- ALEJANDRA HERNÁNDEZ
22 de abril de 2016 23:59 PM
Actualizado el 25 de abril de 2016 18:17 PM
While there is a global trend toward enhanced access to public information, government accountability and transparency, those notions have become increasingly rare for Venezuelans. With the arrival of the 21st century a formidable cloak of opacity seems to have gradually shrouded the public sector management, making secrecy the rule and no longer the exception, according to human rights activists and legal experts.
Mercedes De Freitas, executive director of NGO Transparencia Venezuela (Transparency Venezuela), states emphatically that the lack of transparency in public information has become a "systematic state policy," since on a recurring basis and in a variety of ways access to public information - a key element of the right to freedom of expression enshrined in Article 28 of the Venezuelan Constitution - is limited.
De Freitas’ assertion is evidenced in practice in the absence of information or the delay in the publication of certain data of general interest, such as inflation figures and scarcity indices, epidemiological reports or crime figures, which the public first learns about unofficially through the media. In her view, this is also evidenced when the right to information is restricted by various regulations from different branches of government.
Legal, but unfair
Out of a total of 475 normative statutory instruments approved between 1999 and 2014, among them laws (143), decree-laws (251), laws ratifying international conventions (74), and Supreme Court of Justice (TSJ) decisions, (7), at least 60 contain one or more rules that are considered to be "opaque," because they limit access to information, or because they fail to mention in their wording their legal obligation to grant access to the information, according to a report prepared by Transparency Venezuela entitled “Legal, but unfair.”
The Law of the Central Bank of Venezuela (BCV), enacted on December 4, 1992, and effective until 2001, did not include restrictions on information. But ever since October 3, 2001, when a new law was enacted, the board of directors has been given free rein to withhold data if it deems its publication a threat to national security or economic stability. This provision has remained in force in the five subsequent amendments.
In 2015 the BCV failed to publish inflation figures as it was required by law, keeping them secret until early 2016. At the end of 2015 the law was again amended, but this time by President Nicolas Maduro at the end of his enabling law powers, repealing the provision on the mandatory publication of economic figures. On March 3 the new opposition-controlled National Assembly passed a new Central Bank Law requiring the Central Bank to regularly publish economic data, including inflation and scarcity figures, but the Constitutional Chamber of the Supreme Court of Justice (TSJ) issued a ruling on March 31 declaring the Law unconstitutional.
According to Carlos Correa, executive director of NGO Espacio Público (Public Space), this shows "a vested interest that inflation figures are not known. "In his view, there is a direct relationship between the issues that concern the people and the information that is not revealed.
According to international standards on freedom of expression, all state institutions records are in the public domain, with some specific exceptions provided in law, which are justified in terms of reasons of national security, public order, public health, or protection of the right to privacy, explains Victor Hernandez-Mendible, director of the firm HMO Consultants and a visiting professor at the University for Peace of the United Nations Organization (UN).
Correa agrees with De Freitas in the sense that opacity of information is a “cross-cutting state policy.” He notes that opacity is an integral part of a negative culture that is deeply entrenched within the Venezuelan public institutions, where public servants see themselves as owners of the institutions and seem to forget that they must be held to account.
Out of a total of 60 normative statutory instruments considered to be opaque, 42 were passed by the former National Assembly - 22 as organic and ordinary laws, and 20 as laws ratifying international conventions - another 11 were passed by the President via the Enabling Law, and seven are Supreme Court decisions. In all of them silence and the refusal by public institutions to provide certain types of information is justified.
It should be noted, however, that 43 of the 60 instruments considered to be opaque were passed during the late President Hugo Chavez administration (1999-2013), while during the first two years of President Maduro's presidency (first as Acting President and then as President-elect) 17 of these instruments were passed (i.e., 28.5%). However, the figure is higher because the study of Transparency Venezuela does not include the regulations passed in 2015, among which the partial reform of the BCV Law enacted by Maduro.
Widespread lack of transparency
Carlos Correa does not hesitate to say that opacity in Venezuela has spread into every area of life, although some issues are more sensitive than others. De Freitas, for her part, classifies issues kept hidden and secret into two large categories: those involving large amounts of money and those who have political implications for the government because they have been used for electoral campaigning.
The first group includes, among others, the management of state-owned oil company Petróleos de Venezuela (Pdvsa); imports and management of the Foreign Exchange Administration Commission (Cadivi) and large contracts of foreign companies within the framework of the welfare programs commonly known as “missions,” particularly the Great Mission Housing Venezuela. The second group includes economic indices and crime, insecurity, health, education, justice and defense figures, among others.
And why is that?
Correa agrees with De Freitas in that there are several reasons why public information is withheld from the public, but there are at least two factors that play a key role, namely, the information source and the subject concerned. Both experts emphasize that in most cases there is a "fear of criticism," which, according Correa, is associated with the arbitrary exercise of power, or to inefficiency observed in public administration.
According to De Freitas, information is withheld from the public for a number of reasons, such as hiding inefficiency, "lying or confusing" for propaganda purposes, or covering up corruption.
In hiding information the authorities are motivated by vested interests, like non-accountability and appropriation of public resources by the civil servant as a result of considerations of personal gain, says Victor Hernandez-Mendible.
Regardless of the root causes for opacity, both De Freitas and Correa claim that the adoption of opacity as a policy has spread throughout the state and is practiced at all levels of government, including the judiciary, which is responsible for delivering justice.
Laura Louza, director of the NGO Acceso a la Justicia (Access to Justice), states that the judiciary is no exception. She recalls that since 2004 no public consolidated information on the management of the comprehensive system of justice has been released. This information used to be published annually through a report prepared by the Ministry of Interior and Justice. Furthermore, the annual reports of the Supreme Court ceased publication on the TSJ official website since 2011, to be replaced by the publication of the annual opening speech of the judicial year. She notes that the reports contained less and less relevant statistical information serving as reliable tools in assessing the Supreme Court’s performance. Reports were not even available during 2014 and 2015.
By constitutional and legal provision, state agencies are not only obliged to publish all information that is of general interest to the public, but also have a duty to respond to information requests by interested parties. Failure to respond is also considered opacity.
Between 2009 and 2016, various organizations that are part of the Coalición ProAcceso (Coalition for Access, a movement that promotes access to public information), including Espacio Público and Transparencia Venezuela, addressed at least 474 requests for information to the different levels of government (national, state, and local). In 92.4% of cases (438 requests) there was absolute silence, i.e. there was no response whatsoever. A total 36 of requests were responded to, but in only 22 (4.64%) the response was satisfactory, while for the remaining 14 (2.95%) the answer was no to part or all of what was requested.
For all the above reasons, the three experts interviewed for this article agree that in order to change this culture of opacity the first step is to enact a Law on Transparency, Disclosure and Access to Public Information, which, as they point out, in fact was already passed on first reading in early March. The second step will depend on the political will by all state authorities to comply with the new law and to enforce it.
Translated by Saucho Araujo