 1999 and 3) The proposed text for article 16. The different political divisions and/or levels of organization are being outlined in the same order as they appear in the text of each document.
Since the proposed political division in the modified text of article 16 is so confusing and given the fact that there is no precedence for this type of political division either in the Constitution of 1961 or the Bolivarian Constitution of 1999 it seemed logical to research the constitutional text of other “federal republican constitutions” to try and find similar political divisions. None of the constitutions that were researched though (Argentina, Brazil, Mexico, and the United States) shed any light as to where this political division concept could have come from. Further, though Cuba is not a federal republic, we also could not find in the Cuban Constitution anything that vaguely resembles the above mentioned political division.
Frustrated with the inability to find any logic to the proposed political division we were about to focus only on the confusing and in some instances somewhat pompous language of the proposed text when suddenly it strike us.
The reason why we could not find any logic and/or sense to the proposed political division was because the text was not describing one political division but indeed two different, separate and overlapping political divisions written into the same text.
Just like the notes of two different songs played together do not make sense unless played separately, the modified text of article 16 describes two separate political divisions that only make sense when outlined separately.
In the following table (Figure # 3) we are outlining the two now perfectly logical and overlapping political divisions being introduced by the modified text of article 16.
As amazing as it may be, the modified text of article 16 introduces two separate, opposite, parallel, overlapping and most probably competing government structures to govern the same country.
It also re-arranges the territory introducing political divisions that are made up from parts or all the current territories assigned by the constitution to one or more States and Municipalities. These territorial assignments are very broadly described in the proposed amended text to article 16 and certainly they are not regulated in any way, shape or form.- Federal Provinces: Which are basically a political equivalent to the States, will be formed by …“aggregating either States or Municipalities”…The concept of Provinces is not alien to Venezuelan history since, originally, the political division of Venezuela included six provinces: Venezuela or Caracas, Maracaibo, Cumana, Guayana, Margarita and Trinidad.
- Functional Districts: Which are basically political equivalents to the Metropolitan Districts will be formed …“by one or more Municipalities or Territorial Lots on them, without regard to the State they belong to.”…
- Insular Districts: The original text of article 16 included Federal Dependencies. These have been dropped and replaced by Oceanic Regions. Federal Dependencies included all those islands that were not part of a State. Oceanic Regions do not make that distinction so territories such as Margarita could become Insular Districts subject to the executive branch of power.
- Federal Cities: Will allow the government to take direct control over any major metropolitan city, regardless of which State they are in and/or their Municipalities (…”The President of the Republic, in the Council of Ministers, after an agreement approved by a simple majority of Representatives of the National Assembly, will be able to create by decree, Federal Provinces, Federal Cities and Functional Districts”…), (…”In the Federal Territory, the Federal Municipality and the Federal City, the national Power will designate the respective authorities”…).
- Federal Municipalities: Municipalities in Federal Territories would be under government control and their authorities will be appointed by the national government.
- Cities / Communal Cities: This is the new …"primary political unit in the national territory organization"… and hence the political equivalent of the “Municipalities”. “Cities” and “Communal Cities” are the same thing since all cities will become “Communal Cities” when …"organized Communities, Communes and self communal governments are established in the totality of its perimeter."… without any regard for the Municipalities.
- Communes: Are the political equivalent of the Parishes except that they are mandatory; Parishes were optional. Also, Communes are political entities with …"forms of self government and any other expression of direct Democracy."…
- Communities: This is a new micro political division that is being introduced by article 16 which can only be explained as an obsession to micro manage the lives of the people. After communities the only thing left are “homes”.
From a constitutional standpoint, the two overlapping political divisions being introduced by the modified text of article 16 are dramatically different.
As per the constitutional mandate in the “Fundamental Principles” of the Bolivarian Constitution of 1999 (articles 4 & 6), Political Division “A” is Federal, Elective and Decentralized. “Political Division “B” though is quite the opposite; it is not Federal because none of the divisions created comply with the autonomous nature of a Federal Republic; it is non-elective because most of the authorities are appointed by the national government and, it is not decentralized because they are all subject to the national government.
Finally, the undetermined and absurd nature of this dual political division is pretty much covered up with the all inclusive, all uncertain and all powerful political alibi measure of choice: …"The political-territorial organization of the Republic will be legislated by an Organic Law."
Comment 1: Let me start by commenting what, without doubt, is the most important conclusion you arrive at after reading the above factual analysis.
