blogs.salon.com   I have said little here about the recent decision by the Venezuelan Supreme Court on the consultative referendum. There are many reasons for this. Outrage was one. A second one was that the story can only be told in context. Each decision in Venezuela recently may appear to be reasonable, but they are not when they are viewed in context. In this essay I attempt to provide the full context of the Supreme Court, the Electoral Board and referenda in the last four years. Those that argue the simplistic argument:- Why can’t you wait a few months? – should read it carefully, the answer is clear, for the same reason Chavez could not wait a few months. Except in our case, it is legal, which was not tru for him! But in his case, it did not seem to matter, while we get nothing. Sorry for the length, could not shorten it!   A story of pilferage (or is it rape?)               When Hugo Chavez was elected President, one of his first acts was to call for a referendum to ask the people on whether they wanted or not to have a Constituent Assembly. Such a referenda was not contemplated in the Constitution of 1961. In fact, only Congress could change that Constitution according to the mechanisms of protection it contained. But the Supreme Court of the pre-Chavez era ruled that power resided in the people and thus, if the people approved the Constituent Assembly in a referendum, then it was legal.

            In the same act, the “people” gave the Government the power to set up the electoral rules for the elections to the Constituent Assembly. The 1961 Constitution guaranteed the principle of proportional participation (as does the 1999 one) to protect the rights of the minorities. However, the rules made up by Chavez and his collaborators were such that despite the fact that they received only 67% of the vote, they had 96% of the representatives, but no matter.

            The Constituent Assembly rewrote the Constitution, approved it and on that fateful day in December of 1999 it (thousands died due to flooding) was approved by less than 36% of the registered voters. In the next few weeks, three different versions of the Constitution were published, none of which agreed with the version approved by either the Assembly or the people. But no matter.

            In January 2000, Hugo Chavez, in a preview of the famous words he said in 2001 “I am the law, I am the State”, decided that all electoral positions had to be reelected, that he would remain in his post, but everyone else would be removed immediately. There was one problem though. Who would legislate in the time between his decision and the rightful elections of the new National Assembly? The solution was simple, a “transient” body called the “ Congresillo”, which had no legal bases was created and Venezuela was run and ruled by such an undemocratic, lawless body for 6 months. The members of this body were appointed by the Chavez Government and even though I recall Chavez saying that “all” were elected members of the Constituent Assembly and thus were elected by the people to represent them, this was incorrect as an acquaintance of mine, Nelson Merentes, was part of the Congresillo but was not elected to the Constituent Assembly. But no matter.

            The “Congresillo” ran onto another problem. What to do until the National Assembly was elected with important positions like the members of the Supreme Court, the Electoral Board, the Attorney General and The people’s defender? All of these had been forced to resign except for the People’s Defender which did not exist. Once again the powerful concept of “transitivity” was invoked and the lawless Congresillo selected and elected all of these positions. This is the origin of the current Supreme Court and Electoral Board that so irk the Chavez administration. Moreover, the current Attorney General was Chavez’ first Vice-President. You can see how this is a tale of pilferage and some rape. By piling one illegality on top of each other, Chavez managed to personally select the Supreme Court without the participation of the opposition as well as the Electoral Board. And this was a “new” democracy. But no matter.

            Roughly speaking, because it can’t be proven, the Supreme Court was composed of roughly a third chosen from loyal lawyers to the “cause”, another third from corporate lawyers associated with Chavez’ biggest fundraiser and one third by academic sympathizers. The Electoral Board was composed roughly half by Chavez’ loyalists and the other half by independents with no evident political affiliation. The Court ruled along the Government party line up to April of last year. Since then, the Court has rebelled against Government pressure, becoming more independent. In fact, in December eight of the twenty Justices said they were declaring a work stoppage to protest the Government’s pressure and persecution.

