Smoke and Mirrors: An Analysis of Human Rights Watch’s Report on Venezuela
Saturday, October 18, 2008
President Chavez managed to hand Human Rights Watch a major public relations victory with his recent expulsion of its America’s Director José Miguel Vivanco and its Deputy Director Daniel Wilkinson. With the expulsion, which Chavez ordered because Vivanco and Wilkinson are foreigners and did not have a visa that allowed them to engage in political or professional activity in Venezuela, Venezuela seemed to prove Human Rights Watch’s point, that the Chavez government does not tolerate dissent. Whether the expulsion was justified is a distraction from the larger issue, though, which is whether the report, “A Decade Under Chávez,”[i] which Human Rights Watch (HRW) presented in Venezuela on September 18, is justified.
Another distraction, this time put forward by defenders of the Chavez government, is whether HRW is an agent of the U.S. government and of imperialism. Apparently false arguments about Vivanco’s past are brought up, among other things.[ii] This, however, also serves to distract from a serious and accurate analysis of whether what HRW writes about Venezuela is valid and worth paying attention to.
Writing an analysis of the HRW report is a challenge, though, because it is tempting to respond to each and every point, which would make the response almost as long as the 236-page report itself. I will thus try to refrain from responding to each and every accusation and will discuss only the most important ones.
In short, the report raises a few problems with regard to the protection of political rights in Venezuela, but the few places where it is on target are almost completely drowned in a sea of de-contextualization, trumped-up accusations, and a clear and obvious bias in favor of the opposition and against the government. I will examine each of HRW’s criticisms in the same order as the report itself, which deals with political discrimination, the judicial system, mass media, labor unions, and civil society organizations.
The Report in Context – Meta-Criticism
Before we begin the analysis of the report itself, though, it makes sense to take a brief look at some of the over-arching problems with the report.
First, the report gives the impression of being about human rights violations in general in Venezuela (the subtitle is: “Political Intolerance and Lost Opportunities for Advancing Human Rights in Venezuela”), but actually narrowly focuses on some political rights (not even all political rights, leaving out electoral rights, for example), to the complete exclusion of social and economic rights. The report itself justifies this narrow focus by saying that the report “does not address all the pressing human rights issues facing [Venezuela] today, many of which pre-date the Chávez presidency. Rather, it focuses on the impact that the Chávez government’s policies have had on institutions that play key roles in ensuring that human rights are respected: the courts, the media, organized labor, and civil society.”[iii] Not only does this statement imply that there are far more human rights violations in Venezuela than the ones cited in this report, but it also implies that the violations it does discuss are the most important ones to focus on because they “ensure that human rights are respected.”
Such a one-sided focus completely leaves out any consideration of the well-established human rights norm that human rights are “indivisible.” That is, all of the human rights listed in the Universal Declaration of Human Rights (UDHR)—whether political, economic, or social—are equally important.[iv] In other words, had HRW taken economic and social rights also into consideration, it would have to conclude that the progress made in these areas has been tremendous during the Chavez presidency. Also, if one were to take economic rights seriously, it would be almost silly to claim that attention to courts, media, labor unions, and civil society are more important, since people who do not have their basic economic rights guaranteed, and are thus too busy finding food and shelter, are generally incapable of taking advantage of these institutions. HRW’s emphasis on political rights thus reflects its bias towards the better off, who are already able to enjoy their economic and social rights without restriction.
Second, throughout the report HRW fails to present incidents or policies in their proper context, which makes it more difficult to understand how and why certain things happen in Venezuela. As a result, by excluding this context, readers interpret the issues that the report discusses through the lens of their own prejudices or the false media impressions of Venezuela, such as the widespread images of Chavez the “caudillo” or “dictator” of Venezuela.
Third, as almost all critics of the report have noted, the report was launched for maximum effectiveness (with an embargoed press release) just two month before Venezuela’s November 23rd regional elections. This is the third time that HRW releases a major report shortly before an electoral contest (the first being in June 2004, just before the presidential recall referendum and the second in late 2007, just before the constitutional reform referendum).[v] Vivanco should thus not be surprised if HRW is suspected of timing its reports to influence Venezuelan electoral contests.
Finally, this is one of the longest (other than its annual reports) special reports that HRW has done on any one topic or country.[vi] Vivanco says that the reason for this is that, “Everyone in the world has an opinion about Venezuela. There are very many and very strong opinions, but it is difficult to find concrete facts. We wanted to make the most faithful picture of what is happening here so that the world would know it.”[vii] In other words, it would seem that the seriousness of human rights violations in Venezuela is not the real motivation for this book-length report, but rather it is the controversy surrounding Venezuela that motivated HRW to conduct this two-year investigation.
For a human rights group to make such a massive investment into a project (just how much did it cost and who paid for it?) not because of the seriousness of human rights violations, but because of the lack of consensus seems odd. This circumstance adds credence to one blogger’s sarcastic remark (BoRev.net) that apparently Human Rights Watch believes that it’s original mission has been accomplished, of rooting out torture, forced disappearances, and political imprisonments and that now it can afford the luxury of focusing on weak judiciaries and political discrimination in the hiring processes for civil service jobs.
