Coordinadora Internacional Venezolana

P.O. Box 7655,

Arlington, Virginia  22207-0655

USA

Tel: (703) 256-0350/ Fax: (703) 535-7998

E-Mail: civw@comcast.net.

 

May 15 2002

 

Organization of American States

Permanent Council of the Organization

Washington, D.C.

 

Attn: Ambassador Margarita Escobar

 

 

At this time we would like to extend to you a greeting on behalf of our organization.

 

By virtue of the Resolution issued by the General Assembly on April 18, 2002 on the Venezuelan democratic crises, this Council was instructed to present a global report on the Venezuela situation for the ordinary period of sessions, we would very much appreciate if we could meet with you at your convenience, in order to share with you the view point of Venezuelan Organized Civil Society.

 

In any event, we want to emphasize certain facts and to provide certain analysis and then request some petitions:

 

I. Facts

 

Constitutional advances and setbacks.

 In December 1998 the Venezuelan people elected Hugo Chávez as President of Venezuela, under the provisions of the Constitution of 1961. On February 2, 1999 President Chávez called a referendum so that the people could voice their opinion on calling  a National Constituent Assembly. The calling of Constituent Assemblies was not contemplated nor regulated by the Constitution in place at that time. However, in spite of lacking a legal basis, it was called on the aforementioned date.

 

In July 1999 elections were held for the members of the National Constituent Assembly. The result was an Assembly of 131 members, in which only six members were representatives of the opposition.

 

Although the mandate of this Assembly, of questionable legality, was to write a new constitution, it also, dissolved the legitimate and legally elected Congress of the Republic that was chosen in 1998. Likewise, this Assembly extended its powers, embracing such topics as approval of the budget, approval of laws, controlling the judicial branch, and appointing members of public powers.

 

In December 1999 a referendum was carried out to approve the Constitution. This was approved but with an abstention of 54%. In spite of this, a new constitution with 350 articles was adopted. Among its novelties are: (i) it modified the name to the country; (ii) it concentrated the political power in the President of the Republic including establishing the position of Vice President, a non-elected position appointed by the President, (iii) it required that communication media had the obligation of disclosing truthful information; (iv) it extended the presidential period to six years with the possibility of immediate reelection and (v) it weakened federal entities.

 

With regard to the content of this Constitution, the Inter-American Commission on Human Rights of the OAS has recently indicated:

 

“22. Without prejudging these significant constitutional advancements, the Commission noted that the constitutional text also includes various elements which can make it difficult to have effective vigilance of the Rule of Law. Among some of these are mandates requiring a prejudgment of merit for high ranking officials of the Armed Forces (Article 266, paragraph 3) before an investigation is started on a criminal charge, and the stipulation of the Controller General of the National Armed Forces without clarification of his relationship with the Controller General of the republic (article 291), and of the participation of the National Electoral Commission in labor union elections. Article 58, which states of the right of timely, truthful and impartiality of information, has been singled out for criticism by this Commission. Likewise, Article 203 includes the concept of enabling laws and permits the possibility of legislative powers to be delegated to the President of the Republic, without establishing time limits for this delegation. Because of this, as it all ready has occurred, it permits the creation of laws by Executive Decree, and not through laws established by the National Assembly, in contradiction to what is required by the American Convention on Human Rights. Likewise the Constitution has suppressed some important constitutional mandates that is important to maintain the Rule of Law, such as parliamentary control over military rank advancement, the mandate that establishes the non-deliberate and apolitical character of the armed forces, and the prohibition of military authority to simultaneously exercise authority in a civilian position.

 

23. The constitutional advances and setbacks incorporated in the new constitution is reflected in the reality of everyday life in Venezuela. Existing constitutional mechanisms do not allow for important checks and balances to control the exercise of public power, and guarantee vigilance of human rights. As an example, the principal legislative faculties were derived from a law emitted by the Executive branch, which does not establish definitive limits in the content of the implementation of the same. (Annex. Preliminary Observations of the Inter-American Commission on Human Rights finalizing a visit to the Bolivarian Republic of Venezuela, Caracas, May 10, 2002).”