            The Electoral Board was a different matter. While in the limelight when elections take place, the Board has little political “glamour” in between elections. Thus, many of its members, particularly the Chavistas, began looking for greener pastures (no pun intended!). On Nov. 4th., only four of its ten members remained in their jobs and the National Assembly had not only failed to take actions in naming replacements to those that had resigned, but it had failed to even formally accept the resignations of three of them, as required by law.

            On Nov. 4th. over two million signatures were submitted to the Electoral Board asking for a referendum to ask the question: “Do you want Hugo Chavez to voluntarily resign from his position?”. The first attempt to block the referendum took place that day, when the path of the march/caravan carrying the boxes with the petitions was violently blocked by Chavez’ supporters led by Chavez’ well-known associate Lina Ron. The National Guard intervened, everybody was sprayed with tear gas but the petition was somehow handed in.

            Later that same month, Hugo Chavez asked the Supreme Court to rule that some of the articles of the new Electoral Power Bill approved by the National Assembly were unconstitutional in an attempt to stop the referendum. The Court ruled they were not and Hugo Chavez sent it back to the National Assembly. However, the Venezuelan Constitution says that the President can do one or the other, but not both and the Supreme Court ordered the President to decree the new bill, as it was.

            By then the Electoral Board had approved the referendum and its legality and scheduled it by a vote of three to one to take place on Feb. 2nd.. But the Supreme Court issued a ruling saying that any decision had to be made by a majority of four, which at the time meant it had to be unanimous, since six members of the Board had resigned, even if only three of these resignations had been formally accepted by the National Assembly. Roughly at the same time, the Court rejected an injunction to declare the question illegal.

            At this point, one of the members of the Board who had resigned announced that he was withdrawing his resignation and would join the Board. A pro-Chavez member of the Board said she would do the same, but her resignation was indeed legal as she had held another Government post since. All votes of the Electoral Board were recast with the extra member and decisions approved as required by the Supreme Court. At this point the Chavez administration said that it considered the referendum illegal, had no money for it, would provide no military security on the day of the vote and would not allow the use of public schools to hold the vote as it is customary.

            Chavez’ supporters introduced then two injunctions, one to declare the question illegal and another one to declare the participation of the additional member illegal. The Electoral Board proceeded making plans for the referendum Feb. 2nd. asking the public to donate the funds and the private sector the material for the ballots. With only thirteen days to go, the Electoral Hall issued this week an injunction suspending the referendum until the full Court decides on whether the new member was or not a legitimate part of it, and ordering the Board not to carry out any electoral activity until the issue is resolved. According to Venezuela’s laws there is no time limit on how long this may take. Thus, not only was the referendum suspended but, at this time, no election is possible in Venezuela, until the Electoral Hall allows it!

            This is the context of this week’s decision which was reported by the New York Times as “High Court suspends referendum” but within the text of the news it quotes Chavez and its supporters saying they consider it illegal, but no mention is made of the fact that the suspension was made simply on a technicality and not on the illegality of the referendum. In fact, that same day The Constitutional Hall ruled, once again, that the question, and thus the referendum itself was legal.

            The sad truth is that the referendum was not only the origin of the current general strike, but that it would have provided a relief valve for the current crisis. A resounding defeat by Chavez would have removed the “mandate” he claims to have for his revolution and forced him to negotiate an electoral solution ahead of the recall referendum in August. The High Court may yet give us another surprise. There are two “revision” requests introduced in the Constitutional Hall of the Supreme Court. While many believe that there is little chance that the decision by the Electoral Hall will be overturned, I would not dare predict it will not happen. By now, the ways of the Court are highly mysterious as it distances itself from Chavez and its administration.

            What is most remarkable about this story is how the unwritten “power resides in the people” allowed the 1998 referendum, but its presence in the new Constitution has simply been immaterial. Some call it pilferage; I prefer to call it rape.

An interesting piece. Actually, it wasn't too long, it was too short which is why it was a little hard to follow.

