Erika Zurawski traveled to Venezuela Aug. 10-22 to serve as an official elections observer under the auspices of the National Elections Council of Venezuela, which is overseen by the Venezuelan Supreme Court. Hugo Chavez, the president of Venezuela, faced a recall referendum which aimed to remove him from office. Chavez is leading a national democratic revolution which aims to empower Venezuela’s poor and free the country from foreign domination.
Fight Back!: Why was this referendum so important? What forces were confronting each other?
Erika Zurawski: Hugo Chavez was elected president of Venezuela in 1999. He came to power on a program of giving a voice to the poor. His first initiative was to create a new constitution. This constitution is the most democratic in the capitalist world - instead of simply the rule of law, you also have the rule of justice. Everyone has the right to health care, the right to education and the right to a decent quality of life. It guarantees the rights of women and indigenous peoples. The constitution was approved by 80% of the population, and that same percentage of the population is living in poverty.
Chavez’s ideas shook up Venezuela. The rich were used to getting exactly what they want. Their supporters, along with their U.S. backers, hate Chavez and the movement he leads - so they built an opposition movement to demand that he be recalled from office.
The referendum was a confrontation between two forces. At the voting centers, the Chavez supporters sang the widespread tune, “Uh Ah, Chavez no se va,” meaning Chavez will not go. At the same time the opposition sang “Se va, se va, Chavez se va,” or that Chavez is on his way out.
Fight Back!: You went to an opposition rally. What was it like?
Erika Zurawski: It was mainly made up of middle class and rich people. I talked to about 50 people - some were lawyers, doctors. Some wore suits and others were waving American flags. The things they were saying seemed ridiculous. Everyone that I talked to thought Chavez was going to turn Venezuela into Cuba, and then repeatedly said that he should go live with Castro. Here we were at a rally of hundreds of thousands of people speaking out against Chavez, and their big complaint was that he does not allow any opposition. In fact, the opposition controls almost the entire news media in Venezuela, and the Chavez government has taken no action to censor them. They also allege that Chavez divided the country. The only thing that Chavez did was give a voice to those who did not have it before, putting an end to false unity.
Fight Back!: Why is the U.S. so opposed to Chavez?
Erika Zurawski: The U.S played a part in the recall referendum by funding the opposition. This was through the National Endowment for Democracy. The U.S. is against the Chavez government because Chavez is opposed to corporate globalization, he will not agree to sign on to the Free Trade Area of the Americas unless it is approved by two-thirds of the Venezuelan people, he is a strong critic of Bush’s so-called war on terror, and most importantly, Chavez is using profits from the oil industry to meet people’s needs. The oil industry is being restructured so that more of the revenues are going to the state - not to private corporations.
The U.S. fears the example that the Chavez government is setting for the rest of Latin America. Chavez is an advocate of a Bolivarian revolution – bringing together the people of Latin America and ensuring self-determination and autonomy in the region. The U.S. is already losing control in many countries of the region and does not want to risk slipping its grip on Venezuela.
Fight Back!: The voter turnout for the referendum was huge. Tell us about it.
Erika Zurawski: I went to observe the voting process in Zulia, the state that borders Colombia. On the day of the vote, Sunday, Aug. 15, the streets were filled with long lines. Thousands of voters lined up in front of each voting center to wait for hours in the hot sun. Many of the voters began lining up at four or five in the morning. I asked voters how long they were willing to wait. Everyone responded, “As long as it takes.” On one side they said they would stay “until our comandante does,” referring to Hugo Chavez. Yet others from the opposition said they would wait “until Chavez leaves.” At least for them, the average nine hours wait in line proves to be much shorter than what they will need to wait to get what they want.
Fight Back!: The opposition claims that the referendum was fixed. What about that?
Erika Zurawski: There is no possible way that this referendum was fixed or tampered with. The electoral machinery is the most advanced in the world - even more advanced than the U.S. Voters’ identification was checked three times over - each voter had to present identity documents, give a fingerprint and sign a registry. The process was transparent and the observers were welcomed at every poll. Everyone got to cast their ballot in secret in an atmosphere that was free from intimidation. People said the process was slow but safe, meaning that they had confidence that their vote was going to count.
The opposition is claiming fraud because they can not accept losing. Even before the vote took place the opposition refused to admit that they would accept defeat. After their loss they called for a recount, which Chavez immediately granted. As an observer of the recount I can safely say that no evidence of fraud exists. The opposition is not interested in democracy and what the Venezuelan people want. They are only looking out for their own interests, which for the first time in Venezuelan history are being put behind the interests of the vast majority of the country’s population.