The modified text of article 16 being introduced by the government is absolutely UNCONSTITUTIONAL for the following reasons:a. It violates Title I, article # 4 of the “Fundamental Principles” in the Bolivarian Constitution of 1999 that mandates: …The Bolivarian Republic of Venezuela is a …federal State”…
Comment 2: From a political standpoint, the introduction of two overlapping political divisions is a clear attempt to destroy the power base of the States and their municipalities. The centralized political structure under the national government control will have more economic resources and no constitutional restrictions. Eventually, it will be perceived as more efficient than the federal structure and therefore such will loose political power and representation.
The new political division introduces new political divisions that are not subject to the States and hence they are not federal. Further, it introduces political divisions that include territories from more than one State and authorities that are not accountable to either of such destroying this way the integrity of the federal system.
b. It violates Title I, article # 4 and 6 of the “Fundamental Principles” in the Bolivarian Constitution of 1999 that mandates: …”The Bolivarian Republic of Venezuela is a decentralized… State”...” The government of the Bolivarian Republic of Venezuela and of the political organs comprising the same, is and shall always be… decentralized”…
The new political division introduces authorities that are appointed and/or removed by the national government and hence dependant from such. This constitutes a centralized system of government and further, allows the executive branch to exercise authority at the State and Municipal level which is as power that neither the President nor the National Assembly has under the constitution.
c. It violates Title I, article # 6 of the “Fundamental Principles” in the Bolivarian Constitution of 1999 that mandates: …”The government of the Bolivarian Republic of Venezuela and of the political organs comprising the same, is and shall always be… elective”..
The new political division introduces authorities that are appointed and not elected.
d. It violates Title IX, Chapter II, article # 342 of the Bolivarian Constitution of 1999 that mandates: …” The purpose of the constitutional reform is to effect a partial revision of this Constitution and replacement of one or more of the provisions hereof, without modifying the fundamental principles and structure of the text of the Constitution.”…
The new political division introduces a significant modification to the fundamental principles and particularly to the structure of the text of the Constitution. It curtails the power and territory of the States and Municipalities. It introduces political divisions and entities that are not legislated under the Constitution. It creates a new primary political unit that modifies the responsibilities and the political relationship of the Municipalities with other political entities. It modifies the representation of the people at the Municipal and State level. It subjects people to different authorities without the legislation to guarantee their rights. In sum; it introduces a major modification to the structure of the text of the Constitution.
e. It violates Title IV, Chapter III, article # 164 of the Bolivarian Constitution of 1999 that mandates: …”Is of the States exclusive competence: … (2) Organization of their Municipalities and other local organs and the territorial and political divisions between them”…
Comment 3: The modifications introduced to article # 16 are a clear attempt by the government to introduce a centralize, non elective and dependent political structure that will change the nature of the Venezuelan government which by constitutional mandate is republican, federal and constitutional. The problem is that this can not be done through constitutional amendments and/or reforms because the constitution does not allow it. The only way to make those changes is to elect a National Constituent Assembly to write a new Constitution.
Mousqueton
venezuela.constitution.trap@gmail.com
Spanish language version of this post can be found at the following site: “No a la reforma constitucional de Chávez”
-The end-
Sep 20, 2007
Article 11 (Mousqueton)
Preamble: Most constitutions include two basic sets of articles that define what and who are the subjects of the Constitution. This is; What is the country? and, Who are the nationals of that country?
In the Bolivarian Constitution of 1999 the definition of - What is Venezuela? - Is done in Title II, Chapter 1, Articles 10 through 15.
Article 11: “The full sovereignty of the Republic is exercised on the continental and insular spaces,”..... -Click link above to read full text- ....... “public international agreements and by the national legislation” . …….
Comment 1: The first part of the text of the newly proposed article 11 is exactly the same as the one in the Bolivarian Constitution of 1999. The description of the Venezuelan territory in both texts though is extremely thorough by international standards and certainly far more specific than the description in the Constitution of 1961 and its reforms of 1983.
There is a reason for this though, since 1961 substantial changes and legal definitions have been introduced to international laws and more specifically in whole bodies of law such as the Law of the Sea.
While Venezuela was one of the countries that spearheaded the revolutionary United Nations Convention of the Law of the Sea and a signatory of the final document approved in Montego Bay (1982), Venezuela has not ratified the Convention because it has observations to the articles that deal with the delimitation of territories and more specifically with articles 15, 74, 83 and 121(3).
