The Devil's Excrement

A very strong explosion shook the headquarters of the honor guard that is supposed to be in charge of the President’s security. Fortunately there were no damages to people. Equally fortunate was that fact that so far the Government has not blamed the opposition for the bomb. For me, it is quite difficult to understand how this could have happened, the headquarters of the honor guard is next to the Presidential Palace and the whole area is surrounded by soldiers, guards, armored vehicles and blockades. According to the Minister of Inetrior and Justice it was “thrown” by people that got on top of a garbage can. Some security…….

The Head of the “Tactical Command of the Revolution” Guillermo Garcia Ponce, proposed today that the participation of international organizations as observers in electoral processes in Venezuela be regulated. He said: ” This is due to the fact that given the Venezuelan political situation the interference  by foreign countries or covert organizations would, if they were given the character of participants, an inadmisible interference in Venezuelan politics”. Now, given that this comes after a sharp attack on the US Ambassador’s visit to the Electoral Board two weeks ago, makes me think that the Chavez Government itself plans to interfere with the upcoming referendum and does not want to have any foreign observers present.

I have a very simple proposal to resolve the issue: Let’s give these international observers the same rights, facilities and regulatory framework than the more than 5,000 Cuban advisers that are presently in Venezuela including Chavez’ bodyguards, “sports’ instructors, medical doctors and the like. That would be fair, wouldn’t it?

Reportedly Hugo Chavez cancelled his visit to the US, because he was afraid he might be subpoenaed for the trial against him brought by the victims of the April 11th. march (see article right below). Chavez, who relishes these trips, was going to visit the UN and everything was ready for it. However, someone warned the President that he could be subpoenaed. Chavez has been accused in a Florida Court of violating the rights of those killed and injured that day, based on the fact that the military plan activated ahd already been banned by an International Court.

Night before last, a judge declare these shooters .I understand the prosecutor is going to appeal, but only because the decision questioned his work. He also believed they were innocent. The judge’s argument? This was legitimate Defense and they were “under a state of necessity” and the accusation was “weak”. This is justice in the Vth. Republic.

Not much time to translate the full article, but there is a very complete discussion of the fourteen articles of the proposed referendum regulations that violate either the laws or the Constitution of Venezuela in today’s El Universal. The first link is the discussion, the second link is article by article and which law is violated……

The discussion of the regulations for the referendum which I dubbed the Big rip off yesterday, were postponed until next Monday  “to allow for the comments and criticisms to reach the CNE” according to the President of that institution Francisco Carrasquero. This is a result of the outrage (with and without the prefix “out”) of the opposition, over the attempt to use the regulations to slow down the process.

According to the illustrious President of the CNE, criticism of the CNE’s lawyer, who is known to be very pro-Chavez, is unjustified as this simply represents a proposal, subject to change and discussion. Well, either Mr. Carrasquero thinks we are stupid or he is. First of all, most members of Chavez’ MVR have supported the regulations fully, saying that they are “just” or that they can be approved with minor modifications as was stated by Jorge Rodriguez today, one of the pro-Chavez members of the CNE. Second, if I were Mr. Carrasquero, I would fire the CNE’s lawyer. The reason is simple, according to Teodoro Petkoff (who is a member of the advisory Board to the CNE appointed by the Supreme Court) in his Tal Cual Editorial, as many as 12 of the articles of the regulation contain violations of the Constitution or the Law, including numerous violations of the “LOPA”, the “Ley Organica de Procedimientos Administrativos” which regulates how every single request and procedure of the Government has to be handled by every single  Government office. Thus, if the CNE’s lawyer does not even know these basic laws, how can he be expected to advise, write and participate in the preparation of such an important law by the CNE?

But we would have to be very naïve to think that the lawyer for the CNE went on his own and wrote this abominable draft for the regulations without consulting anyone. The philosophy behind the proposal was clearly to impede the recall from taking place. No petition for a referendum in Venezuela or anywhere in the world is handled by the electoral authority like the regulations propose. No referendum, in Venezuela or anywhere in the world, bans the initiating petition from being taken from home to home as a way of gathering more signatures. No referendum petition ever, has been handled as if it were the final election like these regulations attempt to do. The real and important act is the vote for the recall, not the petition requesting it. It is that day that things matter. What is obvious is that since Chavez and his cronies know that there is no way in Hell that they may win the recall, they are simply trying to block, tackle, mutilate, maim and castrate any attempt by the opposition to submit a valid request for a recall referendum. And that was what the CNE’s lawyer attempted to do, coached by someone from Chavez’ MVR clearly with Mr. Carrasquero’s knowledge, since he defended it so strongly.