 

Not withstanding the above-mentioned, supposed printing errors of this constitution has required modification of several articles of the same constitution. For this reason, to date, there exists at least four versions of the Constitution, and nobody knows which one is the official version. This aspect was emphasized  by the ICHR when it pointed out:

 

The lack of full vigilance to the Constitution, combined with the variety of official constitutional texts, creates judicial insecurity making it difficult to fully consolidate the Rule of Law. (IDEM)

 

Corruption.

In June 2000 the President announced the launching of the Plan Bolívar, which consists on using the military forces of the country for the construction of roads, repair of public buildings and administration of popular markets, among other things. To date, the plan has been of little effectiveness, instead, it has become an enormous source of corruption. Numerous cases of graft motivated by the Plan Bolívar have been denounced before the media, public comptroller entities and before the tribunals, nevertheless, there exist doubts about the impartiality of the last two entities. To date, no rulings has been announced.

 

Questionable appointments of the public power.

 In July of 2000 general elections were called to re-legitimize all public powers. The President was re-elected to his first presidential term under the new constitution. The National Assembly, new name used to identify the Legislative branch, was also elected as were regional powers (State Governors and Mayors). The party of the Government maintained substantial advantages in all these instances.

 

Subsequently the Supreme Judicial Tribunal was designated by the National Assembly, without complying with procedures and requirements established in the Constitution. The final composition of this Tribunal was determined for political reasons, which took place by appointing  individuals who for the most part were allies of the President. The appointment of such magistrates had specific purposes, among these issuing a ruling that indicated that the presidential term under the new constitution started again, although the President had all ready been exercising executive functions for more than two years. To this respect, the same Inter-American Commission on Human Rights of the OAS points out:

 

25. The Commission received various complaints questioning the legitimacy of the selection process of the top tier officials of the Judicial Branch, the Citizen Defender, the Public Ministry, and the Controller General of the Republic. As a consequence of not following constitutional processes for the selection of said officials, functionaries have been designated for these positions whereby they do not have the necessary independence required .

 

26. It was brought to the attention of the Commission that the Constitution of the Bolivarian republic that was approved in 1999 established a “Committee for Judicial Appointments” and a “Committee for the Evaluation of Citizen Branch Appointments,” to be integrated by different sectors of society. The actual judges of the Supreme Tribunal of Justice, and the Public Defender, the Fiscal General of the Nation, and the Controller General of the Republic, where never nominated by said committees as established in the Constitution, but based on a law dictated by the National Assembly before the Constitution was approved. titled “Special Law for the Ratification or Designations of Functionaries and Functionaries of the Citizen Branch, and Judges, and Judges of the Supreme Judicial Tribunal” for the first constitutional period. The constitutional reforms introduced for the selection of these authorities were never used in this case. These norms were precisely what was intended to limit improper influences, assure independence and impartiality, and permit diverse voices of society to be listen to in the selection of these high authorities.

 

27. The Commission likewise could verify questionable exercise of judicial power that was not independent or impartial. On several occasions the Supreme Judicial Tribunal made decisions that were for the exclusive benefit of the Executive Branch. Among others, is mentioned the questionable decisions concerning the “Special Law for the Ratification or Designations of Functionaries and Functionaries of the Citizen Branch, and Judges, and Judges of the Supreme Judicial Tribunal,” and the decision concerning the duration of the presidential term.

