Dr Francisco Dominguez Senior lecturer at Middlesex University, where he is Head of the Latin American Studies Research Group
“A confesion de parte, relevo de prueba”
(Spanish legal expression: “When there is confession, no evidence is required”).
Mexican writer Carlos Fuentes could not imagine how correct he was when he said that the challenge a Latin American writer faced was to produce fiction that was more extraordinary than reality itself.
Venezuela’s Right Wing Opposition has just managed to perform an event that surpasses Gabriel Garcia Marquez’s magic realism: On 18th February 2016, making use of their majority in the National Assembly, they have passed an Amnesty Bill that seeks to provide legal impunity to acts of political delinquency they and their supporters have perpetrated for 17 years. Venezuela’s Right Wing majority in the National Assembly’s ‘amnesty’ bill is not only an admission of guilt for, but also a well organised catalogue of, the political offences they and their supporters have perpetrated since 1999.
The Bill is upfront about what it seeks to amnesty: “acts defined as crimes, misdemeanours or infringements […] and other acts provided for herein.” (Art.1) This Bill is an Opposition’s colossal Freudian slip since with it they, unwittingly, have admitted their guilt of more than a decade and a half of illegal, violent and undemocratic political felonies.
The Amnesty Bill is not yet law, since it needs to go through several constitutional procedures, including being vetoed by President Nicolas Maduro, who has condemned the Bill in the strongest terms. In the highly likely event of President Maduro vetoing it, the Bill will then be referred to the Supreme Court (TSJ) to get it to issue a ruling on its constitutionality. The TSJ can declare the Bill unconstitutional regardless of the size of the Right Wing majority in the National Assembly (for details of what the Opposition majority in the National Assembly can and cannot do read my article in the Huffington Post, Right Wing Majority in Venezuela’s National Assembly: The Constitutional and Political Stakes).
The Amnesty Bill’s Objectives and Scope
The Right Wing Opposition Amnesty and National Reconciliation Bill (Proyecto de Ley de Amnistía y Reconciliación Nacional, in Spanish) makes its stipulations retroactive to 1st January 1999, and in 45 articles, covers all manner of felonies and crimes committed up to the moment it becomes law (which, in the unlikely event of being approved, might be this year, 2016) when would be officially promulgated in the country’s National Gazette (Art.2, p.6). As we shall see below, the political felonies and crimes it covers are comprehensive since the bill’s scope ranges from misdemeanour at a public rally to terrorist acts involving explosives and firearms. The choice of period gives the game away since it includes ALL the illegal, criminal and law-breaking political acts perpetrated since 1999 by Opposition leaders and their supporters throughout the governments of both Hugo Chavez and Nicolas Maduro.
The list of felonies to be amnestied is as long as the acts they have perpetrated, and it correlates neatly with Right Wing Opposition’s efforts to illegally overthrow the democratically elected, constitutional and legitimate government of the Bolivarian Republic of Venezuela. They include criminal acts perpetrated duringgolpista events such as the April 2002 coup d’état; the oil lock-out in 2002-3; the street barricades and street violence (known in Venezuela as guarimba) that accompanied their 2004 recall referendum campaign against President Chavez; the collusion with Colombian paramilitaries to assault the country’s presidential palace and assassinate the president; various other coup d’état attempts (in 2008, 2009 and 2010); the use of guarimba and hoarding of basic consumption necessities, including food items, during the 2007 constitutional referendum; all false reporting; all activities associated with the economic war; the wanton violence, destruction and loss of life of the guarimbas of April 2013 and February-July 2014 associated with the defeat of Henrique Capriles as presidential candidate and La Salida (“The Ousting”) respectively. La Salida was a political campaign led by Leopoldo Lopez, explicitly waged to oust the democratically elected government (See Lopez’s confirmation of this in his own words in Spanish). Plus all acts of violence, including terrorist acts carried out for illegal and unconstitutional political aims.
