March 31st., 2004

The Recall [RR] in the Supreme Court

Abstract:

• The recall brings about a passionate controversy inside the Supreme Court.

• Heads at the NEC said that signatures required by the Constitution had not been gathered, thus, abiding by the mega fraud thesis proposed by Chávez.

• The NEC placed under observation “plain or assisted” petitions.

• Electoral Hall introduced a judicial procedure (amparo cautelar) to safeguard and expedite the RR.

• A week later, Constitutional Hall attempted to void the Electoral Hall action.

• It threatened Electoral Hall with contempt.

• Electoral magistrates were not remised.  They reiterated their competence and elevated “an operations conflict” recourse before the SC Plenary Hall, while calling for alternative means in conflict resolution.

• According to the ombudsman, there are political prisoners but prisoners politicians.

• For Chávez The Inter American Commission of Human Rights are immoral Pharisees who cannot judge Venezuela.

• Official bureaucrats maintain there are no charges.  Victims are not acknowledged.

• Thousands who signed RR petitions are fired from public service.

• The ILO pressures the government to reinstate oil workers unfairly laid-off.

• Chávez responds:  “Let the ILO go fly a kite.  Here I rule!”

• Petrodollars fund pro-Chávez mobilizations throughout the Continent.

In Caracas taxicabs drivers and passengers keep emotional exchanges on judicial themes.  In barbershops and beauty parlors chat is about constitutional and legal norms.  Likewise, in restaurants and bars.  In whatever scenario Venezuelans gather, the (RR) regarding Chávez’s presidential tenure is debated.  It has now become a passionate controversy inside the Supreme Court.

Controversy on the RR heated up on Tuesday 24 February, when the three Chavista members of the National Electoral Council (NEC) announced that those requesting the recall had not gathered the signatures demanded by the Constitution in order to schedule it.

Comandante Chávez imposed on them his view of the mega fraud.  The scandal was strong and noisy because Súmate –the citizens association giving technical support to DCG- had verified that submitted signatures surpassed the constitutional quorum.  The OAS mission and The Carter Center issued a joint statement, in which the discreet diplomatic jargon did not hide the knowledge they had as observers of true results, sufficient to activate the RR.  Before the magnitude of the protest, echoed in most of the country, officialdom stated that issued figures were “temporary” and that they were willing to dialogue.

On 2 March 2004, the NEC, -with the sole presence of its three Chavistas- voided 200,000 signatures and passed on for observation those “plain” or “assisted” with data recorded by officially-designated bureaucrats in the recollection centers –requested by petitioners who feared not to be able to comply with complex NEC requirements.  These forms have the handwritten signature of petitioners, their fingerprints, their personal data and the I. D. data.  Chavista witnesses at the recollection sites did not object nor did they make observations.   Regime officials and those of the opposition understood it was licit to ask for assistance in order to complete the petition forms without mistakes.

On 10 March, a petition to void the instruments which were the basis of the resolution of  3 March 2004, -voiding the petitions and placing under observation those which were “assisted”- was submitted to the (SC) Electoral Hall.  They also requested –through a judicial procedure safeguarding human rights (amparo cautelar)- that the NEC be directed “to verify RR petitions in accord with the established judicial order at the time said petitions were gathered.”

On 15 March 2004, the SC Electoral Hall estimated the amparo cautelar to be both competent and applicable.  Art. 297 in the Constitution says:  “Jurisdiction of contested elections belongs to the SC Electoral Hall.”  Said judicial procedure is founded –among others- in the priority of the principles of freedom and good faith in the issuing of documents; in the principle of higher rank of norms as is the case of constitutional norms, which may not be bypassed by simple resolutions  and in the interactivity of norms.  By canceling the effects of the “Instructions” and the “internal memo” –both being issued after the gathering of signatures- the SC Electoral Hall expedited the RR path.

The SC Constitutional Hall –on 23 March- shook the judicial and political world by stating it had voided the decision of the Electoral Hall.  In its internal communication, it asked the Electoral Hall not to risk contempt and give up any role in the electoral dispute it had been petitioned to act upon.   It also requested that the minutes of procedural petitions by officialdom be forwarded.  Failure to comply would place the Electoral Hall “in contempt.”  Furthermore it states, the NEC to have had “organic independence and functional autonomy,” hence, making their acts valid.  Electoral magistrates were not deterred.  Last March the 29^th  , they issued a new decision:  they reiterate the Hall’s exclusive and excluding competence by which  they shall go on dealing with the controversial recourse while citing abundant jurisprudence by the Constitutional Hall on the matter.  They reject the intimidation attempt aimed at stopping the case on the basis that it contradicts equality existing in all SC Halls.  “The Electoral Hall is not subordinate nor dependent regarding Constitutional Hall.”  They also submitted to the SC Plenary Hall a “functions conflict” -on the basis of the “intimidation” by the Constitutional Hall- as it  damages the normal operation of the SC, when one Hall estimates it can intimidate and order another of equal status.”  Electoral Hall added  something no one has dared to challenge:  a call for the use of alternative means for conflict resolution seeking a dialogue on a concerted solution.  Officialdom stated it only abides by Constitutional Hall decisions while it agrees with the calling of the Electoral Hall for a concerted solution of the national crisis.

