Monday, June 02, 2008

Katy; you are the one who is wrong

This is a very unusual post and I had to think before going ahead with it.

There has been a significant debate in the opposition blogosphere based on a translation of an OpEd of Father Ugalde that I posted here. The debate for some reason moved to Miguel and Katy's respective blogs, probably because I have comment moderation and when a topic is burning people want instant gratification. But the debate is so serious that I feel obliged to publish this response sent to me by Mousqueton, a long time reader and an exquisitely through analyst of some of the legal stuff that was involved last year with the discussion of the Constitutional reform that failed. People just need to visit these excellent articles here.

Now, I know Katy and I consider myself a friend of her. And I am also very aware of the organization work that she participates here in Venezuela, sacrificing part of her rare vacations, which means that I understand her sensibility to some of the stuff that Father Ugalde wrote. Thus my initial hesitation at accepting this very unusual request from a reader. But Mousqueton has the credentials, the debate is important and I am sure that Katy will be able to defend herself very well. Also by publishing it here I avoid Katy and Mousqueton the embarrassment of deciding whether this criticism should be published at Caracas Chronicles or not. The following post and the title of post are from Mousqueton.

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Katy; you are the one who is wrong

I have read your post in Caracas Chronicles with regard to the recently published article by Father Luis Ugalde. I must say that, like you, I am also disappointed but not at the concepts expressed by father Ugalde but at the lack of thoroughness of your legal analysis.

Indeed article # 39 of the Bolivarian Constitution of 1999 reads as follow:

“Article 39: Venezuelans who are not subject to political disablement or civil interdiction, and meet the age requirements provided for in this Constitution, can exercise citizenship and therefore are entitled to political rights and duties in accordance to this Constitution.”

What is wrong though is that based on this article and without further research you conclude and declare in your posting that “Right off the bat, the Constitution is saying that political rights and obligations are inherent to all citizens that have not been disqualified for some reason.”

Further, you go ahead and give credit to articles 102 though 108 of the General Comptrollers Law to conclude that there is a reasonable doubt about the constitutionality or not of the Russian decision.

The condition of “Political Disablement” and “Civil Interdiction” are not political terms subject to interpretation. They are legal terms and are expressly defined in the Venezuelan Penal Code as well as the Venezuelan Civil Code.

Title X, Chapter 1 (Of the Interdiction), Articles 393 through 407 of the Venezuelan Civil Code indicates that adults and emancipated minors can be subject to interdiction by reason of intellectual defect. This is called Judicial Interdiction and it is a judicial process which is explained and ruled throughout those articles. Article 408 also acknowledges what is known as Legal or Civil Interdiction which is a consequence of being subject to a penal sentence.

“Civil Interdiction” and “Political Disablement” are both typified penalties of the Venezuelan Penal Code and are thoroughly explained under Title II, Articles 8 through 36.

Article 10 defines both “Civil Interdiction” and “Political Disablement” as non corporeal penalties. Article 11 indicates that penalties can also be divided in “principal” and “accessorial” were principal penalties are punishment for the crime and accessorial penalties are additional penalties brought up by the law.

Article 13 indicates that both “Civil Interdiction” and “Political Disablement” are accessorial penalties to the principal sentence of “Presidium” (forced labor). Article 16 in turn indicates that “Political Disablement” is an accessorial penalty to the principal sentence of “Prison” (confinement without hard labor).

Article 23 indicates that the penalty of “Civil Interdiction” can not be imposed as a principal sentence but exclusively as an accessorial sentence to the penalty of “Presidium”. Article 24 indicates as well that the penalty of “Political Disablement” can not be imposed as a principal sentence but exclusively as an accessorial sentence to the penalties of “Presidium” and “Prison”.

I hope I am not going too fast for you and that by now you have realized that both the penalties of “Presidium” and “Prison” can only be sanctioned by a judge, in a court of law and after a trial. Also, I hope you have realized by now that no one can be sentenced to ”Civil Interdiction” and/or “Political Disablement” unless they have been previously sentenced to “Presidium” or “Prison”.

That is why article 42 of the Bolivarian Constitution reinstates that the “political rights can be suspended only by final judicial decision in the cases provided by law.” Not any law or even the constitution but the Venezuelan Penal and Civil Codes. That is also why it mentions “final judicial decision” because under the Venezuelan Civil Code judges can sanction provisional judicial interdiction while hearing the case.

The Bolivarian Constitution indicates other cases in which political rights are partially curtailed but it is very careful not to use the typified legal terms “Political Disablement” and/or “Civil Interdiction”.

Article # 65 of the Bolivarian Constitution indicates that “Persons who have been convicted of crimes committed while holding office or other offenses against public property, shall be ineligible to run for any office filled by popular vote…”

The Constitution is clear here in stating that in order for this ineligibility to apply the person has to be “convicted” and this can only be done by a judge, in a court of law and after a trial. It is interesting to note that under this constitutional article the ineligibility applies if the crime was committed while holding office (elected office) even if the person is sentenced by a court of law to a lighter penalty than “Presidium” or “Prison” which are the only two penalties that bring about mandatory “Political Disablement” and/or “Civil Interdiction”.

So, we are left only with the provisions of the so called Organic Law of the Comptroller's Office and your wrong interpretation of articles 102 through 108 of this organic law.

According to law, the Comptroller only has competency to hear administrative cases within the “public administration”. He can only apply penalties for violations to the Code of Administrative Procedures to those who exercise a public function. This is, to those who work as civil servants or employees in the public administration.

He can impose penalties such as fines, temporary suspension from the job without pay and destitution from the position held in the public administration. He can also ban (inhabilitar) a public servant from holding a public administration position or public function job for up to 15 years (article 105 of the Organic Law of the Comptrollers Office) but he can certainly not curtail, limit and/or strip away their constitutional rights.

The lack of power of the comptroller to hear and/or act on matters that are beyond the administrative and tributary levels is clearly stated in Title V, Chapter IV, Section Four, Article 289, Item 4 of the Bolivarian Constitution which states that it is a function of the National Comptroller “To call on the General Prosecutor of the Republic to file the appropriate legal actions with regard to in actions and crimes committed against public patrimony, of which becomes aware in the course of performing his official functions.” Further this function is reinstated in article 85 of the Organic Law of the Comptroller's Office.

Elective positions are not “public function” positions and hence the Comptroller has absolutely no power to ban any citizen including public servants from exercising their constitutional right to run for any elective position. He can ban them from working for the government (“public function”) but he can not ban them from exercising their constitutional rights. Only the courts of law can do that.

The Bolivarian Constitution in Title IV, Chapter 1, Section Third (of the public function), Articles 144 through 149 clearly explains what the “public function” is and there is not a single word and/or reference in any of the articles in the sense that elective positions are in any way part of the “public function”. This, rightly so I must add, because elected officials are only subject to the judicial power and the people.

What the General Comptroller has done by banning 400 citizens from running for elective office is without a single shred of doubt or question a gross, illegal and unconstitutional abuse and deviation of power for which he is personally liable under Title IV, Chapter I, section One, article 139 of the Bolivarian Constitution.

Father Ugalde’s statement in this sense is not only absolutely right but further, completely uncontroversial and non questionable. He is also right when he says that the political parties are doing nothing about it.

I believe Katy, that you owe an apology to Father Ugalde.

Best regards; Mousqueton

-The end-

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