 

The weakening of the judicial branch is not limited to the Supreme Judicial Tribunal. Other units of the judicial branch are also affected. More than 60% of the judges are named under provisional character. This situation is creating an atmosphere that promotes impunity since it weakens the stability, the independence and the autonomy of this crucial branch of the State. This causes a flaw in the timely and appropriate access to the judicial system on the part of the citizens thus contributing to the continuous deterioration of the Rule of law in Venezuela. The same Inter-American Commission on Human Rights of the OAS points out:

 

8. Another aspect concerning the autonomy and independence of the judicial branch is the provisional character of judges. The ICHR recognizes that that the problem of improvisation of judicial appointments in Venezuela has a long history. According to information provided to the ICHR during the visit, it is estimated that between 60% to 90% of judges have provisional appointments, which in the consideration of the ICHR, affects the stability, independence and autonomy which needs to occur in the judiciary. The Commission expressed the importance immediately initiating a process in Venezuela, conforming to its internal legislation and international obligations derived from the American Convention, to reverse the provisional appointment of the majority of judges

 

In addition, during the year 2000, members of the Citizen Branch created by the new constitution; that is the Attorney General, the Defender of the People and the Controller were named. Their appointments, as we already have seen, were made on the fringe of what the Constitution establishes, and individuals were appointed to fill these positions who were members of government's party or former-officials. Such is the case of the Attorney General who had been the first Vice-president of the Republic appointed by the President and the previous Vice-president of the National Constituent Assembly, elected on the electoral slates supported by the current President of the Republic.

 

The National Electoral Council, head of the new Electoral Branch, according to the new Constitution, it was named in June of 2000 by the Legislative Committee that substituted the National Constituent Assembly. Such appointments were carried out without complying with the established requirements put into effect by the National Constitution, the one which establish a Committee of Appointments integrated by representatives of civil society. And in several instances members have resigned without having been substituted by the National Assembly. In this sense, the ICHR indicated:

 

50. During their in loco visit, the Commission received numerous observations concerning the composition of the National Electoral Council, head of the electoral branch under the terms of the Constitution. Its members have not been selected by the processes established in the Constitution. The majority of its members, including its President, habrian renunciado without opening the selection process to select a new Council. As is established in the Constitution. This implies that, in practice, the Council is impeded in making decisions in important matters concerning electoral processes of all kinds under its jurisdiction.

 

51. The competent organs of public power that judge the claims relative to transparency and legality of elections need to be endowed with the highest level of impartiality and resolve matters in a just and prompt manner, as the best way to guarantee the effective right to vote and be elected as established in Article 23 of the American Convention. Because of this, the Commission recommends that the issue of complete integration of the definitive National Electoral Council as stipulated in the Constitution be resolved as quickly as possible. (Annex. Preliminary Observations of the Inter-American Commission on Human Rights on finalizing its visit to the Bolivarian republic of Venezuela, Caracas, May 10, 2002).

 

The rights of the workers.

 

On December 3, 2002 President Hugo Chávez Frias called a labor union referendum whose only purpose was removing the union leadership that was not to his liking. To obtain their removal, he made the entire population of the country participate in a union decision, which normally only members of labor unions participate. Such a convocation was made even when it violated international agreements concerning labor relations subscribed by Venezuela. On this issue, the ICHR  has point out that:

 

47. In relation to the above, it is the opinion of the ICHR  that having permitted the general population to participate in such a referendum, that is to say, to include individuals who are different from labor union members, implies a violation of the right to join a labor union and of the workers rights to choose their leadership. These abovementioned actions were severely criticized by the Committee on Labor Unions of the International Labor Organization (ILO).

 

48. Once the elections were realized in conformity with what was required by the rules of the National Electoral Council, the leadership of the local labor unions, federations and cofederations were elected. Of these confederations, the Commission received information that the Cofederación de Trabajadores de Venezuela (CTV) had won the majority of the local labor unions. Notwithstanding the elections, because of diverse interpretations, the elected leadership of the CTV conforming to the results of the elections called by the initiative of the national government, still have not been recognized by national authorities

 

Threats to freedom of speech and life.

 On different occasions the President has openly threatened the news media and journalists. Those threats have caused complaints to be filed with the Inter-American Commission on Human Rights concerning human rights violations.

 

It is also noteworthy to mention that several accusations of violations of human rights by Venezuela during President Chávez's government has been filed before the Inter-American Commission of Human Rights The most relevant are those related to the right to life.