Jennifer McCoy –from The Carter Center- arrived in Caracas.  She praised  the Electoral Hall decision.  She met at length with the NEC which agreed to dialogue.  Is the RR still alive?  In Venezuela Today we have said that the RR road has been a way of the cross, falling and getting up.  Only Dr. Pangloss could voice optimism, but we’re in Holy Week, time of faith reminding us of the miracle of Resurrection.

HUMAN RIGHTS VIOLATIONS

In Venezuela there are no political prisoners.  So explains the People’s Defender referring to hundreds of opponents in jail.  Our ombudsman is merely echoing the line of Comandante Chávez.  In Aló Presidente of Sunday 28^th  he was definitive and final:  “prisoners are delinquent, conspirators and golpistas.  They are not jailed on my orders but by Court mandate.  It is false that there are desaparecidos (vanished) or tortured.  “These are infamies of the media committed to a terrorist plot.  I call for respect of institutions.  Constitutional Hall, the Attorney General and the People’s Defender are all doing their job.  Those in The Inter American Commission of Human Rights are Pharisees.  They lack morals and I do not accept their meddling in our domestic affairs.  Here human rights are guaranteed by the Constitution.”  (He takes out a little blue book from his pocket and shows it smiling).

Human rights institutions in Venezuela with the greatest respect and credibility have rendered reports, documenting torturing between 27 February and 4 March [electric shocks; toxic powders and tear gases –systematically applied in specific body areas- even simulated executions.  379 detained; 14 dead; 261 beaten up; 9 tortured and 2 cases of rape were recorded.  Media guilds have offered evidence of 25 members who have suffered police repression while working:  three of them are arbitrarily in detention.

Venezuelans and millions abroad were impacted by TV images of a young woman –arms up- brutally beaten by  National Guardsmen; another young man on his knees beaten by guards; students thrown on to the floor by police; being shot at and kicked.  TV cameras recorded these events.  The official explanation is that guards and police were attacked by demonstrators who acted in self-defense.  The President and the Minister of Defense praised the guards.  Some of them received awards.  Regarding the dead, the Attorney General says there are no charges he’s aware of.  Victims say officials refuse to accept them.  Vicepresident Rangel maintains that the dead had been murdered by demonstrators while blaming the regime.  The government asks for evidence of supposed tortures.  Police forensics have forbidden medical exams to verify them.  In terms of those disappeared the explanation is blunt:  “media slander.  Let evidence show it.”

PENALIZED CONSTITUTIONAL RIGHTS

Public servants who signed the RR petition are being fired.  By 03-22-04, guilds had reported 7,600 laid-off.  Argument:  those asking for the recall of the President are his enemies and enemies of the President cannot work for the government.  Physicians who signed are laid-off from the hospitals they worked for.  The Minister of Health says:  “Whomever has signed vs. Chávez shall be fired because this is a terrorist act.” Vicepresident Rangel  call in the foreign media to affirm that no public servant may be laid-off for exercising a constitutional right.  On that very day and the following dismissals in Ministries and State enterprises continue.  In some cases, those that signed were given the chance to retract and void their signatures, in order to keep their jobs.  The Confederation of Workers denounces that these layoffs violate collective bargaining accords and The Labor Act:  they call upon the Minister of Labor to stop them.  She says:  “In the Labor Inspection offices there are no charges regarding violations of political rights in the public sector.”  Oil unions charge layoffs in the industry.  The President of State Oil says:  “in the inquiries made there were 900 signatures an up until now, no one has been fired –although layoffs have not been discarded- as it happens in any corporation when obligations within relations with the enterprise are not met.”

Sanctions vs. signees apply to those seeking some State service.  Passport cases are emblematic:  those who were denied them for having signed, made public their case.  The DIEX (Passport Office) stated that these charges were false.  Several known cases were submitted.  Reply:  “Passports were not processed because we ran out of supplies.”

Labor unions managed to get an ILO resolution pressuring the Venezuelan government for the reinstatement of oil workers unjustifiably fired.  The President’s response was blunt:  “Let the ILO go fly a kite.”  (Aló Presidente, 03-28-04).  Workers announce they will ask for the intervention of the Inter American Commission of Human Rights.  “Here no Commission of Human Rights rules.  Here I rule.”

The Comandante is not lying.  He rules Government; Parliament; Constitutional Hall; NEC; Attorney General;  Controller; People’s Defender and the barracks.  He sells oil ($30.00) and has friends the world over.  He has met Evo Morales (Bolivian Coca Leader) with whom he agreed on a mobilization program in support of the Bolivarian Revolution throughout the Continent.  He also has European friends –some “very well informed” on what is happening in Venezuela:  L’oppositión veut pousser Chávez à la repression.” (Le Figaro, 03-04-04).