JUAN FRANCISCO ALONSO
EL UNIVERSAL

October 12th; over recent years, this date has been surrounded by controversy, but on October 12th this year, besides debating whether the arrival of Christopher Columbus in the American Continent was a discovery, an encounter or an invasion - genocide included - Venezuelans went to sleep with the news that the National Assembly had suspended fundamental rights that cannot be restricted in a state of exception.

When the reform of articles 337, 338 and 339 of the Constitution was announced, Liliana Ortega, Executive Director of NGO Cofavic, was out of the country. She was with other Human Rights advocates, reporting the Inter-American Commission on Human Rights on the situation of fundamental rights in Venezuela.

Once in Venezuela and after reviewing the reform proposal, the executive director of Cofavic (Committee of Relatives of the Victims of the Events of February and March 1989) does not hesitate about describing it as "something impossible to be submitted" and "indefensible." So, she is demanding the authorities to withdraw the proposal, otherwise "they will be turning their back on the democratic world." Moreover, she is asking citizens to reject the proposal in order to prevent situations that are comparable to or worse than the Caracazo from happening again in the future.

Q.- How serious is the fact that due process and right to be informed are suspended in situations of disasters and/or catastrophes?

A. This proposal legitimates authoritarianism by giving the Executive Branch an appearance of legality. This is a serious backward step and this cannot be permitted in the case of legal reforms that concern Human Rights. The only thing that a constitutional reform or a constituent assembly concerning Human Rights can do is going forward.

The Government and the National Assembly claim that the reform aims at safeguarding democracy against conspirators, because states of exception, as they are provided for in the current Constitution, are completely useless.

States of exception do not mean that the democratic state, the rule of law and legality can be put on hold. On the contrary, exceptionality is putting the extraordinary mechanisms of the democratic state in motion to safeguard human rights. There is an intangible core set of rights, including due process, which under no circumstances can be abolished, not even in time of war.

Due process, for instance, is indispensable to safeguard not only those guaranties that can be restricted, but in particular those that cannot. Eliminating the right to due process -which includes the presumption of innocence, the principle of non-retroactive nature of law and of natural judge, and the right to defense- means leaving life and personal safety unprotected and rendering forced disappearances legal, among other things.

Government representatives deny that this could happen and claim that right to life and the prohibition against torture or being held incommunicado will not be suspended in times of crisis.

How can right to life and to human treatment (prohibition against torture) be guaranteed if you do not have the right to be presumed innocent, to be judged by your natural judges, the right not to be punished by crimes that are not defined by law, or not to be made "missing" if it is impossible to know who detained you and your whereabouts because there is no habeas corpus? This reform ignores one of the greatest achievements of humankind in the 20th century: Public International Law, which has established a number of inviolable principles that democratic states have agreed upon to respect.

The Government claims that in April 2002, the state of exception was of no use, because media could not be regulated; and they blame due process for not having been able to punish anybody for what happened then. What do you think about this?

The rule of law cannot be based on disrespecting human rights. States of exception have served both in our region and in Venezuela (Caracazo and massacre in the Retén de Catia prison) to put in motion the most repressive and disproportional police machinery, and this resulted in numerous victims. Human rights cannot be violated in the name of democracy.

Those that support the proposal have virtually recognized that the objective is to go back to the model established in the 1961 Constitution. Does this mean that we are changing to remain the same?

According to the 1961 Constitution, due process was in force during states of exception; notwithstanding, hideous crimes were committed against Human Rights. They should ask the people who live in Valle del Pino (costal Vargas state) whether the situation of illegality that occurred in the aftermath of the 1999 floods was positive or negative. At that time, a series of mechanisms was implemented that allowed the police and the military to declare a de facto curfew; a state of exception that suspended the rule of law and paved the way for forced disappearances which were recognized by the State.

None of the contemporary Venezuelan constitutions authorized the suspension of due process, because that would imply abandoning International Law. There is no constitutional precedent in Latin America or Europe of this being so.

The president of the National Assembly, representative Cilia Flores, a few hours after article 337 had been reformed, declared: "Don't worry, Human Rights are guaranteed in normal situations" What do you think about this statement?

Human Rights have to be guaranteed under any circumstances. The reform of articles 337, 338 and 339 also eliminates other fundamental principles such as the transient nature of states of exception; they must be circumscribed by very particular time reasons; this is why they are called states of exception, because they cannot be eternal. Second, they have to be proportional to the circumstances; hence their categorization into different figures in the Constitution: state of war, public danger, alarm, etc. And last but not least, judicial control of the state of exception is also eliminated. All these principles are abolished and they are included in international commitments the State has assumed and that are established in the American Convention on Human Rights and other international treaties.

If this reform is approved, what would be the message that Venezuela would be delivering to the world?

The State cannot undermine rights.

But in this case it would seem that representatives are applying the "Bolivarian Law", that is, they abide by different rules.

States cannot do as they please concerning Human Rights and there are very clear messages in this regard. In Chile, crimes committed by General (Augusto) Pinochet are being investigated, even after his death. In Peru, former president (Alberto) Fujimori was extradited and is being judged by Peruvian Law for the crimes he committed.

But, what would happen if this proposal is approved?

The only thing that such a vague wording can bring about is a considerable legal uncertainty for the average citizens. The changes proposed give the President an unacceptable power and let him out of the control by the other branches of power. States of exception do not imply the suspension of the rule of law; it does not mean that the State can push the pause button and commit any outrageous act, and then go back to legality.

Hypothetically speaking. If a new social crisis or another disaster, like the one that happened in Vargas, occur and if the reform were in force, would 1989 and 1999 executions, injured and tortures happen again?

No, that acts would be minuscule compared to the changes being made to articles 337, 338 and 339. These changes imply the abandonment of the rule of law, the possibility that the Executive Branch, without any legal control over the temporary nature and proportionality of the state of exception, dressed with legal apparel, can abolish the rule of law.

The most underprivileged sectors, where the President finds his widest support basis, were the ones that suffered the most as a result of the gross violations of human rights during the Caracazo and the disaster in Vargas. What are the guarantees that this time what happened with the reformed Crime Code is not going to happen again, that is, the code was written as an instrument to go against the opposition and Chávez' followers have been the most harmed by it instead?

When the democratic state is lost, we all lose, including the Venezuelan government, because this reform proposal has gone too far (…) nobody wins here, not even those that hold circumstantial power and think that they can control the people by abolishing the rule of law; but the worst hit during a state of exception are obviously the poorest; Latin American and Venezuelan history is a proof of this.

The poorest are the target of the disproportionate use of public force and of the brutality of the State. It is not by chance that over 90% of the victims of executions by parapolice are young, colored people who live in the poor neighborhoods. The people in Prados del Este or La Castellana (high-income neighborhoods) do not have memories of the states of exception, but those who live in Maca, El Valle, Mesuca (Petare) and Catia certainly do, because they are the victims of State brutality.

Translated by Alix Hernández