ENSURING A “SAFE” LEGAL SYSTEM [1]
May 22, 2003

The main problem for Chavez now is the upcoming recall election that can be legally required as of August 19. Chavez knows that no matter what legal trick he tries, the opposition will be able to raise enough signatures to force the election, and that the outcome right now is not rosy at all for him. Since the international opinion is still courted by the administration, ways that appear legal must be implemented to slow down the electoral process, denature it, and perhaps even stop it.

The economic crisis that we now suffer is not seen as totally Chavez fault according to polls, but these same polls also reflect clearly that Chavez is not considered able to take Venezuela out of the crisis. Since December Chavez numbers according to issues float between a 20 and a 35%. Even at 35% it is still a daunting task to win a recall election. Even though chavista paid polls claim 40 to 50% the attitude of public officials speak more of packing their office rather than renovating them. Time is thus seen as too short to bring back Chavez in favor.

One of the strategies of the Chavez administration is to try to use the thin, but hard core it seems, majority left in the National Assembly to pass a few laws that could come in handy if need be. The first law that needs to be passed is one that will limit the access of the opposition to the media. Then a law to modify the high court must be passed to deal with electoral issues. And then a series of laws will tend to limit what people can indeed do to protest government abuse and call for referendums. Very logical and simple if one has the outlook of democracy that a leftist military has.

LEY DE RESPONSABILIDAD SOCIAL EN RADIO Y TELEVISIÓN

This law destined to establish the responsibilities of the media in transmitting news and setting their programs is in due form a “gag rule” law (Ley Mordaza). The Human Rights Watch has taken the trouble to issue a devastating report on the attacks to the freedom of the press in Venezuela, signaling this law as an absurdity.

I post next excerpts the main criticism section from to the law project.

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IV. PROBLEMS WITH THE NEW MEDIA BILL

On January 23, 2003, the Chávez government tabled in the National Assembly a new bill regulating television and radio [snip] "Law on Social Responsibility in Radio and Television" enlarges the state's role in the control of broadcast content, and contains several provisions that infringe international freedom of expression standards. [snip]

The primary justification advanced by the government for the new legislation was that current television output exposes children to an unacceptable amount of violence and fails to respect their special needs. Government officials objected strongly to scenes of violence in opposition demonstrations that were replayed repeatedly during peak viewing hours. [snip]

If these norms were interpreted literally, stations could be penalized for showing news coverage of wars and internal conflicts before 8:00 p.m., making it necessary for them to present a sanitized version of the news during the day. Many films and soap operas, which contain erotic scenes, fights, family arguments, swearing, and the like, also could not be shown during the day. Children's cartoons could even be questioned for their violent content. [snip]

Under the draft law, television companies, advertisers, and broadcasters could be punished for transmitting:
contents that promote, defend or incite lack of respect toward legitimate institutions and authorities, like the deputies of the National Assembly, the president of the Republic, the vice-president of the republic, ministers, magistrates of the Supreme Tribunal of Justice, the attorney general, the public advocate, the comptroller general of the republic, the senior authorities of the National Electoral Council and the armed [snip]

Seven infractions contained in the draft law are considered so serious that a culpable station can be immediately suspended for up to forty-eight hours. [snip]

As already noted above, the "incite, advocate, or promote" language is extremely broad and could include speech that is protected under international standards. Under the new law, stations could easily be taken off the air temporarily for broadcasting political messages like those advocating mass protests in December 2002 and January 2003. The norms on advocacy of war might, for example, inhibit discussion of the Iraq invasion, or the war against terrorism. Again, the authorities responsible for enforcing the law might use these overbroad categories to restrict the public debate. Given the ambiguity about their scope, managers and editors are likely to exercise self-censorship to avoid sanctions. [snip]

The draft law stipulates that a station that has been temporarily suspended twice during the last three years will have its broadcasting license revoked. [snip]