A quick comment before I get to the main point. It would seem to me from this that your main beef should be with the Supreme court, not Chavez. According to you the referendum on the Consituent Assembly was clearly unconstitutional at the time. But the Supreme Court ruled it legal. The Supreme Court was not out of line because was they did was interpret the law at the time which is precisely the role of courts - legislators make laws, executives enforce them, and the courts interpret them. Now you may think the decision was completely wrong but nevertheless that is what they ruled. Now with the ruling a couple of days ago you didn't like the courts ruling but again that is the court. I can't make heads or tails of anything they do but that is the system and you have to follow it wether you like it or not. So I really think your comlaint is more with the rulings of the courts then Chavez. (BTW, if you like places where the constitution is ignored you ought to hang out in the U.S. were wars are started all the time with no declaration of war from Congress as clearly written in the U.S. constitution. The U.S. Supreme court of course does nothing which shows Venezuela is not the only country with inept courts).

Anyways, there is really one sentence in your article that cuts to the heart of the whole dissagreement between us. You wrote: " A resounding defeat by Chavez would have removed the 'mandate' he claims to have for his revolution and forced him to negotiate an electoral solution ahead of the recall referendum in August". This is precisely what I disagree with.

In my opinion what that will lead to is government by opinion poll. No president will ever be able to make any decision which may adversely effect any significant segment of society for fear of having these referendums which will then undercut them and force them to resign. This is totally against the concept of what a republic is. In a republic (which is what Venezuela and all countries in the free world are) decisions regarding what the government does are made not by the "people" but by the elected representatives of the people who are elected in regularly scheduled elections. Any elected office holder has a complete mandate from their election until the next scheduled election irrespective of what any popularity polls indicate. Your proposed system of having votes at any time to determine wether or not the presidents mandate still exists or not would completely subvert this.

The effect of this would be to completely emmasculate and render impotent the executive branch of government. The executive branch would only then make decisions that would ensure its continued popularity irrespective of the long term harm those decisions may have on the countries welfare and would avoid unpopular actions even though they may be in the countres best interest. In my view any competent Supreme Court would take that into account in rendering a decision on this subject and therefore decide not to interpret the constitution in a manner that would allow these type of referendums to be held (and yes, courts always take into account the effects of their decisions on other branches of government and their ability to function - an example of the above is the U.S. Supreme court allowing the President to go to war without Congress declaring it).

Just one example of this would have been President Reagen in the U.S. When first elected he took actions which pushed the U.S. into its most severe recession since the great deppresion. That lasted for about two years and due to high unemployment he was very unpopular - I believe he was about 20% in the polls for a long time. Then the economy turned around and he became popular again and everntually won re-election by a huge landslide. I personally couldn't stand him but many conservatives consider him one of the greatest presidents ever - and under your method of doing things he would have been driven from office as a complete failure after a couple of years. (another little aside - you mention that the Constitution was only approved by 36% of the total electorate as if that undermines its legitimacy - it does not - Bush was elected U.S. president with less than 25% of the total electorates vote - if you don't bother to vote then you don't count.)

So this is why I consider all of the opinion polls irrelevant (as the saying goes - the only poll that counts is the one on election day). Obviously, the supreme court has to decide ultimately what it thinks is the correct interpretation of the constitution but this is certainly what I would recomment they decide. I think this is really the central, and very key, difference in our points of view. And everything else follows from that difference.

Further, even if you believe these referendums are allowed under the Venezuelan consitution I don't believe that justifies illegal strikes (such as the one at PDVSA) that have as their aim deabilitating the economy and government revenue to the point that the government collapses or it leaders are driven from power. It doesn't justify the mass media becoming seditious and it certainly doesn't justify threats against the presidents life.

BTW I'm sure you enjoyed the Americas column in the WSJ today by Mary O'Grady - I'm surprised you didn't post it verbatim on your website :) As much as a lunatic as I think she is at least the Journal keeps this stuff on the editorial and opinion pages which is more than anyone in Venezuela does.

