A young man reads the newspaper in a Caracas park. Photo by June Carolyn Erlick
Challenges for the Opposition
Next month’s elections will be an important benchmark in Venezuelan politics. On November 23, voters will go to the polls to elect 22 state governors and 355 mayors in as many municipalities, as well as choose the mayor of Caracas. The elections are taking place in a political environment influenced by the abrupt proclamation of 26 laws on July 31, the last day of President Chávez’s 18-month powers to issue emergency decrees that have the force of binding laws on any aspect of “national life.”
In this article, we analyze what's happening right now in Venezuela, but at the same time we also seek to illuminate the ever more visible structures that have come to define the Chávez’s regime. The article focuses on the coming elections for governors and mayors in Venezuela, as well as on the decision of the Comptroller General to disqualify several hundred candidates for these elections, and on the passage of 26 laws by presidential decree under special powers granted by the “ley habilitante.” We will examine these changes in detail, arguing that unless the opposition manages to counter them, these state initiatives may result in the consolidation of a regime that is ever more centralized, authoritarian, and unresponsive to democratic demands.
Rather than focus on campaign activity, the electoral process up until now has been defined by a debate over the so-called “disqualifications” of almost 300 candidates. The Comptroller General's office declared that candidates “disqualified” by some sort of legal impediment could not run for office, basing its powers on article 105 of the Organic Law 105. By a strange “coincidence,” the day prior to candidate registration with the National Electoral Council, the Venezuelan Supreme Court upheld the Comptroller’s measures. The practical result of this decision was that four candidates with good chances of winning in their respective states and in the Metropolitan Mayor’s Office of Caracas were eliminated “administratively” from the process.
The Supreme Court decision in Venezuela contrasts with a recent one by Brazil’s Federal Tribunal. The Brazilian Lawyers’ Guild, supported by the Attorney General’s office, had asked the court to approve a measure that would have disqualified candidates facing corruption charges. In a 9-5 vote, the tribunal ruled that if these citizens had not been convicted of the corruption charges, such disqualification would violate the presumption of innocence and that only a conviction could carry with it the suppression of political rights. The court added that in the absence of a conviction, the voters would be the ones who decided if these people deserved to be elected or not.
In Venezuela, no one was disputing the jurisdiction of the Comptroller’s office to dictate such measures, but people questioned whether it is legally possible for a government official to deprive citizens of political rights without due process and without the right to defend themselves from the charges simply because of alleged participation in “administrative irregularities.” Administrative disqualifications are intended to be a kind of precautionary measure that suspends an official from his or her post while the corresponding trial is taking place to establish innocence or guilt through a binding legal conviction, that is, one that has been upheld in the appeal process. If the official is found guilty of the crime of which he or she is accused, that person’s political rights are lost for the term of the sentence. Mere disqualification, without a subsequent trial, annuls the constitutional and legal principle of the presumption of innocence. In this sense, section 2 of article 49 of the Constitution states: “Every person is presumed innocent until the contrary is proved.” The same article makes clear that, “Due process will be applied to all judicial and administrative actions....” Thus, the mere administrative decision applied by the Comptroller’s Office must be followed, inexorably, by a trial that determines if the charges have a basis. It is a legal aberration that the Comptroller’s Office can suspend the legal rights of a citizen through an administrative decision and without a trial.
Articles 42 and 65 of the Constitution are clearly restrictive. Article 42 says: “The exercise of citizenship or of some political rights can only be suspended by a firm judicial sentence in those cases stipulated by law.” Article 65, concurring with this stance, states, “Those who have been convicted for crimes committed during the exercise of their offices and other crimes that affect the public patrimony cannot run for any elected office, during the period stipulated by law, from the time of the fulfillment of the sentence and in accordance with the severity of the crime.” Both articles of the Constitution are very clear and do not lend themselves to misinterpretation. The political right to run for office is only lost when a candidate has received a judicial sentence that has been upheld in a higher court. The recent sentence by the Venezuelan Supreme Court, upholding the disqualifications, as well as the constitutionality of Article 105, constitute a defrauding of the Constitution and the way in which the decision was handed down was an obvious accommodation to the president’s desire to eliminate four significant opposition candidates from the electoral field.
