Venezuela's Electronic News — www.vheadline.com/

BREAKING NEWS

www.vheadline.com/readnews.asp?id=21973

VHeadline.com commentarist Elio Cequea writes:  the following letter was sent to Senator Norm Coleman, Chairman of the Senate Foreign Relations Subcommittee on Western Hemisphere, Peace Corps and Narcotics Affairs. It was also sent to the following Senators who are members of the Committee:

Lincoln Chafee
George Allen
Michael Enzi
John Sununu
Richard Lugar
Christopher Dodd
Barbara Boxer
Joseph Biden
and last but not least, our friends Bill Nelson and John Kerry

July 11, 2004

Answer to the testimony of Jose Miguel Vivanco, Executive Director Americas Division, Human Rights Watch dated June 24, 2004

Senate Foreign Relations Subcommittee on Western Hemisphere, Peace Corps and Narcotics Affairs

Mr. Chairman, Members of the Committee:

HRW's Jose Miguel Vivanco

Mr. Vivanco was invited to address the Committee regarding the human rights situation in Venezuela. I have just read his testimony. Mr. Vivanco indicated in his statement that the Committee was most interested in an exchange of views. Based on that, I would like to submit for your consideration my views in the form of a written reply to his testimony. My remarks will be as brief as his.

The statement made by Vivanco that Venezuela is one of the most politically polarized countries in the hemisphere is debatable.

First of all, the term “polarized” is one that is use as if it has intrinsic negative connotations. On the contrary, polarization is good for democracy. Without it there would not be discussions and there would be no new ideas.

Secondly, the negative connotation of the word is mostly attributed to the large percentage of people sympathizing with either side of a conflict. In the US the word polarization is completely absent from the political vocabulary while polls indicate numbers like 49% for one presidential candidate and 47% for the other.

In Venezuela the polls consistently show 60% to 40% and that word pops up like a menacing bully threatening the democratic system. All of this happens thanks to the intense and pre-conceived work of the free press.

Mr. Vivanco refers to a state of almost perpetual political crisis in Venezuela. The reason for the “crisis” is pretty well stated in his testimony. Opponents of President Hugo Chavez have sought to remove him from office on several occasions, through an aborted coup d’état in 2002 and through a costly general strike in 2003.

Fortunately, the opposition … or at least some in its leadership … have since agreed to address the political disagreements within the framework of the Constitution. The President has been trying to convince them to do that for quite some time. They have collected enough signatures as required by the Venezuelan Constitution and the President has accepted the results of the independent Electoral Power, the CNE. A national referendum to determine whether or not President Chavez should remain in office will take place in August.

Clearly, the “crisis” Mr. Vivanco refers to seemed to disappear the very moment the opposition decided to be bounded by the law.

With regard to the August referendum, it is not an “agreement” as Mr. Vivanco stated. It is simply the law and its application. Thanks to the application of the law .. and not the “agreement” … Venezuela today is a democracy, as he correctly emphasized. Although, it is not “imperfect and fragile” as he said. Venezuela’s democracy is as good as a democracy is suppose to be.

Have you ever heard about a referendum to recall a Head of State because 20% of the electoral population is not happy with him?

That is possible in Venezuela thanks to the new Constitution … and, the new Constitution came about thanks to President Chavez.

Mr. Vivanco indicated in his report that, “the principle concern of the international community with regards to Venezuela should be to help the country strengthen its democratic institutions and ensure that it does not suffer another rupture of its constitutional order, as occurred during the 2002 coup.”

To ensure this, the opposition leadership should be kept under a close watch. They are the ones who have caused ruptures of the constitutional order. The international community should be more careful selecting whom in the opposition they choose to support. The unconditional support from the National Endowment for Democracy (NED) to opposition organizations … some of which participated and supported the coup … contradicts what Mr. Vivanco calls his principal concerns.

I disagree with the statement that HRW “has sought to provide an objective and impartial perspective on human rights developments in Venezuela.”

Mr. Vivanco contradicts himself while explaining the reasons why he is concentrating his efforts on freedom of the press. He said that it is “not because it is absent in Venezuela, but because it is a central point of contention in the ongoing political crisis.” He goes on to indicate that “the government of President Chavez has largely respected press freedom even in the face of a strident and well-resourced opposition press.” Furthermore, he says, “Indeed, as part of the often heated and acrimonious debate between supporters of the government and its opponents, the press has been able to express strong views without restriction.”

