Monday, September 24, 2007

Chavez new constitution: article 115 (Pedro B.)

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

-The end-

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