The political bias of the Comptroller’s decision and the Supreme Court’s ruling is demonstrated by the fact that 80% of the disqualifications are individuals linked to the opposition, while only 20% have ties to the government. The opposition controls only two out of 23 governorships and 30 out ot 335 mayor’s posts, putting the rest of the state and government apparatus in the hands of chavismo. It is also important to point out that the disqualifications correspond to alleged “administrative irregularities” and not to cases of embezzlement or theft of public funds, and that some of these alleged regularities took place as long ago as 1997 and 1998.
The subject, although it has a juridical subtext, is essentially political. The authoritarian and autocratic government of Hugo Chávez has clearly shown its true colors in this episode. Chávez controls all the political powers. More than 90% of the Parliament obey his commands; the Venezuelan Supreme Court, whose numbers were raised from 20 to 32 by the Parliament to ensure an overwhelming officialist majority, has become an extension of the legal office of the Presidency with this judicial ruling. The Attorney General’s Office, the Comptroller’s Office and the Public Defender are all offices all held by “yes persons,” absolutely obedient to the orders of the autocrat. In the National Electoral Council, four out of five members are identified with the government. The Venezuelan Armed Forces are tightly controlled by Chávez. Therefore, from a conceptual point of view, the Venezuelan political regime is autocratic. All political power is concentrated in the hands of the president. There is no real separation of powers. This enormous power is not exercised “for now” in a brutally dictatorial fashion in the style of Fidel Castro or Pérez Jiménez; there is no State of Terror, and this is not a police state in the Cuban or Soviet sense. But this simply means that the regime is much more oppressive than repressive. It can count on mechanisms to oppress and asphyxiate society, without being obliged for now to fill up the jails with political prisoners or maintain torture chambers or disappear or assassinate political adversaries.
But, official intolerance in the face of any critical stance, including the systematic non-recognition of the “other” and the deliberate rejection of the creation of a government-opposition dialectic, has deepened division and political polarization within the society to such an extreme that there is not the least bit of communication of one side with the other, without which a democratic society cannot adequately function. Given the organic weakness of the opposition forces, together with the absence of a separation of powers and of any “checks and balances” mechanisms. half of the country is literally drowning, without any institutional support for the exercise of its rights.
The political situation is exemplified by the recent enactment of a package of 26 laws just before the expiration of the Ley Habilitante that gave the president power to legislate. In absolute contradiction to the results of the December 2, 2007, referendum in which voters rejected constitutional reforms, in several of the laws promulgated the president presents several of the aspects of the rejected reforms almost in the same terms. The proposition of changing the name of the Venezuelan Armed Forces to create the Bolivarian National Militia was contained in the proposed reform; the power given to the president to appoint national government officials over governors and mayors to, obviously, weaken those offices and to eliminate the last vestiges of counterweight to the executive in general and the presidency in particular, was also contained in the rejected reform; the redefinitions of property were contained in the reform; the recentralization in the national executive branch of powers that today belong to the states and decentralized autonomous institutes was part of the reform; the enlargement of government powers to intervene in economic affairs was contained in the reform.
To ignore the popular decision about the 2007 proposal to reform the constitution in conformity with the will and designs of an autocrat, without heed to legal or constitutional norms, is, stricto sensu, a tyrannic act. A tyrannic act that demonstrates, once again, as did the proposal to reform the Constitution, a neo-totalitarian intention that cannot be hidden, that is to say, not only control of the public powers but also of society itself. Processes of this type, such as the expansion of statism in the economy, will, within the context of a deficient democratic framework, become transformed into an instrument of social control. Examples are the state control of sports; the creation of an a type of official, supposedly “socialist” culture, the affirmation of hegemony in the area of communications; the same for the attempts, which up until now have failed, for establishing an ideologized “socialist” education and enacting an Intelligence Law that appears copied from the U.S. Patriot Act; all of these will depend on a new legal framework that the government will try to put into effect.