Criminal Investigation Launched to Intimidate Critic of Government’s Rights Record
(Washington, April 5, 2005) — The Venezuelan government should immediately halt criminal proceedings opened against one of Latin America’s most prominent human rights lawyers, Human Rights Watch said today.
Ayala appeared before the prosecutor who told him that his case had been postponed, and ordered him to present himself next week. He was given no explanation for the delay nor informed about the grounds of the investigation.
“This is a clear-cut case of political persecution, targeting someone who has been an effective critic of the Chávez government’s human rights record,” said José Miguel Vivanco, Americas director at Human Rights Watch. “This outrageous accusation would be rejected out of hand in any independent court of law.”
Human Rights Watch urges Venezuelan Attorney General Isaías Rodríguez to halt immediately the judicial persecution of the distinguished human rights lawyer.
Carlos Ayala has been a prominent litigant in cases of human rights violations in Venezuela before the Inter-American Court of Human Rights, often accompanying representatives of Venezuelan non-governmental human rights groups. On March 3 he participated in a special session of the Inter-American Commission on Human Rights devoted to an examination of human rights in Venezuela. After the meeting, the commission issued a statement expressing concern at the situation of risk and stigmatization affecting human rights defenders in Venezuela.
(Washington, DC, May 22, 2007)—The Venezuelan government’s politically motivated decision not to renew a television broadcasting license is a serious setback for freedom of expression in Venezuela, Human Rights Watch said today. The decision will shut down Radio Caracas Television (RCTV), the country’s oldest private channel, when its license expires on May 27, 2007.
“President Hugo Chávez is misusing the state’s regulatory authority to punish a media outlet for its criticism of the government,” said José Miguel Vivanco, Americas director at Human Rights Watch. “The move to shut down RCTV is a serious blow to freedom of expression in Venezuela.”
Of the three commercial stations accessible in all parts of Venezuela, only RCTV has remained strongly critical of the government. The other two—Venevision and Televen—were themselves accused of supporting the attempted coup and subsequent anti–government protests. But both have since removed virtually all content critical of the government from their programming.
Venevision’s license is also due for renewal on May 27, but the government has remained silent about the channel’s future, in contrast to its repeated public attacks on RCTV.
Officials defend the decision by pointing out that the government is merely exercising its right not to renew RCTV’s broadcasting license when it expires. However, no procedure was established to enable RCTV to present evidence and arguments in its favor; the criteria on which the decision was based were not established clearly beforehand, nor was there any application or selection process allowing RCTV to submit an application for continuation of its concession.
In March 2007 the government published details of its case—a 360–page “White Book on RCTV”—which includes pages of allegations against the station, some of them based on investigations by the government broadcasting authority CONATEL. The report was issued months after Chávez made his announcement and does not address the station’s replies to CONATEL’s investigation.
The White Book accuses RCTV of “inciting rebellion,” showing “lack of respect for authorities and institutions,” breaking the laws protecting minors, engaging in monopolistic practices, and failing to pay taxes. However, it does not cite a single final judicial or administrative ruling establishing that the channel had in fact committed any of these alleged offenses during its 20–year contract. No one from the channel has been convicted for their alleged complicity in the attempted coup.
Government officials have announced that RCTV will be replaced by a public service channel open to community groups and independent producers and without editorial control by the state or government programming.
The government has not made a clear case why RCTV must be taken off the air to set up the new channel. The government has frequencies at its disposal on both VHF and UHF wavebands in many parts of Venezuela. It has already used UHF frequencies to successfully install a nationwide education and cultural channel, Vive TV.
“The government’s proposal to democratize the airwaves sounds great in theory, but shutting down broadcasters for their political views is not the way to do it,” said Vivanco.
Human Rights under Threat
Obtained from http://www.amnesty.org
Between 27 February and 4 March 2004 political violence erupted once again in Venezuela. Street protests and demonstrations by supporters of the opposition movement led to repeated violent confrontations with police and security forces in different parts of the country. There were also demonstrations by government supporters. According to information received by Amnesty International, in the context of the disturbances, as many as 14 people were killed in circumstances that have yet to be clarified and over 200 people were injured, with credible reports of excessive use of force by the security forces. There were also more than 500 detentions and a number of reports of ill-treatment and torture. Several police and security force officials were also reportedly injured in the frequently violent demonstrations. Both the government and opposition sought to gain political advantage from the disturbances: the opposition focussed on allegations of abuses by the security forces, while the administration stressed the violence used by protestors and justified the response of the security forces as proportionate and within the law.