While I do not have time to translate it tonight, there is a very funny article by Elides J. Rojas in today’s El Universal with a preposterous parody with a set of regulations for referenda which I recommend to those that understand Spanish. Rojas’ proposed Article 1. should be enough to get the gist of it:

Article 1. The following types of organizations are prohibited  to participate in the gathering of signatures: Political parties, civilian organizations of any nature, unions, professional or employer’s associations, companies, sports teams, media or neighborhood associations.

The rest is equally funny and ludicrous, in fact so much, that it reminded me of the real proposal as presented yesterday.

Last Saturday I suggested that the decision by the Comision Nacional Electoral (CNE) last Friday, could simply indicate that there was a trap for us waiting to happen. Today, I feel that the country’s democracy may be at a tuning point if the proposed regulations for recall referenda by the CNE, which were revealed today, are approved as they are in tomorrow’s session. The regulations, drawn by the CNE’s legal department, essentially would make it practically impossible to have a referendum take place in any reasonable time frame, would make it difficult for the opposition to gather the signatures necessary and steal the initiative of the petition drive away from the people and into the hands of the Government. Basically, the CNE controls the process and turns the petition drive into an election, simply perverting what it is supposed to be. The proposal shows that the pro-Chavez forces simply have no scruples and are willing to disguise their attempts to block the recall referendum with the appearance of legality. Here is an analysis of the regulations being proposed and what they really might mean in practice. Keep in mind throughout this article that the Venezuelan Constitution establishes limits of time for the handling of a petition for a referendum:

–          Article 14: The request to initiate the procedure for a recall referendum ….must be presented to the CNE fulfilling the norms established. Thus, one can not gather signatures at will; one has to ask permission to do it. Does that sound like a petition for a referendum?

–          Article 15: The request will be made in writing ….by the groups promoting the recall which have to be registered in the CNE. As determined last week, now you have to register to request a referendum, but this means you have to declare yourself a political party, so other groups can not do it. I think this is not democratic and makes a mockery of the term “popular initiative” used in the Constitution to describe how a recall can be activated.  

–          Article 19: ….The CNE will have three working days to accept the request. Now, this is weird why should this step exist at all? What are the grounds for saying no? Is this one more block on the way? In any case, it takes three working days, so the count is + 3 working days so far.

–          Article 20: The CNE will establish the electoral centers as centers for the collection of signatures and the duration of time under which the signature collection process will take place, which in any case, will fall under the supervision of the CNE. Very sneaky. First of all, the CNE controls the whole process, second, it establishes the time frame, it could be just one day or it could be many. Third, the CNE will say where the signature drive may take place. Thus, nothing will be under the control of those making the petition drive. In fact, just the fact that petitions have to be signed at a specific place will be a big limitation in the barrios where people might be intimidated into not signing the petition by chavista thugs. In fact, in the February drive, many people from the barrios went to other areas to sign up. Additionally, the CNE could assign centers in such a way as to make it difficult for the opposition to get the required signatures. It could also choose public schools, for example, as the places where the gathering of the signatures takes place, but the Minister of Education could argue that this can not happen until the next vacation time as it has happened in the past. This could add time to the process, but can not be quantified. At least two months more.

–          Article 21: The form will have….…2) signature and fingerprint. You be the judge, never in the country’s history have both been required. What is the objective? To intimidate? Database? Absolutely ludicrous.

–          Article 22: The petition will be filled and signed at the electoral centers in the presence of CNE officials designated for such an effect by the CNE. The groups promoting or not the petition drive may ask to have witnesses or observers. Now, this is absolutely ludicrous. Just by accepting this, the CNE will be able to argue that it needs time to prepare the officials as well as giving time to those opposing the drive to “prepare” their people for the event. This alone could take weeks and it certainly sounds almost like an election in itself, which is not supposed to be.

–          Article 24: a) The data will be transcribed… Imagine three million names, numbers transcribed. How long will this take. Weeks it’s my guess. b) The data will be validated. i. e. every single name will be checked, this was not done in the referenda to hold a Constituent Assembly or approve the Constitution. Is this fair? Whatever happened to sampling? Another month at least.