In its Art.4, the Bill confirms the above with breath-taking eloquence:
Amnesty shall be granted to acts regarded as crimes or misdemeanours when such acts have been or might have been committed for participating, organizing or calling demonstrations, protests, or meetings for political purposes, expressing ideas or spreading information for political motives, or making or promoting actions, proclamations, political agreements or statements deemed to be aimed at changing the constitutional order or the official government, whether or not accompanied by conspiracy actions. In such cases, amnesty shall be granted to the following criminal acts:
a) Incitement to disobey the law, incitement to hatred and crime apology;
b. Incitement to crime;
c. Assault and battery;
d. Violence or resistance to authority, and disobedience to authority;
e. Causing panic in the community or keeping it under distress by the dissemination of false information;
g. Obstruction of public roads with the aim to set up fire and other attacks against passing vehicles;
h. Damaging transportation systems as well as public IT and communication;
i. Destruction or damaging of roads and related infrastructure for public communication;
j. Property damage;
k. Conspiracy and terrorism;
l. Importation, manufacture, possession, supply or concealment of explosives or incendiary devices;
m. Disturbance of public peace;
n. Insulting a civil servant, in its various forms;
o. Use of minors to commit crimes;
p. Arson and other crimes involving danger for the public in general, in various forms;
q. Treason and other crimes against the Nation;
r. Rebellion and other related offences;
s. Mutiny, civil rebellion, treason, military rebellion, incitement to military rebellion, uprising, false alarm, attack and insult to the sentry, disclosure of military secrets, offense to military decorum, misuse of badges medals and military ranks, and theft of items belonging to the Armed Force;
t. Denial of legally due services;
v. Illegal possession and misuse of firearms, and the felony of illegal possession of firearms, illegal possession of a firearm and possession of firearms in public places;
w. Damage to facilities of the National Electric System; and
x. “Other related offences or those that appear closely related to any of the above.” (Amnesty and National Reconciliation Bill, pp. 9-10)
The offences included in the above list are specifically identified as felonies in Venezuela’s Penal Code in Arts. 128, 129, 132, 134, 140, 141, 143, 163, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 238, 254, 255, 256, 257, 272, 273, 274, 275, 276, 277, 281, 285, 283, 286, 287, 288, 289, 290, 291, 292, 296, 296-A, 297, 343, 346, 347, 349, 350, 351, 352, 353, 354, 356, 357, 360, 362, 413, 414, 415, 483, 473, 474, 479, and 506.
Additionally, the ‘amnesty’ includes offences to: Art.37 of the Law Against Organized Crime and Financing of Terrorism; Art.264 on offences against the Law for the Protection of Children and Adolescents; Arts.111, 112 and 113 of the Disarmament and Arms and Ammunitions Law dealing with offences regarding the illicit and illegal use and bearing of firearms; Art.107 of the Law of the Electricity Service identifying deliberate damages to the electricity service; and Arts. 412, 464, 476, 481, 486, 497, 500, 501, 502, 550, 565, 566 and 570 of the Military Justice Code that deals with offences such as military rebellion and instigation to military rebellion.
The above amount to the violation of a staggering total of 82 articles of the Penal Code and other Laws, most of which have to do with political violence. For good measure, and taking advantage of their ‘super majority’, the Right Wing MPs have also included articles of the Penal Code that deal with offences of corruption in the Law Against Corruption (See Arts. 16, 17, 18, 19, 20, 21 and 22 of the ‘amnesty’ Bill).
This comprehensive crimes list, if approved as law, would leave off the hook the whole of the leadership of the Right Wing Opposition (with no exception) that has been centrally involved in 17 years of destabilization; all Opposition’s operatives and shock groups that have carried out vandalic acts and caused dozens of deaths and grave injuries to hundreds of people during the guarimbas; all activities associated with the training, arming and military training of armed groups, and with acts associated with attacks with weapons, explosives, firearms; and destruction of private and private property.