Amnesty International believes that the Venezuela government had a clear duty to guarantee public order in the face of frequently violent protests - which included the use of firearms by some protestors. However, there is strong evidence that the use of rubber bullets, tear gas and batons was frequently indiscriminate and disproportionate and significantly contributed to a week of spiralling violence rather than preventing it.
Furthermore, the cases included in this report indicate that several of those detained were not only not involved in criminal acts prior to detention, but then faced ill-treatment and torture while in the custody of the security forces. Reports received also indicate that subsequent investigations undertaken by the Cuerpo de Investigaciones Científicas, Penales y Criminalísticas (CICPC)1, Technical Police, Fiscalía General de la Nación , Attorney General’s Office, and Defensoría del Pueblo, Human Rights Ombudsman’s Office, to establish the facts around these alleged abuses and prosecute those responsible have been slow and inadequate. In comparison, these same authorities have acted with energy against opposition activists who allegedly participated in or incited violence. Over recent years, these institutions have failed to fulfil their constitutional role to act with equal impartiality against government supporters and opponents accused of committing crimes related to the ongoing political crisis. This lack of impartiality, combined with long standing structural weaknesses of these key institutions, threatens to strengthen the culture of impunity that has accompanied human rights abuses over many years in Venezuela.
While President Chávez’s administration introduced several important improvements in the 1999 constitution to protect civil and political as well as economic, social and cultural rights, many of these have remained unimplemented. The political crisis that has dominated Venezuela since 2001 has exacerbated long standing institutional weaknesses and further undermined the impartiality, independence and effectiveness of key institutions such as the Judiciary, Fiscalía General de la Nación, the Defensoría del Pueblo, the Cuerpo de Investigaciones Científicas, Penales y Criminalísticas (CICPC), state and municipal police and the Military, all of whom to a greater or lesser extent have become political actors in the crisis.
On 18 March 2004 the Inter American Commission on Human Rights (IACHR) published a major country report on Venezuela (Report on the Situation of Human Rights in Venezuela, OEA/Ser.L/V/II.118) highlighting many of these serious longstanding institutional weaknesses related to the rule of law and the respect for civil and political rights. The IACHR recommendations provide a clear blueprint for the government to tackle these issues and strengthen the effectiveness and impartiality of key branches of the State, particularly the justice sector.
Hugo Chávez was democratically elected president in 1998 and, after the approval of a new constitution in 1999, was re-elected for a further six-year term in 2000. Chávez, an ex-army officer who led a failed coup d’etat in 1992, established the Fifth Republic Movement (Movimiento Quinta República - MVR), as an independent electoral force distinct from the traditional political parties. His administration committed itself to ending the corruption associated with the ruling political class and addressing longstanding social injustices, which have made Venezuela one of most unequal societies in the region. In 2001, as a result of President Chávez’s pushing through legislation on a number of controversial economic and social policies, several former allies withdrew their support for the president’s political movement and joined forces with those opposed to the administration. In the same year, these opposition sectors - led by traditional political parties, the private media and business interests and the largest trade union - began concerted efforts to force President Chávez from office. President Chávez has maintained considerable support, particularly amongst Venezuela’s poor and excluded, where social projects have been targeted.
The confrontation between the government and the opposition has been characterised by violent discourse, with the private media explicitly supporting the opposition and the state media backing the administration. In the process both sides have sought to de-legitimise and demonise the other and have encouraged a polarized and violently intolerant climate in many parts of the country. The administration has been accused of inciting supporters to threaten and attack media workers who are identified with the opposition and many of these cases have never been adequately investigated by the authorities. There have been regular mass pro- and anti-government demonstrations that on a number of occasions have resulted in violent clashes between the different groups of demonstrators and the police and security forces, with several allegations of excessive use of force by security forces.
In April 2002 the confrontation between the opposition and the government led to wide-scale political violence and a short lived coup d’etat forcing the president from office for 48 hours, leaving at least 50 people dead and many more wounded. The human rights violations committed in this context have not been clarified and virtually all those allegedly responsible have avoided prosecution.