The Bolivarian Constitution of 1999 though has incorporated all of the legal concepts and benefits of the Convention of the Law of the Sea to the Venezuelan Constitution without agreeing or being bound by the articles that it deems are not in the best interest of Venezuela.
In this article, the Bolivarian Constitution of 1999 also incorporated references to the rights of Venezuela over the extraterrestrial space. At this point in time the only practical application of these rights would be the allocation of the orbital slots in what is known as the Clarke geostationary orbit where most communication satellites are located. These slots are allocated by the ITU (International Telecommunications Union) of which Venezuela is a member. By including these references though Venezuela has become a pioneer in the pursuit for a United Nations body of legislation that deals with the increasingly controversial use of space.
… “The President of the Republic may decree Special Military Regions for strategic and defense ends, anywhere in the territory and other geographical spaces of the Republic. He may as well decree Special Authorities in situations of contingency, natural disasters, etc.”
Comment 2: The above mentioned two sentences have been added to the original article 11 of the Bolivarian Constitution of 1999 and is one of the modifications Venezuelans are being asked to vote on. These two sentences though are dangerous, wrong and preposterous in so many ways that I will try my best to be as didactic as possible to explain them.
The last sentence of this paragraph allows the President to decree Special Authorities in “situations of contingency” (“situaciones de contingencia”). The RAE (Royal Spanish Academy) definition of the word “contingencia” (contingency) is: “Posibilidad de que algo suceda o no suceda” (Possibility that something happens or not happens), “Cosa que puede suceder o no suceder” (Thing that might or might not happen). This sentence therefore allows the President to decree Special Authorities for basically any and all reasons; be them real or imagined. The only condition is that they may or may not happen.
Just in case there is any doubt about the unlimited power to appoint Special Authorities in any situation whatsoever the sentence goes on and reinforces this concept by indicating that these authorities can also be appointed for “etc” reasons.
The RAE definition of the word “etc” is: “expr. U. para sustituir el resto de una exposición o enumeración que se sobreentiende o que no interesa expresar. Se emplea generalmente en la abreviatura etc.” (to substitute the rest of an exposition or enumeration that is assumed to be understood or that there is no interest in expressing. Generally It is used in the abbreviation etc.)
.
While Constitutions are expected to be precise and specific it is a fact that even the best written constitutions are sometimes general and even vague. A constitution though can not be “undetermined” and give powers to a President to be used in “undetermined” situations and in “undetermined” ways.
It should be noted that the intention of this sentence is not to provide the President with special powers in case of civil unrest, natural disaster or other emergency situations. The Bolivarian Constitution of 1999 in Title VIII, Chapter 2 articles 337, 338 and 339 already provides special powers to the President to act in these kind of circumstances and regulates the term and scope of those powers.
Comment 3: The dangers this sentence poses to the Venezuelan democracy though go far beyond the semantic implications herein mentioned.
Nowhere, either in the text of the Bolivarian Constitution of 1999 or the modifications being proposed today, is there any reference whatsoever to the term “Autoridades Especiales”. There is therefore no reference as to the power that could be granted to these Special Authorities.
It could be inferred though that since they are appointed in “situations of contingency” (whatever that means) they would have more power than the elected officials and/or constitutionally appointed authorities who would be deemed as incapable of handling such situations. Power, that would emanate directly from the President and that is not limited and/or even regulated by the Constitution.
There is also absolutely no reference anywhere as to the term for which these Special Authorities would be appointed, their salary, where their budget will come from, who are they accountable to, what is their responsibility, what is the scope of their powers and/or what qualifications would be needed to be appointed as such. Under the proposed text anyone could be appointed a Special Authority with absolute power even if the person has a police and/or judicial record and, what is most intriguing, even if they are foreigners.
For all intents and purposes, this last sentence of the proposed modification to article 11 renders the rest of the Constitution useless. It matters little what the Constitution says, because the President can appoint Special Authorities with powers over and above the power of any elected authority and/or constitutionally appointed government official. The President could appoint Special Legal, Economic, Constitutional, Social, Health, Education and even Religious Authorities to oversee and even decide over all aspects of government and/or the branches of power.
Just in case there is any doubt though, the first sentence of the paragraph being proposed in the amendment of article 11 provides an air tight alibi for the President to overcome any legal, jurisprudent and/or constitutional arguments against the use of this power.
