Friday, November 09, 2007

Chavez New Constitution: Transitional Statutory Provisions

Introduction: Katy of Caracas Chronicles is another writer that does not need an introduction. Instead I am using this opportunity to announce that the constitutional project shifts gear as it needs to include at least some of the “sobrevenidos” (articles added at a few midnights reunions of the National Assembly). The 33 articles of Chavez might not be all covered but many others will be includes while necessary modifications to previous comments will be done if necessary as the new draft is finally published.

However there is a fascinating part, perhaps even more important than many of the 69 articles, and that is the “transitional provisions” of the text, those rules that will define how Venezuela shifts from democracy to authoritarian socialism (and who knows where else). To inaugurate this second phase of the Constitutional Blog I could not think of anyone better than Katy to deal with these “transitions” that are so revealing of what hides behind the Chavez naked power grab. I hope that you will be as impressed as I was.

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The transition to the Socialist Constitution

By Katy (who can be contacted at Caracas Chronicles)

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.


-The end-

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