 

Both issues, freedom of speech and human rights violations, were the original reason for the recent visit by the Inter-American Commission on Human Rights. Both issues are highlighted in the report of the ICHR, in the Annex of the press release, points 34 to 40 concerning freedom of speech and 59 through 61 concerning the existence of extreme  groups in Venezuela. On those points we highlight the following:

 

35. The Commission, through its Chronologies on Freedom of Speech, has placed special attention on the state of freedom of speech in Venezuela through its annual reports, and information provided by the ICHR based on the visit realized in February of this year. It is important to highlight that, of the information received in this current visit, it can be concluded that many of the observations of the ICHR and its Special Chronologies concerning freedom of speech made during those previously mentioned visits are still valid.

 

36. Has as been expressed previously, the ICHR has verified that, as it is possible to criticize authorities, but that these have consequences of acts of intimidation which inhibits freedom of speech. In this sense the ICHR has verified that in Venezuela no newspapers have been closed, nor have journalists been detained. Notwithstanding the above, the protection of free speech is not limited to the nonexistence acts of censorship, closure of newspapers or arbitrary detentions of those that demonstrate freely, which requires an ambiance of security and guarantees for journalists. In the particular case of the journalist profession, the Commission has verified the recidivism of verbal and physical aggressions that has occurred during the last few months and days. It is the responsibility of the State to provide protection to the citizenry, including social communicators, through proactive measures directed to disarm sectors of the civil population that are operating on the fringes of the law, and who could be involved in these acts.

 

The Bolivarian Circles and Intimidation.

Another aspect related with aggressive actions against the freedom of speech and right to the life, is the behavior of the Bolivarian Circles, sponsored by the Government from the office of the Vice Presidency of the Republic and with headquarters in the Miraflores Palace, as the President of the Republic declared in his program “Aló Presidente” of June 10 2001. These groups have behaved in an aggressive manner against the media, the Church, the opponents of the Government and demonstrations of the opposition. The same Inter-American Commission on Human of the OAS points out:

 

13. The ICHR has noted that political participation, the right of assembly, and freedom of speech are rights guaranteed by the American Convention, and in this sense, the Bolivarian Circles, as free groups of citizens and grass roots organizations that support the political agenda of the President, under certain conditions, are an ideal channel to exercise these rights. Without pre-judging the ICHR understands that the expression of certain partisan political ideas can not be given certain privileges to the determent of others nor to justify violent acts o restrictions the the rights of others with different political views or determined professional roles, much less if they receive public financial support. The Commission reminds the Government that it is the responsibility of the State to guarantee the free exercise of all rights for all the inhabitants of Venezuela. The State compromises its international responsibilities if civil groups freely act violating the rights of others with the support or tacit approval of the Government. Because of this the Commission calls on the Government to seriously investigate acts of violence attributed to Bolivarian Circles and urgently adopt  all necessary measures to prevent the repetition of such acts in the future. In particular, it is indispensable that the monopoly of force stay exclusively under public security forces, and insure the complete disarming of all civil groups.

 

Authoritarian tendencies.

 In another sense, in January 2001, the President announced the launching of the National Education Project oriented towards controlling the content of education and the administration of private schools. Such a measure caused diverse protests and even the writing of a new Law of Education, in consultation with civil society, however it was later rejected, and modified by the President of the Republic.

 

In November of 2001 the President, using  a questionable Enabling Law usurped legislative functions and decreed 49 laws that violate constitutional rights of economic and social content. It is to be highlighted that the 49 laws were decreed without consulting with citizens as the Enabling Law itself mandates and is established in the Constitution.

 

Peaceful reaction by civil society.

 As a response to these violations, offenses and abuses previously described, on December 10, 2001 a general strike occurred. On January 23 2002, massive marches occurred in the main cities of the country. On February 4, 2002 and February 27, 2002 similar marches occurred. This was followed by an indefinite strike that began on April 9 and it lasted up to April 11, initially for the purpose of supporting the Venezuelan Oil Company, PDVSA, a state company whose activities were gradually being paralyzed in protest to the politicization of its Board of Directors with the incorporation of allies of  President Hugo Chávez. On April 11 a peaceful and unarmed march whose purpose was requesting the resignation of the President took place and concluded in a violent manner with 16 deaths and more than a hundred people wounded.

