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Venezuela's Referendum:

Decision of the National Electoral Council will cause another international lawsuit against the regime of Hugo Chavez

By Aleksander Boyd

London (14.11.2003) - The National Electoral Council (CNE) has just cancelled the collection of signatures for the coming referendum in 20 cities around the world. The rationale behind the conclusion is that the electoral body cannot guarantee the due transparency of the process outside Venezuela.

Legal aspects

Constitution of the Bolivarian Republic of Venezuela

Article 23: The treaties, pacts and conventions relating human rights which have been executed and ratified by Venezuela have a constitutional rank, and prevail over internal legislation, insofar as they contain provisions concerning the enjoyment and exercise of such rights that are more favourable than those established by this Constitution arid the laws of the Republic, and shall be immediately and directly applied by the courts and other organs of the Public Power.

Article 51: Everyone has the right to petition or make representations before any authority or public official concerning matters within their competence, and to obtain a timely and adequate response. Whoever violates this right shall be punished in accordance with law, including the possibility of dismissal from office.

Article 62: All citizens have the right to participate freely in public affairs, either directly or through their elected representatives. The participation of the people in forming, carrying out and controlling the management of public affairs is the necessary way of achieving the involvement to ensure their complete development, both individual and collective. It is the obligation of the State and the duty of society to facilitate the generation of optimum conditions for putting this into practice.

Article 70: Participation and involvement of people in the exercise of their sovereignty in political affairs can be manifested by: voting to fill public offices, referendum, consultation of public opinion, mandate revocation, legislative, constitutional and constituent initiative, open forums and meetings of citizens whose decisions shall be binding among others; and in social and economic affairs: citizen service organs, self-management, co-management, cooperatives in all forms, including those of a financial nature, savings funds, community enterprises, and other forms of association guided by the values of mutual cooperation and solidarity. The law shall establish conditions for the effective, functioning of the means of participation provided for under the present article.

Venezuelan Organic Law of Public Administration

Article 8: All public servants are obliged to abide and to enforce the Constitution of the Bolivarian Republic of Venezuela. The public servants incur into administrative, penal or civil liability, depending on the particular case, if decisions ordered or executed by them violate or encroach on the rights guaranteed by Law and the Constitution of the Bolivarian Republic of Venezuela, following orders shall not serve as excuse for the commitment of such acts.

Universal Declaration of Human Rights

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

(3) The will of the people shall be the basis of the authority of government; this will, shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Rome Statute of the International Criminal Court

Article 7, crimes against humanity

1.) For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(h) Persecution* against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court. * Persecution means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.

Analysis

The Venezuelan Constitution contains not provisions or articles which forbid the political participation of the citizenry. Purportedly, the CNE cannot guarantee the transparency of the signature collection event abroad. However, and I will quote from Art. 62 of Venezuela's constitution "It is the obligation of the State to facilitate the generation of optimum conditions for putting into practice the participation of the people in forming, carrying out and controlling the management of public affairs". Art. 70 "The law shall establish conditions for the effective, functioning of the means of participation provided for under the present article". Moreover Art. 90 of the Suffrage and Political Participation Organic Law (LOSPP) establishes the diplomatic missions and staff as the official institution and competent authorities in charge of every aspect related to the exercise of the political rights of Venezuelans when living overseas. Said article also states that the diplomatic staff acts as CNE's representatives for the collection, inscription and submission of votes and relevant data to the Electoral Council.

Why the measure?

The estimated number of Venezuelans living overseas is 500.000, of which 70-90% would vote against Hugo Chavez for they have been forced out of the country due to the disastrous socio-economic situation at present. It is therefore sound to argue that President Chavez does not want them to vote, hence the decision by the "impartial" members of the CNE's board. The CNE latest figure regarding registered voters living overseas is approximately 26.000. It comes as no surprise, given the performance and electoral functions of the diplomatic personnel around the world, that the two figures are so different. By law the process of changing domicile or register on the electoral roll should take a maximum of 45 days (Art. 103 and 105 of the LOSPP), however -as an example- residents of Miami who went to the Consulate to change their domicile in the electoral registry in December 2002 still await for it to be done.

Who can be blamed?

Since the Electoral Power is independent in theory, the responsible individuals are Francisco Carrasquero, Ezequiel Zamora, Jorge Rodriguez, Oscar Battaglini and Sobella Mejias and as specified in Art. 8 of the Venezuelan Organic Law of Public Administration they are liable for their decisions. A lawsuit in the Supreme Court is in order, followed -after a prudential period- of another one in the Inter-American Human Rights Court. The jurisdiction of the International Criminal Court on this case could be difficult to establish, nonetheless it is evident that whatever the precise number of Venezuelans living overseas, our rights as enshrined in our constitution and in the Declaration of Human Rights will be violated, the decision will prevent us to express our opinion in a matter of incredible transcendence for the future of our nation. We could argue that this constitutes an "intentional and severe deprivation of fundamental rights contrary to international law by reason of our political stance".

Should the resolution in regards to our rights be contrary to what it is established in our constitution, the argument of participatory democracy will need a new definition, a "chavista" one?



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