Under the new media law a National Institute of Radio and Television would be created. The institute's executive council would be responsible for enforcing the new content regulations, and imposing sanctions. (The minister of infrastructure would still retain the powers he currently enjoys to suspend or revoke broadcasting licenses). The composition of the proposed eleven-person executive council is heavily weighted toward the executive and legislative branches. It has no representatives from the broadcasting industry, and there are insufficient safeguards to preserve its independence from the government of the day. [snip]

The president of the institute's eleven-person executive council would be appointed by the president of the Republic for a three-year period. Four members of the council are to be "representatives" of the ministries of education, health, communication and information, and of CONATEL. Three members will be legislators from the National Assembly. Two of the remaining three members will be representatives of viewers' committees, and one will be a representative of independent national production companies.

Thus, five out of the council's eleven members will be officials from the executive branch and three will be politicians from the legislature. No expertise or experience in the media industry is required for appointment. Media organizations, universities, and religious organizations will have no representation on the council.

There are no safeguards in the proposed legislation to minimize the risk of political interference. [snip] The lack of safeguards against political interference in the governing body is especially troubling given the complexity of the legislation it is supposed to enforce, and the imprecision of the numerous regulations with which companies, broadcasters and advertisers are required to comply.

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The above is pretty much self explanatory.

The only thing I need to add is that the original project had 150 + articles and it was reduced to 30 + articles by compacting these articles and removing some of the very most controversial ones. The reason is to avoid a filibuster since every representative can sign out for debate for each article. The government cannot afford to be mired for weeks in a controversial debate when all eyes are on it. As I write these lines the battle goes on in the National assembly and if the majority manages to vote it, the opposition will walk right there to the High Court. Which brings to the next subject.

MODIFICATION OF THE TRIBUNAL SUPREMO DE JUSTICIA (TSJ)

The TSJ or high court was composed by 20 judges in the 1999 constitution. Unfortunately the initial nominations did not turn out quite the way Chavez would have liked them to be. Now he has a solid 8 votes in it and the opposition a solid 6 votes. But the remaining 6 votes tend to go mostly to Chavez and are not real swing votes the way one understands it in the US. The result is that Chavez , even if he gets 90% of the other rulings, has lost a couple of important rulings and he cannot deal with that.

Since the definitive law on the organization of the TSJ or High Court of the country was not completed after the new 1999 constitution, the government has decided that it should be seen to it right now. The simplest way is to say that there is too much work and that the number of judges should be increased. To make it not look too crass, and to make sure that if “errors” in nomination occurs one does not get saddled by unwanted justices, the new scheme would provide for a variable number of judges. That is, the National Assembly could increase or decrease the numbers of judges depending on the workload. The highest number being 32 and the lowest 24. One wonders sometimes who comes up with these bright ideas…

The urgency is due of course to the incoming electoral process and all the law suites that are in the horizon, including boatloads of corruption cases that one day will eventually reach the TSJ. Not to mention that some authorities must be named by 2/3 of the National assembly and if this one fails to reach that magical number the TSJ gets to appoint “provisionally” the title holders until the Assembly puts its act together. That transient title holder of course has all the same powers.

OTHER PROJECTS

Once these two biggies are settled it would be easier to bring in other projects. They are still “in development” but enough is known already to make one wonder about our future. One is to bring all the police departments under a single umbrella organization depending directly from the central government. Goodbye State and Municipal policies. Another one, LEY DE PARTICIPACION CIUDADANA (Law For Citizen Participation), will regulate among other things how people can ask for referendums to eliminate laws, modify them, or request recall elections. The intention being, of course, to make it as difficult as possible. It will also regulate some of the figures in the new constitution as to the organization of NGO and other social structures that supposedly have a right to question elected officials activities.

CONCLUSION

All these projects share one thing: they open the different powers to heavy interference form the executive and legislative branches. If all come to pass, that will be the end of the separation of powers, and the possible end of federalist decentralized aspects of the Venezuelan administration. All will point to the tenant of Miraflores Palace who has expressed his desire to remain until 2021. Yes, 2021, there is no typo.

[1] This is the second installment of a series of articles on the Chavez counter-offensive.