At the end of 2002 the opposition once again tried to force President Chávez from office with an indefinite national strike, particularly affecting Venezuela’s crucial oil industry. The strike, which lasted until February 2003, failed in its objective, but had a crippling impact on the economy. In its aftermath negotiations mediated by the Carter Centre2and the Organization of American States (OAS) led in May 2003 to an agreement between the government and the opposition umbrella organization, the Coordinadora Democrática, committing both sides to seek a “constitutional, peaceful, democratic and electoral solution” to the crisis. This has focussed on the opposition petition for a recall referendum against President Chávez3. Under the constitution such a referendum may take place after half the president’s term of office and if 20% of the electorate sign a recall petition. After many months of wrangling, a National Electoral Council (CNE) was formed to oversee the process. In December 2003, amidst government claims of widespread fraud, signatures were collected under the auspices of the CNE and international monitors. The CNE then took two further months in the initial process to check the authenticity of the signatures.
During 2003 there were frequent rumours of impending coup d’etats and continuing polarization - the government accused the opposition of conspiring by non-constitutional means to bring down the democratically elected government, such as occurred in April 2002. The opposition accused the government of trying to cling to power through its monopoly control of all key branches of the state. Despite this, the political negotiations between the sides contributed to a reduction in reports of political violence.
Nevertheless, at the end of February 2004 it became clear that the CNE, which the opposition accuse of government bias, would not accept as valid sufficient signatures to trigger the referendum. The opposition required 2.4 million signatures to trigger the referendum, and claim they collected 3.2 million, but the electoral authority’s preliminary decision recognised only 1.8 million as valid, requiring more than 800,000 to be re-authenticated and the remaining signatures were ruled invalid. The OAS and the Carter Center said that they had “some discrepancies with the CNE over the verification criteria”4, but called on the opposition to remain within the process for establishing the re-authentication procedures.
On 27 February a summit of G15 leaders from the developing world was held in central Caracas. The opposition called a demonstration rejecting the decision of the CNE. Government authorities granted permission for a small delegation of opposition leaders to present a statement to G15 participants, while refusing the main body of opposition demonstrators access to the location of the summit. However, pro-government supporters were allowed to demonstrate in the locality, reflecting what the opposition allege is unequal treatment of opposition and pro-government demonstrations.
While the opposition and the government blame each other for the rapid manner in which the demonstrations led to violent confrontation, over the following days there were street protests in many different parts of Venezuela. The majority of demonstrations were by opposition supporters protesting at the CNE decision (which was finally made public on 2 March), though there were a number of pro-government protests supporting the decision.
Many demonstrations rapidly became violent confrontations between the Guardia Nacional (GN), National Guard5 and groups of opposition supporters using barricades, stones, Molotov cocktails and firework rockets. There were also several reports of protesters using firearms. In this context, there were clearly legitimate public security concerns, which the authorities had a duty to respond to. However, as has happened repeatedly in Venezuela’s history, Amnesty International believes security forces responding to serious breaches in public order on a number of occasions employed excessive use of force to disperse or detain demonstrators, and subsequently subjected several detainees to ill-treatment or torture.
These types of human rights violations committed by police and security forces have occurred in Venezuela over many years, particularly in situations of mass public demonstrations or civil disturbances. In 1989, in what is known as the “Caracazo”, over 250 people were killed in the context of security forces’ response to massive street protests and civil disorder. In 1992 the security forces intervention in the Catia detention centre led to the deaths of over 60 inmates. Neither of these incidents have ever been effectively investigated to establish criminal responsibility of violations of the right to life and physical integrity. Abuses of this nature have taken place due to poor training of officials, inadequate command and control structures and the absence of effective measures to ensure accountability. Most of all, the impunity that accompanies these abuses sends a clear message to the police and security officials that such conduct will remain unpunished and can continue to be a feature of policing and security operations.
In recent years Amnesty International and national human rights organizations have also documented extra legal killings, torture and other serious human rights violations committed by police and security forces in the context of social cleansing or combating common crime in different parts of the country. These cases, often affecting poor and marginalized communities, gain little public attention and receive an equally inadequate official response; exposing the victims and their families to threats and intimidation and leaving members of the police and security forces responsible free to commit further human rights violations.
As part of its ruling on the Caracazo case, The Inter American Court on Human Rights recently called on the Venezuelan government to review its training, procedures and operational plans for the security forces to respond to serious civil disturbances in order that international standards on the minimum use of force and firearms6 are followed to prevent events similar to those of 1989. Amnesty International is not aware of any steps officially taken by the Venezuela government to comply with this ruling.