–          Article 27. Ten days following the transcription of the data any voter…. i.e. Add ten days to the undetermined time to transcribe the data…..Ten more days

–          Article 30: The recall referendum will take place …..within 120 days of the approval in the case of national referenda. Now, the Constitutions says it is supposed to be ninety days tops, the CNE wants to add 60 days only with this article. 120 more days.

Total additional time 3 days+ten days+two months+one month+four months=7 months ten days and three days, minimum! We are talking June 2004. Compare all of this with the opposition gathering the signatures in its own drive Oct. 3d. 4d. and 5^th. , handing the signatures on the 15^th. and forcing the CNE to hold the referendum as the law establishes within ninety days of that day or find a reason to reject it., i.e. January 15^th.

Thus, the total time is not only uncertain but we may be talking many months with all the uncertainties, times and technicalities involved. Recall also that the law says that after Aug. 19^th. 2004 the Vice-President, who is named by the President by decree, becomes the President is Chavez is recalled. The timeline as described above could easily reach that date. Then, Chavez and his revolution will finally kidnap all of the institutions and there will be no hope for any of us that want to live in freedom. It is that simple, tomorrow is “D” day, if the country and the world allow the Chavistas to get away with these regulations, it will be a shameful day for democracy everywhere.

I am sure that some people will try to draw parallels between the three judge panel  canceling the California recall and the decisions taken in Venezuela to block the recall referendum. To me it simply shows that the same biased, partial and corrupt judges and politicians exist all over the world. In fact, the California decision is as absurd as the ones here. Among other reasons:

-If the voting machines are not good enough for the vote on the recall, they should not be good enough to vote on anything, whether candidates or issues until the problems are solved. Thus no election should take place until it is fixed. But this does not make sense either.

-Should Democracy be in suspended animation until the problems are solved? For how long? When is form more important than substance? When should the will of the people be more important?

-The three Judge panel is composed of three Democrats and is supposed to be the most liberal (read pro-Democratic party) in the US. And we thought we had it bad here in Venezuela with the Electoral Board being three to two against us.

-I would like to ask: Are these the same voting machines with  which Davies was chosen as a candidate for the Democrats and was later elected as Governor? Did anybody complain then? Should his elections be erased too in the interest of Justice or Democracy?

-I hate to be innovative or futuristic, but couldn’t they use something like pencil and paper to vote with? Too complicated? People don’t know how to write anymore? People can cheat with paper ballots?

I think in the end the difference is very clear, in every country there are biased, politically corrupt people or individuals with a limited understanding of what democracy truly is. Form can never replace substance and the people’s participation is indeed at the conceptual foundation of Democracy. The difference is that while Democracy has been suspended in Venezuela since January 23d. of this year, I will bet that a quick solution is found to the California problem short term by a system that still functions. People are the same all over, the difference is that in California the system still has checks and balances. Here we don’t, in Venezuela all we have is the citizens fighting for their freedom versus a system that only responds to the whims of one power hungry person. By this time next year, Californians may not even remember this episode, we Venezuelans may not be able vote for years to come……As simple as that.

Some Chavista officials, including Minister of Education Aristobulo Isturiz and Deputy Cilia Flores made statements last Friday that if the CNE rejected the request for the recall referendum on the part of the opposition, then the opposition would not be able to submit another request because Article 72 of the Venezuelan Constitution says that only one request for a recall can be introduced during the period of an elected official. This has created a lot of frustration and uncertainty within the opposition, and I have even heard people saying that why should they waste their time if the new request might be rejected. (I fault the press partially for this, as the questioning by these ignorant Government officials was quickly propagated by some equally ignorant reporters). This issue was indeed clarified by the Venezuelan Supreme Court on June 2nd. 2002 in a decision that leaves very little room for interpretation. Here is the text, the highlights are mine, in both Spanish and my very liberal English translation (more so when it is a judicial decision). Please distribute it by e-mail so that people are aware of it:

“Igualmente, estima esta Sala desacertado el planteamiento efectuado por los recurrentes, cuando solicitaron se interpretara el último aparte del artículo 72 de la Constitución, con respecto a que “no podrá hacerse más de una solicitud de revocación”, por cuanto pese a que insisten en que ha surgido en ellos la duda interpretativa, lo cierto es que se advierte que la referida solicitud de interpretación constitucional no se apega a los lineamientos establecidos por la jurisprudencia antes transcrita. Al respecto, considera la Sala que el último aparte de la disposición mencionada es claro y preciso, y no posee ninguna contradicción o ambigüedad, toda vez que cuando establece que en todo caso no puede hacerse más de una solicitud de revocación del mandato durante el período para el cual fue elegido el funcionario o funcionaria, es palmario que se refiere a que dicha solicitud haya sido efectuada en cumplimiento de los requerimientos que la propia norma constitucional exige y, por ende, declarada su procedencia por el órgano electoral, dado que la solicitud que no reúna esos requisitos, no produce efectos ni puede considerarse válida y, menos aún, como impedimento o límite para la recepción y tramitación de una nueva solicitud de convocatoria a referéndum revocatorio. En definitiva, el límite que la norma establece se halla en que se celebre o active sólo un referéndum revocatorio para el mismo funcionario y en el mismo mandato. Por consiguiente, estima la Sala que la solicitud planteada en el sentido señalado no es susceptible de interpretación alguna, resultando de esta manera improcedente el recurso de interpretación constitucional en cuanto a dicha pretensión se refiere, y así se declara.”

Liberal English Translation:

Similarly, this Hall considers incorrect the proposition made by the plaintifs, when they  requested that we interpret the last part of Article 72 of the Constitution with respect to whether “no more than one request can be made for a recall referendum”, because even if they insist that there is a doubt in interpretation, the truth is that the request for a constitutional interpretation does not fulfill the requirements established by prior jurisprudence. To that effect the Hall considers that the last part of the article is clear and precise and has no contradiction or ambiguity, because when it establishes that no more than one request for a recall referendum may be made during the period for which the official is elected to, it is clear that it refers to the fact that such a request has been made  fulfilling  the regulations that the Constitutional norm requires and thus has been accepted by the electoral board, since a request that does not fulfill the requirements, produces no effects nor can be considered valid, even less is an impediment or limit to process a new request for a recall referendum. In concluding, the limit that the norm establishes is in that only one recall referendum be activated or take place for the same elected official in the same period. Thus, the request is not susceptible to be interpreted …”

Thus any other interpretation seems to me be absolutely out of the question. Pass it on!

(Even the foreign press has fallen for the Chavista line, as reported by the LA Times, sent in by Russel)

Some additional observations of the CNE decision on Friday:

-Article 50 of the Organic Law of Administrative procedures: In the case of formal defects that may affect request from the public administration…there is a right to correct them, which implies, in general terms, the right of the presenter for the administration to advise him of the errors and give him 15 days to correct the errors”. Need I say more?

–Article in page A-2 of El Universal “Hunting swallows with cannons” by José Peña Solis a former President of the Electoral Hall of the Supreme Court (named by the Chavez administration), who says among other things:

“the CNE ignored the substantive elements which constitute the nucleus of the right to participate , guaranteed in Article 62 of the of the Constitution…..the CNE ignored the fundamental right, did not fulfill that imposes on it the Constitution in Article 62 of the Constitution that it has to “facilitate the generation of conditions favorable for its practice, since it is obvious that which a decision like this one, far from facilitating the exercise of the law, it proceeded to block it and almost sacrifice it. ….An old basic principle of law says that formal problems of an act or request have the character of irregularities which do not invalidate…….when the reasoning of the untimeliness of the signatures, the first thing that is observed is that it ignores the binding doctrine of the decision by the Constitutional Hall on 2-13-2003, and in the supposition that it did not estimate that this was binding, then, given that it was a problem with form, what would have corresponded was to correct it, publishing the signatures and opening a period for all those that had signed to have the possibility of retracting themselves on the basis that In February it was evaluation the President’s performance negatively and now it considers it to be positive…..I think that there is a lack of proportionality in the decision (invalidating more than three million signatures due to formal defects), in this perspective it reveals an inexcusable judicial error…..”

-Finally, the biggest irony of the decision to tell Sumate that it could not legally submit signatures the National Electoral Council is the fact that article 296 of the Venezuelan Constitution says that the members of the CNE will be persons with no political affiliation, something that would invalidate the presence in that Board of two of the members that voted in favor of the resolution and one of the ones that abstained. Does this make their decision unconstitutional? Moreover, according to the Constitution, political parties can not name candidates to the CNE, but supposedly only parties can make requests in front of it. Does this make sense?……..