We have yet to see a comparably long report on human rights violations in Colombia, Mexico, or the U.S. war on terror. More than that, there seems to be a political motivation for the report, based on Vivanco’s statement, “We did the report because we wanted to demonstrate to the world that Venezuela is not a model for anyone…”[viii] Certainly, if the Venezuelan government were a systematic violator of human rights, no one would say that such practices should be a model. Rather, the model that Chavez and his supporters defend (and Chavez himself has always said that every country should find its own path) are the policies that go against free market capitalism and in favor of redistribution of wealth and of political power.
These meta-criticisms of the report aside, it is nonetheless worthwhile to examine the issues it raises with respect to Venezuela’s human rights situation. One just needs to keep in mind that in practically all of the areas it does not examine there have been tremendous advances, whether, for example, in education, in reducing poverty, or in including the previously excluded (such as women and indigenous and afro-Venezuelan populations). One specific measure of this progress is the fact that Venezuela is one of the few countries in Latin America to be on track for reaching the Millennium Development Goals.[ix]
Political Discrimination – Decontextualizing Problems
All of five sections of the HRW report exhibit three consistent problems that fundamentally distort the final result. First, they each display a lack of contextualization of the problems they discuss. Second, they represent what some have called trumped-up accusations in that they accuse the government of definite wrongdoing in areas where the facts of the matter are not that clear or where relatively minor problems are turned into major issues. Third, and closely related to the second, each section brings up issues where the interpretation of events relies almost exclusively on that of the opposition. Finally, because there is so much overlap in the issues the report discusses, there is a tremendous amount of repetition, thus giving the impression that there are far more human rights problems than is actually the case.
Beginning with the section on political discrimination, this section is perhaps the most decontextualized. The main issue that HRW raises here is the use of the so-called “Tascón list,” which National Assembly member Luis Tascón created when he posted the names of the signers of the petition for a presidential recall referendum on his personal website. The stated purpose of the list was to give individuals who did not sign the petition, but who were placed on the list against their will, an opportunity to have their name removed from it. The list, however, ended up being used by government officials to screen job applicants, to make sure they weren’t hiring opposition sympathizers.
The HRW report does make a token effort to provide historical context by pointing out that in the pre-Chavez era, governments regularly discriminated against political opponents in the hiring process for the public administration.[x]Also, it does state Tascón’s intention for publicly posting the list (although it expresses doubt that this was the real reason, saying this was the “ostensible” reason). However, the report completely skips over the extent to which opposition supporters in the public administration were involved in sabotage. Such information might be difficult to come by, but if one were to speak to any departmental director in the public administration, they could tell many stories of such occurrences. Certainly, ideally a minister or vice-minister or departmental director ought to fire those engaged in sabotage, following the formal procedures for such a case. This, however, is almost impossible because of restrictive labor laws in the public sector and because it can be extremely difficult to prove an on-the-job slow-down.
In other words, while the use of such lists is to be condemned (and HRW admits that Chavez and Tascón have condemned it) and prohibited, it is at least understandable why many government officials have used it nonetheless. If a department director faces the choice between having an apolitical hiring process, but an unmanageable department because some opposition supporters are subtly sabotaging, versus illegally politicizing the hiring process and thereby having a better functioning department, most managers will opt for the latter option.
In addition to this de-contextualization of the circumstances in which the Tascón list (and later the Maisanta program) was applied, HRW fails to show how systematic their application actually is in Venezuela. While they list a few cases,[xi] these pale in comparison to the total number of employees in the public administration.[xii]
The most prominent case to which HRW refers, though, is without any merit whatsoever, which is the case of the state owned oil company PDVSA. Here HRW cites two incidents, the oil industry shutdown of December 2002, where 19,000 PDVSA employees (about half the workforce) were fired for their participation in the shutdown, and an incident in which PDVSA president Rafael Ramirez told a gathering of PDVSA managers in November 2006 that he would not tolerate any opposition supporters in the management.
By calling the two-month oil industry shutdown, which started in December 2002, “legitimate strike activity,” HRW shows quite clearly that its sympathies lie with the opposition. For everyone who was present in Venezuela during that extremely stressful period and who saw the daily “strike reports,” it was more than clear that the one and only demand of the strikers was Chavez’s resignation. They clearly hoped that Chavez would resign if they could bring Venezuela’s oil dependent economy to its knees. Indeed, the strike cost the country anywhere between $10 and $20 billion, drove unemployment to an unheard of high of 22%, and caused the economy to shrink by 29%.