In the civil disturbances of 27 February to 4 March 2004 Amnesty International recognises that wide scale indiscriminate or extrajudicial killings were avoided in the face of frequently violent demonstrations. However, rather than acknowledge the use of excessive force and torture in a significant number of cases and ensure full, thorough and impartial investigations, the authorities made numerous public statements offering unqualified support for the conduct of the security forces and sought to dismiss or downplay allegations of human rights violations as merely part of the opposition strategy to discredit the government. The government only reluctantly agreed the need to investigate alleged abuses in the face of numerous complaints and strong national and international pressure.
This article was obtained from "Human Rights Watch" - http://hrw.org/spanish/docs/2007/10/16/venezu17106.htm and is also available in English
Partidarios de Chávez Promueven Cambios Constitucionales para Suspender Derechos en Estados de Excepción José Miguel Vivanco, director para las Américas de Human Rights Watch
(Nueva York, 16 de octubre de 2007) – Una enmienda constitucional propuesta por la Comisión Mixta progubernamental de la Asamblea Nacional permitiría la suspensión del debido proceso en dicho país, señaló hoy Human Rights Watch.
Esta enmienda, de ser aprobada, le permitiría al Presidente Hugo Chávez invocar un estado de excepción para justificar la suspensión de ciertas garantías fundamentales que el derecho internacional califica como no derogables.
La modificación eliminaría la prohibición constitucional de suspender los derechos al debido proceso en estados de excepción. Conforme a la Constitución de Venezuela, estos derechos incluyen, entre otros, el derecho a la defensa y la asistencia jurídica, a la presunción de inocencia y a un juicio justo, el derecho a no ser obligado a declarar contra si mismo, el derecho de un acusado a conocer los cargos y las evidencias que obran en su contra y el derecho a no ser juzgado dos veces por los mismos hechos.
“Esta enmienda, de ser aprobada, le permitiría al Presidente Hugo Chávez invocar un estado de excepción para justificar la suspensión de ciertas garantías fundamentales que el derecho internacional califica como no derogables,” dijo José Miguel Vivanco, Director para las Américas de Human Rights Watch.
Human Rights Watch advirtió que, de acuerdo al ordenamiento jurídico internacional, varios de estos derechos son considerados tan fundamentales que un país no puede sustraerse a sus obligaciones de respetarlos en toda circunstancia—incluso durante un estado de excepción. Así lo han establecido tanto el Comité de Derechos Humanos de las Naciones Unidas como la Corte Interamericana de Derechos Humanos.
Por otra parte, las enmiendas propuestas eliminarían plazos previamente establecidos en la Constitución que limitaban la duración de los estados de excepción. También se eliminaría la obligación del Tribunal Supremo de examinar el decreto que establece y regula el estado de excepción. De igual manera, desaparece la disposición constitucional según la cual el decreto que declara la excepción debe cumplir “con las exigencias, principios y garantías establecidos en el Pacto Internacional de Derechos Civiles y Políticos y en la Convención Americana sobre Derechos Humanos.”
Los promotores de la enmienda argumentan que el gobierno necesita contar con la facultad de suspender los derechos al debido proceso y otros, incluido el derecho a la información, en caso que se produzca otro intento de golpe como el ocurrido en abril de 2002 contra el Presidente Chávez.
“La historia reciente de América Latina demuestra que precisamente durante los estados de emergencia, se hace necesario garantizar una sólida protección jurídica para prevenir abusos,” dijo Vivanco. “De no existir dichas garantías, lo que históricamente ha prevalecido es el ejercicio brutal del poder.”
José Miguel Vivanco, director para las Américas de Human Rights Watch
Chávez Supporters Seek to Suspend Rights in Emergencies
(New York, October 16, 2007) – A constitutional amendment proposed by a pro-government committee in Venezuela’s National Assembly would allow the suspension of due process protections, Human Rights Watch said today.
“This amendment, if approved, would allow President Chávez to invoke a state of emergency to justify suspending certain rights that are untouchable under international law,” said José Miguel Vivanco, Americas director at Human Rights Watch.
Human Rights Watch noted that under international law many of these rights are considered so fundamental that countries are not permitted to derogate from their obligations to respect them – even in a state of emergency. Both the United Nations Human Rights Committee and the Inter-American Court of Human Rights have made this clear.