Take care. Dan [dburnett@nyc.rr.com] • 1/24/03; 7:44:38 PM

Did you understand the article: The court says it is legal. Miguel Octavio [moctavio@bbo.com.ve] • 1/24/03; 8:22:23 PM

Dan, Go to Venezuela, experience the day to day in a conflict country, and then you can start your critics to Miguel's comments. It is very easy to see things from far and criticize but is very hard to live it day by day. What you family tells you can be true, but listening to it and living it are two different things... Gabriela y Juan Borges [gprietor@alumni.brandeis.edu] • 1/24/03; 8:41:07 PM

It is totally incredible how these people have destroyed our Country. It is just amazing... Afrael [afrael@yahoo.com] • 1/24/03; 9:31:19 PM

Miguel, no I didn't understand that they had made a definitive ruling on it that it was legal. If that is what they decided then that is what we have to go by. But it doesn't change any of what I said except to say that instead of potentially making a bad decision appearently they have already made a bad decision. That is very bad for the future. It is one thing to occasionally have bad presidents, it is another, and much worse, to permanently have a bad system of governence. Venezuela will never develope and will be mired in the same mediocrity and poverty for the next 200 years that it has been in the for the last 200.

Mr. Borges: I travel to Venezuela 4 to 5 times a year - I was there for most all of December. I'll probably be back in April. We'll see what is left of it by then. Dan [dburnett@nyc.rr.com] • 1/25/03; 7:38:23 AM

On the same day that one Hall ruled that theat member of teh Board may be illegal, the Constitutional Hall ruled (for the second time!) that the question of the refeendum is legal. Also, it is not a matter of whether you like it or not, it is in the Constitution and is what Chavez said he would do, ask "the people" about everything. It is crazy, but it is the law. Miguel Octavio [moctavio@bbo.com.ve] • 1/25/03; 8:25:04 AM

That?s the point, the law is enforced by Chavez? supporters when they like to. And when it could come against them, then the law does not exist. Guillermo [guillo@mac.com] • 1/25/03; 8:30:59 AM

www.voanews.com VOA News 25 Jan 2003, 21:35 UTC

Venezuelan President Hugo Chavez says he finds "interesting" the proposals of former American president Jimmy Carter on how to end the current crisis in Venezuela.

In an interview published Saturday in a Montreal newspaper, The Press), Mr. Chavez said these are "interesting proposals, not necessarily new, which it will be necessary to discuss."

Mr. Carter, last year's Nobel Peace Prize winner, in recent days has offered two proposals to end the opposition general strike that began December 2 and has crippled the nation's economy.

One calls for the government and opposition to agree to a constitutionally permissible recall referendum in August. The other calls for a constitutional amendment to shorten the presidential term, allowing early elections this year.

In the interview, Mr. Chavez said it would be "premature" to give an opinion immediately on the proposals, but he said he is ready to talk about them with his country's democratic opposition.

Meanwhile, opponents of the president began a 24-hour street demonstration Saturday to protest a court ruling that suspended plans for a non-binding referendum next month on his rule.

Opposition leaders blame the country's worsening economic woes on Chavez policies and remain determined to see him leave office.

Friday, U.S. Secretary of State Colin Powell said the Carter proposals represent the best available option to the Venezuelan people. Secretary Powell and officials from five other nations met in Washington to seek solutions to Venezuela's political crisis. The countries make up the recently-formed "Group of Friends," which is expected to send a high-level team to Caracas next week to help find ways to break the political impasse. The six-nation group brings together the United States, Brazil, Chile, Mexico, Portugal, and Spain. The strike has paralyzed Venezuela's oil production, the mainstay of its economy, and pushed up global oil prices.

abcnews.go.com WASHINGTON Jan. 25 —

Venezuela's foreign minister said Saturday his government welcomes preliminary suggestions made by diplomats from the United States and five other countries to end the political unrest in his country.

