Tuesday, September 18, 2007

Chavez new Constitution: 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 third 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.


Spanish language version of this post at: [to be announced]

-The end-

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