Nevertheless, are these acts of force real or apparent? There are reasons to doubt their reality. They seem to be more like provocations intended to convulse the political scene, to give new strength to the climate of extreme polarization (that had been extending slowly but visibly) and, above all, to try to provoke reactions of desperation, all situations in which the president has obtained profitable results in the past. Chávez does not lose his electoral objectives from sight. He needs to reconstitute an electorate that is increasingly willing to follow him unconditionally, an electorate that now sees him in a more critical fashion. He feels that his own party has been producing unthinkable rebellions in the last few years. In three states, party leaders have launched themselves as candidates independent of his party, including in his home state, where Chávez dissidents have been confronting the Chávez clan, who have taken over the state in a feudal manner. The interesting thing is that up until now polls actually favor this dissident option. In two other states, Chávez has been obliged to recognize leaders who did not count with his blessing as official candidates of his party. This is of very serious significance for Chávez: his charismatic leadership is weakening slowly but progressively. When this happens, in conditions in which power is exercised without resorting to terror, a charismatic leader, whose power rests above all on his affective and emotional bonds with the people, is beginning to run into trouble. Chávez has perceived this, perhaps more clearly than those around him. He understands perfectly that when the “charismatic community”—as the sociologist Weber terms it—begins to lose its illusions about the “magical” abilities attributed to a leader, this leader is on the way to downfall.
Moreover, popular protest, almost of it animated by sectors that still are the president’s supporters, strongly demands government efficiency in the daily administration of social life. Annual inflation (July 2007-June 2008) reached 33% in the traditional Price Index of Caracas. In the National Index, which is too recent to permit comparisons with the preevious year, accumulated inflation to July 2008 reached 17 %. One can easily understand that this is not a motive of rejoicing for Venezuelans.
This national panorama, as well as the international one, which is more hostile than ever before, can explain the recent moves to take control of the situation.
Will the opposition fall into the trap? There are sectors that still envisage a coup. They are in the minority. The democratic opposition, which is the axis of the opposition in general, seems to have to decided to avoid the provocation to engage in violence, maintaining a democratic and electoral strategy. The campaign season started in full force in mid-August. If the democratic opposition manages to present united candidacies for mayoral and gubernatorial seats, it has the possibility of winning between six and nine of the governor’s offices and about one hundred mayoral posts, some of which include the most important city halls in the country. If this happens, it would mark the return of opposition parties within the realm of the state, from which they are almost entirely absent today, a fact that would strengthen their capacity for action and political initiative. The country’s political situation would become significantly more balanced and the opposition would take a huge step towards overcoming its current inadequacies and deficiencies. The necessary condition is, of course, unity.
However, one cannot ignore the fact that the election campaign is taking place in the context of a government that completely controls the National Electoral Council; that it will use, as it has in every prior election, its financial and logistic resources in an obscene manner, and, without a doubt, will apply all available mechanisms to intimidate public employees (whonow number more than two million people, in a state that had hypertrophied in the last few years). That intimidation could also extend to the beneficiaries of social programs (“missions”), without ruling out selective use of violence against the opposition by armed gangs. The political climate, perhaps, would not be that of Zimbabwe, but, in its essence, it would not be so different.
However, the only viable strategy in the face of an authoritarian, autocratic and militaristic regime, with a neo-totalitarian vocation, is the democratic path. If the “physiology “ of the regime is doubtfully democratic, its “anatomy” is formally democratic and this leaves considerable margin for political action and, in this case, electoral action, within which such a democratic strategy can be developed.
However, the only viable strategy in the face of an authoritarian, autocratic and militaristic regime, with a neo-totalitarian vocation, is the democratic path. If the “physiology “ of the regime is doubtfully democratic, its “anatomy” is formally democratic and this leaves considerable margin for political action and, in this case, electoral action, within which such a democratic strategy can be developed. As this analysis has shown, unless the opposition, following the democratic path, manages to achieve significant gains in the coming elections, there is the risk that the increasingly autocratic physiology of the regime—its actual mode of functioning—will end up transforming its anatomy, turning its formally democratic anatomy into the ever more transparent façade of an autocratic and militaristic regime.
Teodoro Petkoff is editor and founder of the Tal Cual newspaper in Caracas. He is political writer and author of eleven books on problems of democracy and socialism. An economist, he was a Venezuelan congressional representative from 1974 to 1994 (four periods) and from March 1996 to February 1999, he served as Planning Minister in the government of Rafael Caldera. A former Communist militant (1949-1970), he founded Moviemiento al Socialismo (MAS) in 1971; he is now an independent on the democratic left.