Why then, I ask, is he focusing on freedom of the press?

Mr. Vivanco's biased support for the opposition is easy to see in some of his assertions. While recognizing that journalists working for both sides have been victims of aggression and intimidation, somehow he is “certain” that it has happened to journalists sympathetic to the government “to a lesser degree.” In other words, his conclusion from that situation is clean cut: Chavistas are bad; people of the opposition … not as bad.

There is an obvious intent to mislead in the report that he presented to the Committee. The legislation draft that supposedly “threatens” freedom of the press has to do, in Mr. Vivanco‚s own words “with limiting what could be aired during normal viewing hours.” There is nothing wrong with that. The intent of this law is to limit and penalize the occurrence of “accidents” like the one Janet Jackson had during this year Super Bowl half time show … that accident happened during “normal” viewing hours and lots of kids saw it.

Of course the purpose of the law is to impose stringent and detailed controls over radio and television broadcasts. Don’t you have that in the United States? Graphic and violent shows are shown only late at night when most kids are in bed. “Parental discretion is advice” in the lower right corner of the TV screen is a stringent and detailed control over television broadcasts according to Vivanco.

The reference to the abusive practices by state security forces is … with all due respect to Mr. Vivanco‚s position … plain ridiculous.

In every civilized country, when serious unrest “appears,” they are usually followed by the arrival of “abusive” security forces. It has happened in Seattle, New York, Miami, Cancun and Paris. Why should Caracas be any different?

The HRW Executive Director for the Americas called “credible” reports of beatings and torture handed to him. Where did those reports came from? Aren’t they suppose to come from the agency he represents? Also, he says that the abuses “allegedly” committed “appeared” to enjoy official approval at some level of command in the forces responsible for them. Is he quoting from the same reports? How can words like “credible,” “allege” and “appear” be mixed in one paragraph and still keep intact its integrity?

HRW's Jose Miguel Vivanco

The report from Mr. Vivanco expresses his concerns regarding alleged threats to the independence of the country‚s judicial power. He sees that threat coming from the new law regulating the Venezuelan Supreme Court (TSJ). Mr. Vivanco statements regarding the issue are also misleading. The real intent of the law is to curb down rampant corruption in Venezuela by stressing the enforcement and application of the law. The real issue here is that the government has a majority in the National Assembly. I can warrant you that if the opposition were the one with majority in the assembly, there would no issue with the passing of this law.

Moreover, it is false that the simple majority in the Assembly will get to approve the twelve new magistrates to the TSJ. That will only happen if agreement cannot be reached after a third call for vote. In the past, parties and groups controlling a third of the Assembly have been able to sabotage discussions and the passing of laws that were against their particular interests. Now, all members of the Assembly have no choice but to participate in the debates and calls for vote. There will be no more political sabotage.

It is also a lie that the TSJ “may ultimately determine the outcome of the recall referendum scheduled for August 15.” Even if the court decides that Chavez can run again in the “subsequent” election, how could that influence the outcome of the already effected referendum?

It is true though that the referendum result “is expected to be hotly contested” … that is what some leaders of the opposition have publicly expressed if the results are contrary to their desires.

The TSJ law is not the perfect fit that will heal the problems of the Venezuelan judiciary. But, it is a good try. Realistically speaking, corruption will never go away. However, at this moment in Venezuela there are people in trouble with the law who in other times would have been immune. I am sure that, if given the opportunity, the weak points in the system will be fixed with time. Venezuela is a developing country. Just give us a fair opportunity to develop. Intervening without understanding our idiosyncrasy is a mistake. That is what HRW and other institutions are doing.

Going back to Vivanco’s testimony, he acknowledges the corruption higher up in the TSJ. He calls “highly questionable” the pro-opposition rulings that absolved the military officers who participated in the 2002 coup. They were absolved because according to the court, there was no coup d’etat but rather a “vacuum of power.”

Mr. Vivanco also mentions the failure of lower court judges to address the illegal activities carried out as part of the general strike that cost the country billions of dollars in oil revenue and did enormous harm to the economy.

