CHAVEZ DICTATOR, SAYS ALLAN BREWER CARIAS

Allan Brewer Carias, Venezuelan Constitutionalist.

In a conference given at the Duquesne University School of Law, Pittsburgh, in November 2008, Venezuelan Constitutionalist Allan Brewer had this to say, to explain how the Hugo Chavez government had become an authoritarian regime without effective separation of powers while keeping up some pretenses of legality:
“In any system of separation of powers, even with five
separate branches of government (Legislative, Executive, Judicial,
Citizen and Electoral), in order for such separation to become effective,
the independence and autonomy among them has to be assured in
order to allow check and balance, that is, the limitation and control of
power by power itself. This was the aspect that was not designed as
such in the 1999 [Venezuelan] Constitution, and notwithstanding the
aforementioned penta separation of powers, an absurd distortion of
the principle was introduced by giving the National Assembly the
authority not only to appoint, but to dismiss the Judges of the Supreme
Tribunal of Justice, the Prosecutor General, the General Comptroller,
the People’s Defendant and the Members of the National Electoral
Council (Articles 265, 279 and 296); and in some cases, even by simple
majority of votes”.
In other words, although there was a theoretical separation of powers built into the 1999 Venezuelan constitution, the National Assembly, totally controlled politically by Hugo Chavez and mostly through the votes of a simple majority, could name or remove the members of all other powers. As Dr. Brewer says, it became impossible for the powers to be autonomous or independent. In fact, whenever a judge decides against the will of the Executive (Chavez) he, she is removed. This has led, adds Brewer, to a total absence of fiscal or audit control. In particular the Comptroller’s office is more concerned with the disqualification of opposition candidates and political dissidents than with its proper duties.
Dr. Brewer illustrates how the constitution has been further perverted:
“independently of the constitutional provisions
regarding the possible dismissal by the National Assembly of the
Heads of the non elected branches of government, and its distortions,
one of the mechanisms established in order to assure their
independence, was the provision in the Constitution of a system to
assure that their appointment by the National Assembly was to be
limited by the necessary participation of special collective bodies called
Nominating Committees that must be integrated with representatives
of the different sectors of society (arts. 264, 279, 295). Those
Nominating Committees are in charge of selecting and nominating the
candidates, guaranteeing the political participation of the citizens in
the process.
Consequently, the appointment of the Justices of the Supreme
Tribunal, of the Members of the National Electoral Council, of the
Prosecutor General of the Republic, of the People’s Defendant and of
the Comptroller General of the Republic, can only be made among the
candidates proposed by the corresponding “Nominating Committees,”
which are the ones in charge of selecting and nominating the
candidates before the Assembly. These constitutional previsions seek
to limit the discretional power the political legislative organ
traditionally had, to appoint those high officials through political party
agreements by assuring political citizenship participation.
Unfortunately, these exceptional constitutional provisions have
not been applied, due to the fact that the National Assembly during the
past years, also defrauding or perverting the Constitution, has
deliberately “transformed” the said Committees into simple
“parliamentary Commissions” reducing the civil society’s right to
political participation.”
Although the constitution stipulated a mechanism to incorporate civil society into the selection process of the members of the different powers, this mechanism was never implemented. By integrating the “committees” with parliamentary members loyal to Chavez the selection process has become a fraud.
In relation to the judiciary, says Dr. Brewer, the fraud is complete:
“The process began with the appointment, in 1999 of new
Magistrates of the Supreme Tribunal of Justice without complying with
the constitutional conditions, made by the National Constituent
Assembly itself, by means of a Constitutional Transitory regime
sanctioned after the Constitution was approved by referendum. From
there on, the intervention process of the Judiciary continued up to the
point that the President of the Republic has politically controlled the
Supreme Tribunal of Justice and, through it, the complete Venezuelan
judicial system”.
The fraud is so shameless that one magistrate of the Supreme Tribunal of Justice, Fernando Vegas Torrealba, made a fully paid 2006 tour of some 12 cities in the United States extolling the virtues of the strongman and of the “revolution”. I attended the one he made at the American University School of Law, in front of a reduced number of U.S. law students who were amazed to hear a magistrate of the “supreme” court converted into a cheer leader for a despot.
The selection of the magistrates is controlled by Chavez, as admitted by the president of the selection committee of the National Assembly: “Although we, the representatives, have the authority for this selection, the President of the Republic was consulted and his opinion was very much taken into consideration.” He added: “Let’s be clear, we are not going to score auto-goals. In the list, there were people from the opposition who comply with all the requirement”. Not one was selected.

As a result, says Dr. Brewer: “This configuration of the Supreme Tribunal, as highly politicized and subjected to the will of the President of the Republic has
eliminated all autonomy of the Judicial Power and even the basic
principle of the separation of powers, as the corner stone of the Rule of
Law and the basic of all democratic institutions”
As a result of all these maneuvers and stratagems Chavez has become a dictator. Dr. Brewer provides other example:
“during July and August 2008, the President of the Republic, according to the
powers to legislate by decree that were delegated upon him by his
completely controlled National Assembly on January 2007,
sanctioned 26 very important new Statutes with the intention of
implementing, of course in a fraudulent way, all the constitutional
reform proposals that were rejected by the people in the 2007 December referendum.
Unfortunately, even being all-unconstitutional, those Decree Laws have been enacted and will be applied without any possibility of control or judicial review".
Even a geologist such as myself can see that this represents a true coup d’etat, done in full daylight, under the noses of the hemispheric community of nations, where Chavez is still considered a democratic president by leaders such as Lula da Silva, Jose Miguel Insulza and Michele Bachelet, just to name a few.
In a speech given in August 28, 2008, Chavez had this to say in his traditional elegant style:
“I warn you, group of Stateless, putrid opposition.
Whatever you do, the 26 Laws will go ahead! And the other 16 Laws,… also.
And if you go out in the streets, like on April 11 (2002)… we will sweep you in
the streets, in the barracks, in the universities. I will close the opposition media;
I will have no compassion whatsoever …This Revolution came to stay, forever !
You can continue talking stupid thinks … I am going to intervene all
communications and I will close all the enterprises I consider that are of public
usefulness or of social interest! Out [of the country] contractors and members of Fourth
Republic corrupt people!
I am the Law … I am the State!!
(See the reference of this speech at the blog of Gustavo Coronel, http://www.lasarmasdecoronel.blogspot.com/, posted October 15, 2008).
Is this the speech of a democratic leader? Is this the speech of a mentally sane leader?
Dr. Brewer ended his speech at Duquesne quoting Teodoro Petkoff’s article on the Harvard Review for Latin America, Fall 2008, where he said:
“Chavez controls all the political powers. More that 90% of the Parliament obey
his commands; the Venezuelan Supreme Court, whose number were raised
from 20 to 32 by the parliament to ensure an overwhelming officialist majority,
has become an extension of the legal office of the Presidency… The Prosecutor
General’s Office, the Comptroller’s Office and the Public Defender are all
offices held by “yes persons,” absolutely obedient to the orders of the autocrat.
In the National Electoral Council, four of five members are identified with the
government. The Venezuelan Armed Forces are tightly controlled by Chavez.
Therefore, form a conceptual point of view, the Venezuelan political system is
autocratic. All political power is concentrated

in the hands of the President.
There is no real separation of Powers.”
This is what we have in Venezuela today. This is what Venezuelans are up against. No only Venezuelans but the hemispheric community of nations.
As lawyers would say: I rest my case.