Due Process, Casualty of Constitutional Reform?

The discussion about the Constitutional Reform underway in the Venezuelan National Assembly (NA) is quickly resembling a travesty.

Let's recap. On August 15, the president submits a proposal to change 33 articles of the Constitution which according to Venezuelan law has to be submitted for approval by the NA before subjecting it to a national referendum on December 2.

The law also requires the government controlled NA to debate the proposal in three separate rounds. After completing the first two rounds of the debate, all of a sudden, a Special Committee of the NA decides, single handedly, to sneak in 25 additional articles to the original proposal, in clear violation of amendment procedures. This was done during a holiday week end and behind closed doors.

And if that wasn't enough, last week, they sneaked in yet another bunch of articles, totaling the number of reformed articles to 69 (this number might change) which is almost one quarter of the total number of constitutional articles (350).

You don't have to be a constitutional lawyer to realize that this is more than just a Reform. Most of the proposed changes seek to increase the power of the presidency to nearly obscene levels and to institutionalize the Military's authority over most aspects of civilian life which clearly violates the spirit and the principles of the current Constitution.

One of the most troublesome aspect of the proposed changes, is the elimination of the right to Due Process during declared States of Emergency. This has caused an outcry among the public in general and Human Right Groups in particular who are denouncing that such fundamental rights cannot be taken away under any circumstances.

Apparently, the criticism must have had some kind of an effect on the NA as they decided, magnanimously, to change its original proposal to the following version:

Articulo 337

El Presidente o Presidenta de la República, en Consejo de Ministros, podrá decretar los estados de excepción. Se califican expresamente como tales las circunstancias de orden social, económico, político, natural o ecológico, que afecten gravemente la seguridad de la Nación, de las instituciones y de los ciudadanos y ciudadanas, a cuyo respecto resultan insuficientes las facultades de las cuales se disponen para hacer frente a tales hechos. En tal caso, podrán ser restringidas o suspendidas temporalmente las garantías consagradas en esta Constitución, salvo las referidas al derecho a la vida, la prohibición de tortura, incomunicación, el derecho a la defensa, la integridad personal, no ser condenado a penas que excedan a los 30 años y la desaparición forzosa.

Article 337

The President of the Republic, at a meeting of the Cabinet of Ministers, shall have the power to decree states of exception. Expressly defined as such are circumstances of a social, economic, political, natural or ecological nature which seriously affect the security of the Nation, institutions and citizens, in the face of which the powers available to cope with such events are insufficient. In such case, the guarantees contained in this Constitution may be temporarily restricted, with the exception of those relating to the right to life, prohibition of incommunicative detention or torture, the right to a defense, to personal integrity, not to be sentenced to terms that exceed 30 years and forced disappearance.

Clearly, the new proposed version of Article 337 tries to circumvent the term Due Process with deliberately vague wording that allows for many interpretations. The question that needs to be asked here, though, is: Does the new wording hold up to international standards of Due Process? And more precisely, what are the Gaps in the proposed law that could leave the door open for future abuses?

There is a reason why the term Due Process was included in the Constitution of 1999. As history has taught us, all Venezuelan governments have a tendency to violate human rights during declared States of Emergency.

Ironically, by changing Article 337, the current legislators might be very well digging up their own graves. Who is not to say, that a future Chavista or Non Chavista government, for that matter, will (mis)use this law against them.


Imagen de la serie realizada por José Arocha. (Licencia CC: Atribución, compartir igual).