It is definitely true that some judges let opposition members off the hook after they sought to undermine the rule of law.

Why then is he concerned about Chavez and his supporters taking steps to strengthen the judiciary?

Why see that as an attempt to rig the system to favor Chavez’s own interests?

Does he have a better suggestion?

Mr. Vivanco’s attempt to compare the Venezuelan President with sorry former Latin American head of state such as Argentina’s Carlos Menem and Peru’s Alberto Fujimori is weird. Most people in the opposition tend to compare him with Cuba’s Fidel Castro. The point is that Menem‚s court-packing scheme and Fujimori’s assault on judicial independence had little effect in their eventual fall from grace. That was mostly caused by their love affairs with the CIA, the IMF, The World Bank and … of course … corruption.

The extent of Mr. Vivanco's concerns for the new Venezuela’s TSJ Law is surprising. He criticizes as questionable decisions made higher up in the TSJ. He also makes reference to the failures of lower court judges. However, he is against a law that will help to fix some of that.

What are the real reasons of his concerns?

A close pick into it is provided in his testimony: “It is the courts that must ultimately determine whether decisions by the country‚s electoral authorities are valid, as well as whether the actions of Chavez‚ supporters and opponents, in the streets and elsewhere, are legally permissible.”

Vivanco’s concerns about Chavez‚ supporters being adversely affected by what he implicitly characterizes as a favorable TSJ, seem to be the cover for the real reason for his preoccupation: his friends in the opposition. They are the ones who will lose control of the TSJ with the implementation of this law. Some of the most questionable decisions and failures he mentions actually might be reversed.

So, what exactly is he fighting for?

Human right violations caused by a law approved by a legislature operating within the rules of democracy are difficult to image. There are more obvious violations in this part of the world where Mr. Vivanco could direct his influence and attention more productively. The recent tightening of the Cuban embargo has a more direct effect in the lives of families and in fact violates some of their most basic human rights. A President George W. Bush mandate that limits seeing and visiting family in another country to only once every three years is a situation where HRW and Mr. Vivanco could use his authority more effectively.

It is not too late for HRW to reverse its course. Mr. Vivanco’s calls for The World Bank and the Inter-American Development Bank to pressure the government of Venezuela to refrain from reforms to the judiciary power is a typical abuse of power and influence.

The United States and other countries signed the Democratic Charter in 2001 committing themselves to work together and defend democracy in the region. These countries are required to respond to emerging threats before serious harm is done to a country’s democratic institutions. Today Venezuela faces such a threat and the international community should engage with the Venezuelan government to address it.

The threat to the democratic institutions in Venezuela comes from the Venezuelan opposition. They are the ones who should be pressured. No more coups! No more “civic strikes”! No more dead people signing referendum petitions!

Sincerely,
Venezuelan citizen
Elio Cequea
mailto:Elio@vheadline.com

Testimony of Jose Miguel Vivanco

Senate Foreign Relations Subcommittee on Western Hemisphere, Peace Corps and Narcotics Affairs Washington, D.C., June 24, 2004

Testimony of Jose Miguel Vivanco

Executive Director Americas Division,

Human Rights Watch

Senate Foreign Relations Subcommittee on Western Hemisphere, Peace Corps and Narcotics Affairs

Mr. Chairman, Members of the Committee:

HRW's Jose Miguel Vivanco

Thank you for your invitation to address the committee regarding the human rights situation in Venezuela. I know the Committee is most interested in an exchange of views, so my remarks will be brief. I would like to submit, for the record, my written testimony.

Venezuela is one of the most politically polarized countries in the hemisphere. It has been in a state of almost perpetual political crisis for some time now. Opponents of President Hugo Chavez have sought to remove him from office on several occasions-through an aborted coup d‚etat in 2002 and through a costly general strike in 2003. Fortunately, the government and the opposition have since agreed to address Venezuela’s political disagreements within the framework of the Constitution and the rule of law. In August, the country will hold a national referendum to determine whether or not President Chavez should remain in office.

This agreement has been an important achievement for Venezuela. And it underscores the point that I want to stress at the outset of my testimony: Venezuela today is a democracy. It may be an imperfect democracy, a fragile democracy-but it is, nonetheless, a democracy.