 

On April 12, 2002, the General Inspector of the armed forces, General Lucas Rincón, created a political power vacuum in the country by announcing that a new government was to assume power after the announcement on television of the supposed resignation of Hugo Chávez. This situation was recognized in the international environment, including the Secretary General of the Organization of American States in his report to the Extraordinary Assembly summoned to consider the situation of Venezuela according to resolution CP/RES.811(1315/02) pointing out:

 

It should be noted that the Rio Group considered President Chávez’s resignation a fait accompli, along with the removal of the vice president and the cabinet.  Consequently, no request was made for his return to power as part of the necessary actions to defend constitutional order. 

 

On April 14 2002 Hugo Chávez assumed the presidency again.

 

II Analysis

 

A quick review of the facts that have been narrated demonstrates three things: First, the country is being administered under a loose interpretation of the Constitution. Second, power is concentrated in the hands of the President of the Republic. Third, the ambiance of violence is increasing in the country. In relation of the first and second conclusions, it is proper to emphasize what is established in the following articles of the Inter-American Democratic Charter:

 

 

All these violations and dispositions of the Inter-American Democratic Charter generate consequences established by Articles 18 and 19 of the Charter.:

 

Article 18

“When situations arise in a member state that may affect the development of its democratic political institutional process or the legitimate exercise of power, the Secretary General or the Permanent Council may, with prior consent of the government concerned, arrange for visits or other actions in order to analyze the situation. The Secretary General will submit a report to the Permanent Council, which will undertake a collective assessment of the situation and, where necessary, may adopt decisions for the preservation of the democratic system and its strengthening.

Article 19

Based on the principles of the Charter of the OAS and subject to its norms, and in accordance with the democracy clause contained in the Declaration of Quebec City, an unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, constitutes, while it persists, an insurmountable obstacle to its government’s participation in sessions of the General Assembly, the Meeting of Consultation, the Councils of the Organization, the specialized conferences, the commissions, working groups, and other bodies of the Organization.” (underlining ours)

Besides, the Declaration of Managua for the promotion of Democracy and Development (AG/DEC. 4 (XXIII-0/93)) expressly states that the mission of the Organization of American States  “...is not limited to the defense of democracy en cases where there is a breakdown of its values and fundamental principles, but it also requires permanent involvement, and creativity to help consolidate it, besides a permanent effort to prevent or anticipate causes of problems that affect democratic systems of government.“

 

In relation to the third conclusion indicated above, it does not seem prudent to wait for the ambiance of violence to degenerate into major tragedies. Because of this international participation is critical at this moment. In this sense it is proper to indicate what is established in the Inter-American Democratic Charter:

 

Article 20

“In the event of an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state, any member state or the Secretary General may request the immediate convocation of the Permanent Council to undertake a collective assessment of the situation and to take such decisions as it deems appropriate.

The Permanent Council, depending on the situation, may undertake the necessary diplomatic initiatives, including good offices, to foster the restoration of democracy.

If such diplomatic initiatives prove unsuccessful, or if the urgency of the situation so warrants, the Permanent Council shall immediately convene a special session of the General Assembly. The General Assembly will adopt the decisions it deems appropriate, including the undertaking of diplomatic initiatives, in accordance with the Charter of the Organization, international law, and the provisions of this Democratic Charter.

The necessary diplomatic initiatives, including good offices, to foster the restoration of democracy, will continue during the process.” (underlining ours)

 

Likewise, point 8 of Resolution AG/RES. 1 (XXIX-E/02) of the 18th of April, 2002 states:

 

“8. To instruct the Permanent Council of the Organization to present a comprehensive report on the situation in Venezuela to the General Assembly at its next regular session.”

 

 

III. Petitions