The proposed amendments would also eliminate previous constitutional time limits on states of emergency. In addition, the amendments eliminate the requirement that the Constitutional Tribunal review the decree regulating the suspension of rights during times of emergency, as well as language establishing that such a decree “meet the requirements, principles, and guarantees established in the International Covenant on Civil and Political Rights and the American Convention on Human Rights.”
Proponents of the amendment have argued that the government needs to have free rein to suspend due process and other rights, including the right to freedom of information, in the event of another coup attempt like that which occurred in April of 2002 against President Hugo Chávez.
However, Human Rights Watch pointed out that it is during highly politicized emergencies that it becomes most pressing to respect basic due process guarantees, such as protections against arbitrary detention and the right to a fair trial.
“Recent Latin American history shows that it is precisely during states of emergency that countries need strong judicial protections to prevent abuse,” said Vivanco. “Otherwise, what has historically prevailed is the brutal exercise of power.”
Gobierno busca ampliar poderes del Presidente en estados de excepción
- This article was obtained from "Human Rights Watch": http://hrw.org/spanish/docs/2007/11/29/venezu17456.htm , and is also available in English
(Washington, DC, 29 de noviembre de 2007) – Las enmiendas constitucionales propuestas por el gobierno que incrementan los poderes presidenciales de emergencia debilitarán la protección de derechos fundamentales en los momentos en que más se necesiten, dijo hoy Human Rights Watch.
La reforma eliminaría la prohibición constitucional de suspender las garantías del debido proceso en estados de excepción. También eliminaría los límites específicos de duración de dichos estados de excepción, permitiéndole al Presidente de la República, en la práctica, suspender indefinidamente el derecho al debido proceso, así como otros derechos fundamentales.
Human Rights Watch está especialmente preocupado porque las reformas conducirían a la suspensión de derechos fundamentales, en clara violación al derecho internacional, ya que las enmiendas propuestas también eliminarían la obligación que esas restricciones cumplan "con las exigencias, principios y garantías establecidos en el Pacto Internacional de Derechos Civiles y Políticos y en la Convención Americana sobre Derechos Humanos."
Como una medida positiva, la reforma expandiría la prohibición constitucional actualmente existente contra la discriminación, incluyendo otras formas de discriminación, tales como la orientación sexual y la orientación política. Pero esta protección también estaría sujeta a una suspensión indefinida, en caso que el Presidente declare un estado de excepción.
"La reforma, de aprobarse, le permitiría al Presidente Chávez suspender derechos básicos indefinidamente sobre la base de un estado de excepción permanente", dijo José Miguel Vivanco, director para las Américas de Human Rights Watch.
Suspensión de las Garantías del Debido Proceso
Los partidarios de Chávez en la Asamblea Nacional originalmente propusieron la eliminación total de la prohibición constitucional de suspender el derecho al debido proceso, en estado de emergencia. En respuesta a generalizadas críticas a esa propuesta, los legisladores la modificaron, agregando nuevos acápites que garantizan que el derecho a la defensa y el derecho a ser juzgado por un juez natural no sean suspendidos.
Sin embargo, la propuesta aún permite al Presidente la suspensión de otras garantías fundamentales del debido proceso, incluyendo la presunción de inocencia, el derecho a ser juzgado por un tribunal independiente e imparcial, el derecho contra la auto-incriminación, el derecho a no ser condenado por hechos no tipificados como delitos y el derecho a no ser procesado más de una vez por el mismo delito. También permitiría la suspensión de los derechos de un acusado a conocer los cargos y pruebas en su contra.
La suspensión de la presunción de inocencia, del derecho contra la auto-incriminación y de otras garantías a un juicio justo violarían el derecho internacional, que prohíbe su suspensión incluso en tiempos de emergencia o de conflicto armado.
"La propuesta final es tan peligrosa como la inicial", dijo Vivanco. "El derecho a un juicio no tiene valor alguno si no se garantiza un juicio justo, y el derecho a la defensa es un consuelo inútil cuando un tribunal puede presumir que uno es culpable".
Otros derechos fundamentales en riesgo
De acuerdo con las enmiendas propuestas, la Constitución protegería explícitamente la suspensión de ciertos derechos durante estados de excepción. Éstos incluyen el derecho a la vida, el derecho a la integridad personal, el derecho a no ser condenado a penas mayores a los 30 años, la prohibición de tortura, la incomunicación y la desaparición forzosa. El derecho al habeas corpus también permanecería inalterable.