The principle concern of the international community with regards to Venezuela should be to help the country strengthen its democratic institutions and ensure that it does not suffer another rupture of its constitutional order, as occurred during the 2002 coup.

Human Rights Watch has sought to provide an objective and impartial perspective on human rights developments in Venezuela at a time when political tensions have encouraged some to exaggerate or misrepresent the country’s problems.

One issue we have focused on is freedom of the press-not because it is absent in Venezuela, but because it is a central point of contention in the ongoing political crisis. Until now, the government of President Chavez has largely respected press freedom even in the face of a strident and well-resourced opposition press. Indeed, as part of the often heated and acrimonious debate between supporters of the government and its opponents, the press has been able to express strong views without restriction.

At the same time, however, many journalists working for media that support the opposition have been victims of aggression and intimidation by government supporters. And, to a lesser degree, journalists working for media sympathetic to the government have also been subject to acts of intimidation. Moreover, the government’s respect for press freedoms could be threatened by draft legislation introduced last year that would impose stringent and detailed controls over radio and television broadcasts, greatly limiting what could be aired during normal viewing hours. Fortunately the National Assembly has not moved to pass the legislation, which still requires a final debate and vote.

Another issue we have addressed is abusive practices by state security forces. In March of this year, in the midst of the most serious unrest since the 2002 coup, we received credible reports that National Guard and police officers beat and tortured people who were detained during the recent protests in Caracas and other Venezuelan cities. The abuses allegedly committed appeared to enjoy official approval at some level of command in the forces responsible for them.

A third issue-and the main subject of my remarks today-entails threats to the independence of the country‚s judiciary. Over the past year, President Chavez and his allies have taken steps to control Venezuela’s judicial branch. These steps undercut the separation of powers and the independence of judges. They violate basic principles of Venezuela’s constitution and international human rights law. And they represent the most serious threat to Venezuela’s fragile democracy since the 2002 coup.

The most brazen of these steps is a law passed last month that expands the Supreme Court from twenty to thirty-two members. The new law allows Chavez’s governing coalition to use its slim majority in the legislature to obtain an overwhelming majority of seats on the Supreme Court. The law also allows his coalition to nullify the appointments of sitting justices based on extremely subjective criteria. In short, Chavez’s supporters can now both pack and purge the country’s highest court.

It is this court that may ultimately determine the outcome of the recall referendum scheduled for August 15. It will have to decide whether Chavez, should he lose the recall, can run again in the subsequent election. And it will have to resolve any legal challenges that arise from the recall vote itself, which is expected to be hotly contested. Pro-Chavez legislators have already announced their intention to name the new justices by next month, in time for the referendum.

Such a political takeover of the Supreme Court will also compound damage already being done to judicial independence by the Court itself. The Supreme Court has summarily fired several lower-court judges after they decided politically controversial cases. And it has failed to grant 80% of the country’s judges security of tenure, which is an essential ingredient of judicial independence.

President Chavez‚ supporters in the legislative and judicial branches have sought to assuage concerns about the court-packing law by insisting that those wielding authority over judges and justices will show restraint and respect for the rule of law. Such assurances are beside the point, however. A rule of law that relies on the self-restraint of those with power is not, in fact, the rule of law.

Chavez supporters justify the court-packing law largely as a response to pro-opposition rulings in a deeply divided court, such as a highly questionable one that absolved military officers who participated in the 2002 coup. They also point to the failure of lower court judges to address allegedly illegal activities carried out as part of the general strike in 2003 that cost the country billions of dollars in oil revenue and did enormous harm to the economy. It may be true that some judges have let opposition members off the hook after they sought to undermine the rule of law. But Chavez and his supporters should now be taking steps to strengthen the judiciary. Instead they are rigging the system to favor their own interests.

We have seen similar efforts before elsewhere in the region. During the 1990s, President Carlos Menem severely undermined the rule of law by packing Argentina’s Supreme Court with his allies. In Peru, President Alberto Fujimori went even further in controlling the courts, through mass firings and the denial of tenure to judges. Venezuela is currently pursuing both a court-packing scheme, similar to that of Menem, and an assault on judicial independence, similar in spirit (if not in scope) to that of Fujimori. As the experiences of Argentina and Peru demonstrate, these efforts do not bode well for Venezuela‚s democracy.

