Amendments proposed to Venezuela’s constitution increasing presidential emergency powers would jeopardize the protection of fundamental rights at times when they are most needed, Human Rights Watch said today.
The proposed changes would eliminate the constitutional prohibition on suspending due process guarantees during states of emergency. They would also eliminate specific time limits on states of emergency, giving the president de facto power to suspend due process and other basic rights indefinitely.
Human Rights Watch is particularly concerned that these provisions could lead to suspension of fundamental rights in violation of international law, as the proposed amendments would also eliminate the requirement that such restrictions “meet the requirements, principles, and guarantees established in the International Covenant on Civil and Political Rights and the American Convention on Human Rights.”
In a positive step, one of the amendments proposed would expand the existing constitutional prohibition against discrimination to cover several other bases for discrimination, including sexual orientation and political orientation. Yet even this protection would also be subject to indefinite suspension, should the president declare a state of emergency.
“These amendments would enable President Chávez to suspend basic rights indefinitely by maintaining a perpetual state of emergency,” said José Miguel Vivanco, Americas director at Human Rights Watch.
Suspension of Due Process Guarantees
President Hugo Chávez's supporters in the National Assembly originally proposed completely eliminating the constitutional prohibition on suspending due process rights during states of emergency. In response to widespread criticism of this proposal, the legislators modified it, adding language guaranteeing that the right to a defense lawyer and the right to a trial with ordinary judges could not be suspended.
However, this proposal would still allow the president to suspend other fundamental due process guarantees, including the presumption of innocence, the right to be tried by an independent and impartial tribunal, the right against self-incrimination, the right not to be convicted for a non-existent crime, and the right against double jeopardy. In addition, the proposal appears to allow for the suspension of the rights of a defendant to know the charges and have access to the evidence against him.
The suspension of the presumption of innocence, the right against self-incrimination, and other guarantees of a fair trial would be in violation of international law, which prohibits their suspension even in times of emergency or armed conflict.
“The final proposal on due process is as dangerous as the original,” said Vivanco. “The right to a trial means nothing if it’s not a fair trial, and the right to lawyer is small comfort if a court can presume you’re guilty.”
Other Fundamental Rights at Risk
Under the proposed amendment, the constitution would explicitly protect a number of rights from suspension during states of emergency. These include the right to life, the right to personal integrity, the right not to be sentenced to prison terms exceeding 30 years, and the prohibitions against torture, incommunicado detention and enforced disappearance. The right to habeas corpus would also remain unaffected.
Yet the proposed changes would leave open the possibility that a wide range of other fundamental rights could be suspended indefinitely. Both the United Nations Human Rights Committee and the Inter-American Court of Human Rights have made clear that under international law many of these rights are considered so fundamental that countries are not permitted to derogate from their obligations to respect them – even in a state of emergency. These include the guarantee of equality and non-discrimination, the freedom of thought, conscience and religion, and the guarantee against retroactive laws.
The proposed emergency powers would also allow the president to suspend indefinitely the right of citizens to information, a right that is integral to the protection of human rights and accountability.
“Proponents of these amendments insist that this government would never violate these basic rights,” said Vivanco. “But why, then, have they gone to such lengths to empower the president to do so?”
Expansion of the President’s Emergency Decree Power
The proposed changes would greatly enhance the president’s power to impose and maintain the states of emergency in which these basic rights could be suspended.
It would broaden the circumstances in which the president could impose states of emergency, to include not only “catastrophes,” “calamities” and “other similar situations,” but also cases where “a certain and imminent possibility exists for the occurrence of situations capable of originating catastrophes, public calamities and other similar situations.” This is of concern, because, as the UN Human Rights Committee has made clear, “not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation” and would justify restrictions or suspension of protected rights.
The proposal would eliminate the existing time limits on states of emergency, leaving it entirely to the discretion of the president to determine when an “emergency” has ended. Under the proposed amendments, the president would still be required to seek congressional approval for an emergency decree (within an eight-day period), but would not need authorization to extend it. The proposal would also eliminate the power of the National Assembly to revoke the state of emergency.
The reform would also eliminate the requirement that the Supreme Court review the constitutionality of the decree regulating the suspension of rights during times of emergency. Although the proposed amendment indicates that rights should only be suspended “temporarily,” it provides no mechanism for ending the suspension so long as the state of emergency remains in place.
Expanded Anti-Discrimination Protections
One very positive measure in the reform package is an amendment that would expand the constitutional prohibition on discrimination to explicitly cover discrimination on the basis of ethnicity, age, health, sexual orientation and political orientation. The anti-discrimination provision of the current constitution makes specific reference only to race, sex, creed, and “social condition” as protected categories.
The prohibition on political discrimination is particularly welcome given the Chávez administration’s past public endorsements of political discrimination against those who do not share the government’s views. (Last year, for example, Chávez applauded his energy minister’s call for state oil company employees who disagree with the government to give up their jobs. He himself has called for military personnel to do the same.)
However, like other basic rights, the new anti-discrimination guarantees would also be subject to indefinite suspension during states of emergency.