It gets better. The Amnesty Bill also includes acts
• reported as defamation o libel, committed by any citizen, political leader, journalist, media managers or editors, editorial boards or any other person, including images, messages through social media (Arts.8 and 9);
• contrary to the established peace and general order, which occurred between April 11th and 14th, 2002″ (Art.10)
• contrary to the established peace committed in the framework of the nationwide strike and oil strike, declared and implemented form the last months of 2002 until early 2003.” (Art.11);
• related to statements by political leaders on January 23rd, 2014 and subsequent days, through the media and the social networks, in the framework of the proposal called La Salida (“The Ousting”. (Art.12)
• related to the “National Agreement for Transition” signed by Opposition political leaders on February 11th, 2015 and to the public call to sign or support such agreement. (Art.13)
• of “contempt of court regarding laws on injunctions or protections under constitutional remedies…” (Art.14)
• “deemed individual terrorism as described in article 52 of the Organic Law Against Organized Crime and Terrorism Financing, committed in 2014 and related to the plans that facilitated the absconding of persons who had been deprived from freedom due to the events mentioned herein, provided that such acts have not damaged the life and physical integrity of people […]”
• regarded as crimes in accordance with Article 52 of the Organic Law Against Organized Crime and Terrorism Financing in the case of allegedly punishable acts committed during protests or demonstrations in 2014, provided that such acts have not damaged the life or physical integrity of people. ” (Art.15)
Art.7 of the Amnesty Bill (pp. 12-14) lists the political events during which all the offences to be amnestied were perpetrated: 2002 (failed coup d’état); 2003 (oil lock-out); 2004 (recall referendum); 2006 (presidential election); 2007 (constitutional referendum); 2009 (Right Wing Caracas Mayor, Antonio Ledezma, arbitrarily sacking hundreds of Town Hall workers); 2009 (August, demonstration against the government’s Law of Education); 2011 (violent demonstrations in the state of Barinas); 2013 (April, nationwide violent street protests following Opposition’s presidential candidate, Henrique Capriles’ electoral defeat, leading to the death of 13 people, two of them children); and 2014 (February to Julyguarimbas unleashed by Leopoldo Lopez aimed at the ousting – La Salida – of the democratically elected and legitimate government of President Nicolas Maduro, in which 43 people (see details about the victims and how they died) lost their lives, there were over US$15 billion in destruction of private and public property, including the setting on fire to 15 universities, and over 800 people seriously injured). About La Salida, Art.7 contains a list of 23 events during which opposition supporters went on the rampage, acts to be amnestied.
The plot thickens even further with the inclusion in the Amnesty Bill of offences such as drug trafficking, kidnapping, embezzlement (Art.16 & Art.30), corruption, hoarding, black market speculation, economic boycott, fraudulent product adulteration, selling of items off expire day (Art.19), financing of terrorism, illicit enrichment (Art.20), fraud and usury in the selling and construction of private housing, and not paying of taxes (Art.35).
In short, not only there is provision in the Bill for every offence committed by their supporters mainly as a result of violent and destabilizing political activities, but the amnesty is extended to include all manner of economic crimes committed by bankers, entrepreneurs, and financiers most of whom have avoided Venezuela’s justice system by absconding in Miami, Peru, Panama, etc., claiming to be ‘political refugees’.
The Amnesty Bill: a Manual for Golpismo and Impunity
Due to media bias, most people probably believe that the Bolivarian government is animated by an intolerant and sectarian attitude whose authoritarianism inclines it to just punish opponents. This is not correct. On more than one occasion Hugo Chavez issued various amnesties to individuals involved in seditious and illegal actions against his government. Due to media misinformation they also probably think that the Amnesty Bill is actually very popular. It is not: a Hinterlaces poll conducted between 19th and 24th of February 2016 showed that only 9% thought it was a priority to pass an amnesty law).
Likewise, most people probably believe that the supposed intolerant and authoritarian nature of the Bolivarian government is the chief reason for the intense polarization that besets this South American nation. In fact, both Presidents Chavez and Maduro have called upon the Right Wing Opposition on numerous occasions to engage in constructive dialogue. Furthermore, the Venezuelan government has promoted and got support for constructive dialogue with the Opposition through many regional bodies such as MERCOSUR Common Market of the South, UNASUR (Union of South American nations, ALBA (Bolivarian Alternative for the Americas), and CELAC (Commonwealth of Latin American and Caribbean States), just to mention the most important ones.