No obstante, la reforma aún deja abierta la posibilidad que numerosos derechos fundamentales sean suspendidos indefinidamente. Tanto el Comité de Derechos Humanos de las Naciones Unidas como la Corte Interamericana de Derechos Humanos han dejado en claro que, conforme al derecho internacional, muchos de estos derechos son considerados tan fundamentales que los estados no pueden dejar de cumplir con sus obligaciones jurídicas de respetarlos, incluso en estados de excepción. Estos derechos incluyen las garantías a la igualdad y la no discriminación, la libertad de pensamiento, conciencia y religión, y la garantía de la irretroactividad de la ley penal.
Las propuestas también le permitirían al Presidente suspender indefinidamente el derecho de los ciudadanos a la información, que es consustancial a la protección de los derechos humanos y a la rendición de cuentas.
"Quienes promueven las reformas insisten en que el gobierno del Presidente Chávez jamás violará estos derechos básicos", dijo Vivanco. “Entonces, la pregunta es: ¿por qué han hecho tanto esfuerzo para otorgarle poderes excepcionales al Presidente, si nunca los usará?”
Ampliación del poder presidencial para decretar estados de excepción
Las reformas propuestas ampliarían enormemente el poder presidencial para imponer y mantener los estados de excepción durante los cuales estos derechos pueden ser suspendidos.
En efecto, ampliaría las circunstancias bajo las cuales el Presidente puede imponer estados de excepción, para incluir no solo "catástrofes", "calamidades públicas", y "otros acontecimientos similares", sino también aquellos casos donde "exista la posibilidad cierta e inminente que va a ocurrir una situación capaz de generar catástrofes, calamidades públicas u otros acontecimientos similares". Esto es motivo de preocupación, porque como lo ha dejado en claro el Comité de Derechos Humanos de la ONU, "no todo disturbio o catástrofe constituye una situación excepcional que ponga en peligro la vida de la nación" y justificaría la restricción o la suspensión de aquellos derechos cautelados.
La propuesta eliminaría los límites de tiempo actualmente vigentes en casos de estados de excepción, dejando enteramente a discreción del Presidente determinar cuando cesan las causas que los motivaron. Conforme a las enmiendas propuestas, el Presidente aún debería presentar el decreto que declare el estado de excepción a la Asamblea Nacional para su aprobación (dentro de un período de ocho días), pero no necesitaría autorización para renovarlo. La propuesta eliminaría la facultad de la Asamblea Nacional para revocar el estado de excepción.
Las reformas eliminarían también el requisito actual que exige la revisión, por parte del Tribunal Supremo de Justicia, de la constitucionalidad de los decretos que regulan la restricción de derechos durante estados de excepción. Y aunque las propuestas indican que los derechos sólo serán suspendidos "temporalmente", no proveen ningún mecanismo para terminar con la suspensión mientras permanezca vigente el estado de excepción.
Ampliación a las protecciones anti-discriminatorias
Una medida muy positiva del paquete de reformas es una enmienda que ampliaría la prohibición constitucional sobre la discriminación, para incluir explícitamente hechos de discriminación por etnia, edad, salud, orientación sexual u orientación política. Las disposiciones antidiscriminatorias de la Constitución actual sólo hacen referencias específicas a la raza, sexo, credo, y la "condición social", en tanto categorías protegidas.
La prohibición sobre la discriminación política es particularmente bienvenida, debido a los apoyos explícitos a la discriminación política manifestados por el gobierno del Presidente Chávez, contra aquellos que no comparten sus puntos de vista. (El último año, por ejemplo, el Presidente Chávez aplaudió a su Ministro de Energía cuando exigió la renuncia de los empleados estatales de la empresa petrolera que estaban en desacuerdo con el gobierno, y el propio Presidente, a su vez, pidió al personal militar que hagan lo mismo).
Las nuevas medidas antidiscriminatorias se debilitan, sin embargo, porque también estarían sujetas a una suspensión indefinida durante los estados de excepción.
Government Seeks Overbroad Emergency Powers for President
(Washington, DC, November 29, 2007) – Amendments proposed to Venezuela’s constitution increasing presidential emergency powers would jeopardize the protection of fundamental rights at times when they are most needed, Human Rights Watch said today.
Human Rights Watch is particularly concerned that these provisions could lead to suspension of fundamental rights in violation of international law, as the proposed amendments would also eliminate the requirement that such restrictions “meet the requirements, principles, and guarantees established in the International Covenant on Civil and Political Rights and the American Convention on Human Rights.”