"We are convinced that we will reach a solution in democratic way," Chaderton said in an interview.

Chaderton came to Washington to participate in the meeting Friday of the newly formed "Group of Friends," which also includes officials from the Brazil, Chile, Mexico, Spain and Portugal. Also participating was Cesar Gaviria, secretary-general of the Organization of American States, which hosted the meeting.

The diplomats called on the government of President Hugo Chavez and the opposition to tone down their inflammatory rhetoric and end political violence. The countries will send delegations to Caracas, the Venezuelan capital, on Thursday to continue talks to break the political impasse.

"A concern for the risk of violence in Venezuela is valid," Chaderton said. He also said his government would cooperate with the meeting.

A general strike called by the opposition has lasted more than two months, hurting oil production in the world's fifth-largest exporter. The opposition sees the leftist Chavez as authoritarian and hostile to business. Chavez's backers say he has strong support among the country's poor and see the opposition as undemocratic, noting a failed coup attempt in April.

The strike has been marked by large demonstrations and occasional violence. On Saturday, Chavez's opponents held a protest in Caracas to denounce a court ruling that postponed a referendum on Chavez's rule.

Chaderton did not respond directly when asked if Chavez feared the protests would force him from office.

"We have very good reasons to be optimistic that this will have a democratic outcome, because we are a democracy," he said.

Diplomats are discussing proposals made by former President Carter to either hold a binding recall referendum or amend the constitution to allow early presidential elections.

www.news-journal.com By KEN GUGGENHEIM Associated Press Writer

WASHINGTON (AP)--Officials from the United States and five other countries urged Venezuelans to stop political violence and inflammatory rhetoric as a new diplomatic effort began Friday to end a violent strike that has crippled oil production in the world's fifth-largest oil exporter.

The newly formed ``Friends of Venezuela'' group also agreed to send high-level representatives to a meeting in Caracas next week to help find ways to break the political impasse.

The opposition called the strike almost two months ago to press demands that President Hugo Chavez resign or call early elections. Opponents say Chavez's leftist policies have undermined business in Venezuela; Chavez's supporters say the opposition wants to bring down a democratically elected president who enjoys strong support among the nation's many poor.

``The problem of Venezuela is a problem of great urgency that requires therefore that we act immediately,'' Brazilian Foreign Minister Celso Amorim, who chaired the meeting, told reporters afterward.

In a sign of U.S. interest in a diplomatic resolution, Secretary of State Colin Powell attended the start of the closed-door meeting at the Organization of American States that also included officials from Mexico, Chile, Spain and Portugal.

Powell said the diplomats should work with two proposals made by former President Carter. One proposal is for a recall vote on Chavez to be held in August. The other would be to amend the Venezuelan constitution to allow early elections this summer.

``The Carter proposals represent the best path available to the Venezuelans. They provide the badly needed basis on which both sides can bridge their differences on the immediate issues,'' Powell said, in a text released by the State Department.

Venezuela's foreign minister, Roy Chaderton, told reporters his country was open to proposals that follow the country's constitution. He also agreed that both sides need to lower the tone of the political rhetoric but said: ``We do need guarantees also, because we have a very violent and irrational opposition.''

Chaderton said he would like to see the Friends group expanded eventually to include other friendly nations. Amorim said a possible expansion was not discussed at the meeting.

Miguel Diaz, of the Center for Strategic and International Studies, said the talks at the OAS were critical.

If this doesn't pan out, I think Venezuela is left to its own devices,'' he said. I'm not sure the Venezuelans themselves will be able to find their way through this crisis without major bloodshed.''

The United States has approached the latest Venezuelan turmoil gingerly. The Bush administration has little regard for Chavez, who has visited Iraqi President Saddam Hussein and is a close friend of Cuban President Fidel Castro. But after stressing the importance of democracy to the region, it doesn't want to be seen as undermining a constitutionally elected government.