Comment 4: In the first sentence of this paragraph the President is granted the power to decree Special Military Regions for “strategic” and defense purposes. Here again language is used loosely to provide the President with an overwhelming power that goes far beyond the Constitution and certainly common sense.
According to the RAE, the definition of “estrategico” (strategic) is the following: “De importancia decisiva para el desarrollo de algo” (Of decisive importance for the development of something). This sentence therefore allows the President to decree a Special Military Region for the only purpose of accomplishing something; whatever that might be.
Special security areas or buffer zones in and around military and valuable infrastructure installations are perfectly normal in every country except for the fact that in this case the intended purpose of the text is not to allow the President to create such security zones but instead to allow the President to be able to create Special Military Regions over vast parts and even the whole Venezuelan territory.
The word “regions” is only mentioned 4 times in the text of the Bolivarian Constitution of 1999 and, except for the text proposed to modify article 11 and a reference to sea regions in the text of article 67, none whatsoever in the text of the other proposed amendments. In every case, except in one, the term it is used as an adjective and in a general way. This should not come as a surprise since “regions” are not part of the political division of Venezuela.
In one case though, the word “region” is used to identify and describe specific territories. By doing so, the Constitution creates precedence as to what a “region” is understood to be and what a Special Military Region would or could encompass.
Article seven in the Temporary Provisions of the Bolivarian Constitution of 1999 creates three regions that encompass all of the Venezuelan territory. Each region includes two or more States and they are created for the purpose of electing native representatives to the National Assembly.
The definition of “regions” is therefore set by the same Constitution in these articles and by precedence they do apply to the definition of Special Military Regions.
As for the administration of these regions, there isn’t a single reference in the Constitution or the modifications being proposed as to how or who would administer these Special Military Regions or, for that matter, what are the rights of the people who live in these regions. In Title V, Chapter II, Articles 236 (5) of the Bolivarian Constitution of 1999 though, the President is granted absolute authority over the National Armed Forces and appointed Commander in Chief. He therefore is the supreme authority of the armed forces and hence the supreme authority over the territories under military control.
Having absolute power over “Special Military Regions” and the Constitutional unlimited power to appoint “Special Authorities” for whatever reason, gives the President absolute power over the Venezuelan territory and the Venezuelan people.
It should be noted that under the proposed modification to the Constitution Special Military Regions do not need to be occupied by the military. Further, the elected authorities and officials within the Special Military Regions may continue to act as such but subject to the decisions of their respective “Special Authority”.
Conclusion: It matters little what the other proposed modifications to the Bolivarian Constitution of 1999 may be; it also matters little what the rest of the Bolivarian Constitution of 1999 may say because, with these two sentences, the President is granted absolute power over everything and everyone in Venezuela while rendering the rest of the Constitution mute.
The implications of the modifications introduced to article 11 are not a matter of ideology or even political, economic or social beliefs. For all intents and purposes you can be a socialist, communist or extreme capitalist and still this modification would be absolutely wrong.
All the other modifications to the Bolivarian Constitution of 1999 that are being proposed have to do with the business and structure of government. In article 11 though Venezuelans are being asked to surrender all their rights to the Venezuelan land and their own freedom by giving absolute power over them to the President; whomever that might be.
While writing these comments I can not help but remember the words of a song, “Solamente Una Vez” (Only one time), composed by Agustin Lara while working in Buenos Aires with some close friends. Most youngsters will not know who Agustin Lara was but they will most likely remember the song since it was part of a Luis Miguel CD (“Segundo Romance”).
The thirdt verse of that song reads; “Una vez nada más se entrega el alma, con la dulce y total renunciación.” (Only once you surrender your soul with the sweetness of total resignation).
Most people believe this song was composed by Agustin Lara to a woman he met in Buenos Aires. The truth though is that this song was composed to a man; his old and dear friend Jose Mojica, when Agustin Lara learned that he had decided to become a Catholic priest even though he was over 40 years old. This song is not about the love of a man for a woman but about the ultimate sweet sacrifice you can do for God; to surrender your soul.
By asking to vote yes for the amendment of article 11 of the Bolivarian Constitution of 1999 Venezuelans are not being asked to choose a political system and/or model of government but indeed they are being asked to surrender their soul and with it, their dignity, their history, their territory and their expectations; a sacrifice that is only reserved for God.
Mousqueton
venezuela.constitution.trap
Spanish language version of this post here.
Published originally here.
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