Article 251
The Council of State is the highest organization for consulting by the State and the National Government. It will exert its attribution with functional autonomy. Its opinions or decisions will not be binding. Its attributions are 1) Emit an opinion on the matter under consultation 2) Watch over the fulfillment of the constitution and the legal framework 3) Pronounce decisions over the matters that are submitted to its consideration and 4) Recommend policies of national interests on those matters that are of special transcendence.
An organic law will be able to determine other functions and/or other competencies.
Even though article 251 and 252 are linked I did discuss article 252 first for two reasons. It was an easy article to offer as a clear exhibit of Chavez wanting to hold center stage alone and everywhere, to the point of reducing the role of the vice-president to very little even though he can remove and name a vice-president at will. But also because for some unaccountable reason, the electronic highlights that I had made on my PDF “refoma” text were lost on article 251 and I did not realize that it was also modified when I later went on to discuss article 252. In the end it did not matter at all for the discussion of article 252 but it allows me to go into a new point: how the “reforma” manages under a certain cover of superficiality and vacuity to prepare very carefully for future situations where the tiniest of challenge to Chavez could arise, something that I might not have highlighted as well if I had discussed both articles simultaneously.
Article 251 is in fact significantly modified in words though not apparently that much in scope. This is the first hint, of course, that this change must be hiding something.
The original version set a gathering of notables under the direction of the vice president. Nothing much was specified. The original article read: it will be on its capacity to recommend policies of national interest. But now we have 4 items for the Council of State! Fascinating when we think that the 1999 article has yet to be applied! That the council has yet to be named! If we read that in article 252 the council only seats when convoked by the president to discuss items proposed by the president, we do wonder about that need to be specific in limiting the scope of the council. Perhaps chavismo wanted to remove this article altogether and did not dare to? Or perhaps chavismo is planning to use this council to announce or to deal with unpopular policies that Chavez might not want to announce alone?
There is a curious item that goes with that logic of using this Council to deal with the consequences of the new constitution. The original article said that the Council of State could be used by the “Administración Pública”, that is, civil service or any branch of the public administration could address directly the Council. That could be the government itself, a state legislature or the sewers administration. Now only the president and the NATIONAL GOVERNEMENT will be able to use the services of this council. Why?
There is in the also modified article 141 an important change: the original text read that the Public Administration was there to serve the citizens. This has been erased and now in the new 141 version the public administration serves the government. Obviously there will be some scheme that will have to oversee the public administration to make sure this one is at the service of the state (and henceforth of the all powerful president). Starting with the vote on this ill called constitutional reform, the public administration branches will lose the ability to consult the Council of State in case they enter into some form of conflict with another administrative branch or, the deity forbids, a direct dependence of the government. Only the government (that is, Chavez direct appointees) will be allowed to start such an administrative inquiry that will rule, we can be sure of that, in favor of the government most of the time. And in the rarest of cases that the State Council might go against something that Chavez wants, well, the decisions are not binding anyway. The beauty of the scheme is that the 5 powers of the state will share the burden of the decision whereas that decision will only benefit the executive power.
There is a last little detail which might not be of much importance but could become very much so. In the original 251 there was just mention of a special law to establish the function and competences of the State Council. In the “reformed article” the law will now require to be “organica”. In Venezuelan law that means that the law must be voted by 2/3 of the National Assembly, and can only be modified by a 2/3 vote. Why such a change? The only explanation we can advance at this time is that the Chavez administration indeed has a plan for the Council of State and that it wants this plan to be iron tight to be able to use it for as long as it needs, just in case a new National Assembly could arise (this 251 article could even allow Chavez to use the Council of State to control even the functioning of the National Assembly!)
Or perhaps the aim is elsewhere: the end of decentralization. Any conflict between a non chavista town hall or state house with the chavista central administration could end up in the docket of the Council of State, if this one is ever installed. Now, the parts of the coming system that Chavez is creating and that he is less likely to control tightly are the small town halls and the states where local electoral surprises could still happen (even with the application of article 11). When these ones will enter into conflict with the central administration, something certain to happen as chavismo has clearly stated its desire to end decentralization, to curtail local powers, to “have direct contact with thousands of communes”, town halls and states will have one less recourse to go to if they want to seek redress from the central state. In fact, the revamped Council of State could be used directly against them as a more expedient way than judicial fiat or legislative process. And there will not be a voice from the provinces to defend them since article 252 takes care of that.
Published originally here.
Spanish version here.
-The end-
Sep 20, 2007
Article 251 (Daniel D)
Sep 17, 2007
Article 252 (Daniel D)
The council of state is presided by the President of the Republic and it is also includes the President of the National Assembly, the President of the TSJ [high court], the President of the Citizen Power, the President of the Electoral Council and the people that the president of the republic deems necessary to summon to deal with the matter at hand in the consultation.
According to article 251 the council of State was a gathering of certain figures who were supposed to discuss and think about some project of special importance for the nation (Constitutional changes? Decentralization schemes?). Its origin is probably inspired from French constitutional tradition where in addition to propose administrative and constitutional matters to the government, the "Conseil d'Etat" also serves as a chamber which verifies the legality and constitutionality of laws before they are published. It is also an administrative tribunal where administration infighting as well as problems between the pubic service and the public can be settled before they go to judicial trials. The 1999 constitution created this novel figure in Venezuela but with much, much less power than what its inspiration might have been (after all there is a TSJ which covers some of the legal functions of the French Conseil). The Venezuelan council seems to have been intended as a simple gathering of notables to deal with matters of a certain importance that the president could not bother dealing with. As a matter of fact it was never assembled that I know of, and the law that was supposed to describe its function and organization in detail was never passed!
What is noteworthy in this text is the change from the old article. Then the council was presided by the vice president of the republic, 5 folks named by the president, one representative of the national assembly, one representative from the TSJ and one governor named by the other ones. With this composition that council was designed to give something else to do to the vice president of Venezuela, a consultative body who would discuss matters of national importance. Now, in the new structure the council will be completely controlled by the president who will call it as he needs, probably never. Observe that the lone figure of the governor is now excluded while for some inexplicable reason the electoral council now seats in the council.
It seems that the intended purpose for that council will be that of a registration chamber of sorts. Besides making the vice president a lesser function (in addition to the creation of several vice-presidencies it is now excluded of the body it could have directed) the president of the republic, the executive branch of power, will have an opportunity to demonstrate that it is the superior power of the five recognized powers in the 1999 constitution. That council of state will include all the powers but will be gathered only at the suffering of the president, and presided by this one. And the elected governors will not be good enough to send a single voice, lowering their rank even further. The symbol will be strong.
Since it is difficult to conceive that the National Assembly (which names the other powers) will change hands in the foreseeable future, we can safely gather that this council will never be called, unless Chavez decides at some point to create some pageantry. But just in case, Chavez covered his back from such a council putative initiative since in the previous version the vice president could have theoretically called a meeting without notifying the president to examine questions that the president would not like to examine (for example the mental incompetence of a sitting president?). And that, simply, is unacceptable in the new power scheme of Venezuela.
Published originally here.
Spanish version here.