In a positive step, one of the amendments proposed would expand the existing constitutional prohibition against discrimination to cover several other bases for discrimination, including sexual orientation and political orientation. Yet even this protection would also be subject to indefinite suspension, should the president declare a state of emergency.
“These amendments would enable President Chávez to suspend basic rights indefinitely by maintaining a perpetual state of emergency,” said José Miguel Vivanco, Americas director at Human Rights Watch.
Suspension of Due Process Guarantees
President Hugo Chávez's supporters in the National Assembly originally proposed completely eliminating the constitutional prohibition on suspending due process rights during states of emergency. In response to widespread criticism of this proposal, the legislators modified it, adding language guaranteeing that the right to a defense lawyer and the right to a trial with ordinary judges could not be suspended.
However, this proposal would still allow the president to suspend other fundamental due process guarantees, including the presumption of innocence, the right to be tried by an independent and impartial tribunal, the right against self-incrimination, the right not to be convicted for a non-existent crime, and the right against double jeopardy. In addition, the proposal appears to allow for the suspension of the rights of a defendant to know the charges and have access to the evidence against him.
The suspension of the presumption of innocence, the right against self-incrimination, and other guarantees of a fair trial would be in violation of international law, which prohibits their suspension even in times of emergency or armed conflict.
“The final proposal on due process is as dangerous as the original,” said Vivanco. “The right to a trial means nothing if it’s not a fair trial, and the right to lawyer is small comfort if a court can presume you’re guilty.”
Other Fundamental Rights at Risk
Under the proposed amendment, the constitution would explicitly protect a number of rights from suspension during states of emergency. These include the right to life, the right to personal integrity, the right not to be sentenced to prison terms exceeding 30 years, and the prohibitions against torture, incommunicado detention and enforced disappearance. The right to habeas corpus would also remain unaffected.
Yet the proposed changes would leave open the possibility that a wide range of other fundamental rights could be suspended indefinitely. Both the United Nations Human Rights Committee and the Inter-American Court of Human Rights have made clear that under international law many of these rights are considered so fundamental that countries are not permitted to derogate from their obligations to respect them – even in a state of emergency. These include the guarantee of equality and non-discrimination, the freedom of thought, conscience and religion, and the guarantee against retroactive laws.
The proposed emergency powers would also allow the president to suspend indefinitely the right of citizens to information, a right that is integral to the protection of human rights and accountability.
“Proponents of these amendments insist that this government would never violate these basic rights,” said Vivanco. “But why, then, have they gone to such lengths to empower the president to do so?”
Expansion of the President’s Emergency Decree Power
The proposed changes would greatly enhance the president’s power to impose and maintain the states of emergency in which these basic rights could be suspended.
It would broaden the circumstances in which the president could impose states of emergency, to include not only “catastrophes,” “calamities” and “other similar situations,” but also cases where “a certain and imminent possibility exists for the occurrence of situations capable of originating catastrophes, public calamities and other similar situations.” This is of concern, because, as the UN Human Rights Committee has made clear, “not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation” and would justify restrictions or suspension of protected rights.
The proposal would eliminate the existing time limits on states of emergency, leaving it entirely to the discretion of the president to determine when an “emergency” has ended. Under the proposed amendments, the president would still be required to seek congressional approval for an emergency decree (within an eight-day period), but would not need authorization to extend it. The proposal would also eliminate the power of the National Assembly to revoke the state of emergency.
The reform would also eliminate the requirement that the Supreme Court review the constitutionality of the decree regulating the suspension of rights during times of emergency. Although the proposed amendment indicates that rights should only be suspended “temporarily,” it provides no mechanism for ending the suspension so long as the state of emergency remains in place.
Expanded Anti-Discrimination Protections
One very positive measure in the reform package is an amendment that would expand the constitutional prohibition on discrimination to explicitly cover discrimination on the basis of ethnicity, age, health, sexual orientation and political orientation. The anti-discrimination provision of the current constitution makes specific reference only to race, sex, creed, and “social condition” as protected categories.
The prohibition on political discrimination is particularly welcome given the Chávez administration’s past public endorsements of political discrimination against those who do not share the government’s views. (Last year, for example, Chávez applauded his energy minister’s call for state oil company employees who disagree with the government to give up their jobs. He himself has called for military personnel to do the same.)
However, like other basic rights, the new anti-discrimination guarantees would also be subject to indefinite suspension during states of emergency.