Upon the announcement by the majority Right Wing in the National Assembly of their intention to pass the Amnesty Bill, Chavista MPs proposed instead the setting up of an all-party Truth and Reconciliation Commission to examine in detail case by case for the whole of the 17 years the Bill seeks to cover. The Commission would, on a consensual basis and after serious and rigorous police, forensic and judicial investigations, determine which case merits a presidential pardon, amnesty or punishment. Chavista MPs stated in unequivocal terms that the Commission would also examine all individuals, members of the security and law enforcement officers who may have perpetrated violent crimes, especially those involving violation of human rights. In no section of the Amnesty Bill, there is any manifestation of contrition for the so many acts of political violence carried out, not a single phrase of apology addressed to the victims.
The out of hand rejection of the Truth and Reconciliation Commission and their doggedly pressing on with the Amnesty Bill, confirms that the Right Wing majority in the National Assembly have no real interest in Reconciliation, even less in the Truth thus squandering a golden opportunity to genuinely bring about conditions for national reconciliation. They preferred to opt for their proposed Amnesty Bill, thus revealing their real aim is not peace but impunity, which, if successful, will encourage more “misdemeanours, offences, infringements, and crimes” in future years. Thus, Venezuela’s most prominent constitutional lawyer, Hermann Escarrá is absolutely right in pointing out that the Amnesty Bill will generate more violence in the country.
It is difficult no to draw the conclusion that instead the Right Wing are keener to use their ‘super majority’ to get away with murder.
The Amnesty Bill is unconstitutional since it contravenes a rather large number of the 1999 constitution’s principles and articles but more importantly, it massively undermines an essential principle of any democracy: the rule of law (estado de derecho in Spanish). Worse still, the Bill includes offences committed by many of the very MPs who are sponsoring and have voted for it. One can go through the list of offences included in the Bill article by article and put the name of prominent Opposition members to many of the specific crimes and violent political events described in the Bill. Thus, for example, Art.7 of the Amnesty Bill, include “university protests and demonstrations, which took place in Merida state, in May 2006”, events during which Nixon Moreno, a high ranking member of the Opposition, was charged with attempted rape against a female officer of the National Guard. Moreno fled to Peru as a “political exile” and there is an Interpol warrant of arrest against him.
Furthermore, it is well known that substantial sections of the Opposition coalition adhere to extreme right wing views and have repeatedly shown their willingness to resort to all manner of political violence. In this regard for 17 years the government has denounced sections of the Opposition for their collaboration and utilization of Colombian paramilitaries in Venezuela territory.
In fact, the youngest MP of the National Assembly, Robert Serra (27) and his assistant were assassinated by three Colombian paramilitaries who are now in prison after being extradited by Colombia’s President Juan Manuel Santos at the request of Venezuela’s law enforcement authorities. Both Serra and his assistant were stabbed to death in their own house and the paramilitaries declared they have used such a brutal form of killing because its silent manner would not alert the neighbours.
Additionally, there are the gory events leading to the dismemberment of the body of Liana Aixa Argueta by two individuals linked to Venezuela’s extreme right wing political parties, who confessed to have received military training in clandestine camps in Venezuela and Colombia by opposition retired general Antonio Rivero (see details in Miami Diario).
To all of the above, it must be added that several of the 43 of people who died during the La Salida guarimbas (February to July 2014) did so from shots in the head fired by professional marksmen. These deaths were the handy work of highly trained professionals.
Additionally, the Amnesty Bill contravenes many international protocols and conventions on human, social and political rights to which Venezuela is signatory to. Hermann Escarrá pointed out that the Amnesty Bill contravenes, among many others, the Inter American Bill of Human Rights, international protocols of civil and political rights, on rights of the child and so forth.
In conclusion, the Amnesty Bill is not at all a mechanism for reconciliation as claimed by the Bill (pp. 1-7) but it is actually an impunity law for political crimes against the nation, the constitution, the country’s stability, its laws, its people, its institutions, its government, its installations, its military institutions, its civil servants, its infrastructure and much more. The Bill is actually a Manual for Golpismo and Impunity, but above all, an admission of guilt of 17 years of political delinquency.