What makes the developments in Venezuela especially alarming is their potential impact on the country‚s already volatile political situation. Whether the current crisis is resolved peacefully and lawfully will depend in large part on the country’s judiciary. It is the courts that must ultimately determine whether decisions by the country‚s electoral authorities are valid-as well as whether the actions of Chavez‚ supporters and opponents, in the streets and elsewhere, are legally permissible. It is, in other words, the courts that must ultimately ensure that the political conflict does not result in the trampling of people’s freedom of expression and association, due process guarantees, and other basic human rights. To do so effectively, it is imperative that judges and justices be able to act with the independence and impartiality that are mandated by both the Venezuelan constitution and international human rights law.

It is not too late for Venezuela to reverse course. President Chavez’s governing coalition in the National Assembly could still suspend implementation of the new law before any permanent damage is done. And the Supreme Court could strike down, on constitutional grounds, the provisions of the court-packing law that subject the court to political domination by the governing coalition.

The international community should do all it can to encourage Venezuela to protect and strengthen judicial independence. Unfortunately, however, the ability of the United States to advocate for democracy in Venezuela was severely hurt in 2002 when the Bush administration chose to blame Chavez for his own ouster rather than unequivocally denouncing the coup. In addition, the Abu Ghraib prison scandal has undermined the administration‚s moral authority when it comes to promoting the rule of law abroad.

If the United States is to have a positive influence in Venezuela today it will have to be through the sort of multilateral diplomacy that the Bush administration endorsed when it signed the Inter-American Democratic Charter in 2001. The Democratic Charter authorizes the OAS to respond actively to threats to democracy in the region, ranging from coup d’états to government policies that undermine the democratic process, and it identifies judicial independence as an essential component of a democratic system.

HRW's Jose Miguel Vivanco

During Venezuela‚s 2002 coup, the Charter was crucial in mobilizing member states to join the chorus of condemnation that helped restore President Chavez to office. The OAS should now use its authority under Article 18 of the Charter to press the Venezuelan government to suspend implementation of the court-packing law. The OAS should also offer to mediate Venezuelan efforts to reach a consensus on how to strengthen the independence of the judiciary.

International lending agencies could also have a positive influence on the situation in Venezuela. The World Bank and the Inter-American Development Bank have supported projects aimed at improving the administration of justice in Venezuela-from training prosecutors and police to developing court infrastructure. The most urgent improvement needed now is the strengthening of judicial independence and autonomy. Without that, other improvements may only help a fundamentally flawed system function more efficiently. To encourage progress where it is most needed, all future international assistance aimed at improving the Venezuelan justice system should be made contingent upon Venezuela taking immediate and concrete steps to shore up the independence of its judges and the autonomy of its highest court.

When the United States, Venezuela, and other countries in the hemisphere signed the Democratic Charter in 2001, they committed themselves to work together to defend democracy in the region and to respond to emerging threats before serious harm is done to a country‚s democratic institutions. Today Venezuela faces such a threat, and the international community should engage with the Venezuelan government to address it.

Our editorial statement reads:
VHeadline.com Venezuela is a wholly independent e-publication promoting democracy in its fullest expression and the inalienable right of all Venezuelans to self-determination and the pursuit of sovereign independence without interference. We seek to shed light on nefarious practices and the corruption which for decades has strangled this South American nation's development and progress. Our declared editorial bias is most definitely pro-Constitutional, pro-Democracy and pro-VENEZUELA. — Roy S. Carson, Editor/Publisher mailto:Editor@VHeadline.com

Please give your support to our continuing efforts www.vheadline.com/support.asp

if you wish to subscribe or unsubscribe click on www.vheadline.com/subscriber/member_details.asp Subscriber Member Details

SUBSCRIBERS ARE ADVISED THAT THEY, AND THEY ALONE, HAVE THE RESPONSIBILITY OF MAINTAINING THEIR FREE SUBSCRIPTION TO VHEADLINE.COM VENEZUELA AND THAT OUR EDITORIAL STAFF DO NOT HAVE ACCESS TO SUBSCRIBE OR UNSUBSCRIBE ANY READER.

PLEASE NOTE:
NO correspondence will be entered into by any member of our production team.