The administration received sharp criticism for appearing to support a coup attempt in April. It has said it opposes any change in Venezuela outside the constitution.

Chaderton said he viewed the United States as ``a good friend.''

Michael Shifter of the Inter-American Dialogue research group said the April coup has caused the United States to take ``more of a hands-off posture'' to Venezuela.

That's not an answer because the chaos is continuing,'' he said. The United States is one of the few actors that could positively affect the outcome of this.''

While the United States is seen as being able to influence Venezuela's opposition leaders, Brazil's new government, led by leftist President Luiz Inacio Lula da Silva, is seen as potentially influential with Chavez.

On the Net: OAS: www.oas.org

www.alertnet.org NEWSDESK   25 Jan 2003 18:39

By Patrick Markey

CARACAS, Venezuela, Jan 25 (Reuters) - Thousands of foes of Venezuela's President Hugo Chavez took to the streets of Caracas on Saturday to back a 55-day strike aimed at triggering elections in the world's fifth-largest oil exporter.

Waving national flags and banners, the demonstrators flocked in a festive mix of politics and partying to a major highway in the east of the capital, where they clamored for the leftist leader to quit.

"He has to go. After more than 50 days we can wait a few more until he is out," said Flores Diaz, 26, a lawyer cloaked in a red, yellow and blue Venezuelan flag.

The strike, led by rebel managers at state oil firm PDVSA, has slashed Venezuela's vital petroleum output, driving up world crude prices and drawing the international community into the nation's tense political deadlock.

Protests, severe fuel shortages and aggressive political rhetoric from both sides have stoked tensions. At least seven people have been killed and dozens wounded in clashes and shootings since the shutdown began on Dec. 2.

Hundreds of thousands of Chavez supporters packed the streets of central Caracas on Thursday in a show of strength for the former paratrooper, whose populist promises to ease poverty handed him a landslide election victory in 1998.

The pugnacious Venezuelan leader, whose fiery speeches are peppered with references to class warfare, refuses to yield to foes he brands as rich elites trying to topple him by destroying the oil sector.

But the alliance of opposition political parties, unions and businesses counter that Chavez has ruled like a corrupt, inept dictator. They say the stoppage will go on until he agrees to elections.

"Chavez is not interested in going to the polls," said union boss Alfredo Ramos before Saturday's march. "All the government has done is make fun of the Venezuelan people and avoid an electoral solution."

GLOBAL HELP AMID ECONOMIC CRUNCH Nearly eight weeks into the grueling shutdown, Chavez and his foes appear set on standing their ground even as the strike drives Venezuela's fragile economy deeper into recession. Oil exports account for half of the government's revenues.

The Finance Ministry and the Central Bank on Wednesday shut down foreign currency exchange markets to stave off capital flight and halt the deep slide in the local bolivar currency as investors seek the safety of the U.S. dollar.

The international community on Friday stepped up efforts to break the stalemate. After meeting in Washington, six regional governments led by the United States and Brazil said they would send a team to Caracas next week to back negotiations brokered by the Organization of American States.

"The mission is going to discuss concrete measures like, for example, how to diminish the risk of violence," Brazilian Foreign Minister Celso Amorim said in Washington.

The peace talks, which started more than two months ago, are stalled as government and opposition negotiators haggle over the timing of possible elections.

Former U.S. President and Nobel Peace Prize winner Jimmy Carter has proposed two solutions: a constitutional amendment that will shorten the president's term in office or a binding referendum on his rule on August 19. Both sides say they are analyzing the options.

The president's popularity has fallen sharply. But he still retains strong support among poor voters who believe his reforms will give them access to the nation's huge oil wealth.

Fighting back against the strikers, Chavez has ordered troops and replacement workers to take over oil installations. Crude production and exports have crept back up, but the industry is still operating far below its usually levels of about 3.1 million barrels per day.