The only reason HRW refers to this oil industry shutdown[xiii] as a legitimate strike is because it relies on a ruling of the ILO’s Freedom of Association Committee, which claimed to have found that the PDVSA “strike” also involved labor-related demands. Apparently opposition labor leaders managed to convince the ILO committee of this. However, even if there were some labor-related demands (they were not even stated in the ILO decision), they were not known by most Venezuelans, not one of PDVSA’s three main labor unions supported the “strike” (even though the leadership was otherwise sympathetic to the opposition) and the only message anyone ever got during the “strike” was that it was to force Chavez’s resignation.[xiv]
With the fig leaf of the ILO’s hopelessly misguided ruling, HRW can now claim that the Chavez government engaged in illegal political discrimination and firing against PDVSA employees. It bolsters its case with another fig leaf, which is PDVSA President Ramirez’s 2006 demand that all PDVSA managers should be supporters of the Chavez government. However, HRW claims that this demand was made of all PDVSA employees, when in fact it was made only to the managers.[xv] By failing to make this crucial distinction HRW can again claim that political discrimination is a government policy. It should not come as a surprise that a company president demands that all of his managers are government supporters when the company is still recovering from a debilitating political strike. By interpreting Venezuelan events from the perspective of the more right-wing elements in Venezuelan politics, HRW clearly demonstrates that its sympathies lie with the particularly anti-democratic and ruthlessly anti-Chávez sectors of the Venezuelan opposition.
HRW then goes on to list several concrete cases where PDVSA workers were fired apparently due to their political beliefs. While such actions, if true, are definitely wrong, these few instances again do not prove that PDVSA is engaged in systematic political discrimination. For every politically motivated firing, PDVSA employees can point to an opposition supporter working at the company.[xvi] As HRW correctly points out, the official position against political discrimination was reaffirmed in a July 2007 memo (p.33).
Judicial Independence – A Contradictory Analysis
The analysis of the next area that HRW examines, Venezuela’s judicial system, is riddled with contradictions, which undermine the overall claim that Venezuela’s judiciary is not independent of the executive. The main critique here is that by passing a new Supreme Court law in 2004 the Chavez government managed to “pack and purge” the court and with that to politicize all the courts, since these are subordinated to the Supreme Court. However, not only does HRW again give no credence to the official reasons for which the “court-packing law” (as they call the law in the language of the opposition) was passed, throughout the report HRW cites cases where the supposedly executive-dependent court system made decisions against the Chavez government or its supporters.
Again, HRW provides some badly needed historical context by briefly describing the judiciary prior to the Chavez presidency, which it calls “bankrupt” due to the rampant corruption in the system. Also, it cites a 1998 UN Development Program survey, which found that only 0.8% of Venezuelans had confidence in the judiciary. Oddly, a brief review of HRW reports on Venezuela during the pre-Chavez era finds not a single report was on the judiciary of the time.
Also, HRW fails to make any meaningful comparison between this “bankrupt” pre-Chavez judiciary and the current Chavez-era judiciary. An examination of survey data, though, finds that Venezuelans evaluate their judiciary quite favorably compared to the rest of Latin America. According to Latinobarometro, only 38% of Latin Americans evaluate in their country’s respective judiciary systems as doing “good” or “very good” work, while Venezuelans respond positively 52% of the time.[xvii]
Despite this positive evaluation compared to other countries, the HRW report is unrelenting in its criticism of the Chavez-era judiciary. HRW notes that the 2004 Supreme Court law that allowed the addition of 12 new judges (hence the “packing” of the court) was preceded by the court’s momentous decision to exonerate four of the main coup organizers with the claim that there was no coup in April 2002, only a “vacuum of power.” The report, though, dismisses the importance of this decision when it refers to the supposedly far greater danger the new pro-Chavez balance of power represents in the Supreme Court. That is, it ought to be a valid consideration, which is a graver threat to democracy, a Supreme Court that condones a coup attempt (which dissolved the Supreme Court too, among other institutions) or a new court, dominated by Chavez sympathizers. Clearly, HRW endorses the former.
HRW does raise one valid point, though, in this discussion, which is the danger that the new Supreme Court Law makes removing sitting judges too easy. That is, while previously an impeachment procedure required a two-thirds majority on the National Assembly to vote for such an impeachment, the new law effectively lowers this requirement to a simple 50% majority in special circumstances. This could undermine the court’s independence sometime in the future when a party has a simple majority, but no two-thirds majority in the National Assembly (AN) (currently Chavez supporters control almost 90% the seats in the AN).
However, HRW manages to bury this important point in more decontextualization when it argues that the so-called packing of the Supreme Court led to some sort of “altered” composition of the entire judiciary because the new majority on the court used its power to presumably pack all of the other courts (p.49). What HRW fails to mention is that with the ten to ten vote split between opposition and Chavez supporters on the Supreme Court, the court was completely paralyzed in its effort to reform the judiciary.
The judicial reform process had begun in 2000 and was interrupted in late 2001 when Luis Miquilena, Chavez’s minister of the interior and justice, who had helped appoint most of the judges, switched over to the opposition. Many of the judges he had appointed also switched sides, which is why ten voted against the indictment of four of the coup organizers. It was only once the court’s deadlock was removed that the judicial reform process could proceed.
The HRW report is actually hypocritical when it complains that the new court proceeded to appoint new permanent judges, replacing a large number of temporary judges. In its 2004 report on the new Supreme Court law HRW specifically criticized the judiciary for not making more progress on the court reform.[xviii] Then, with this new report, it criticizes the judiciary for proceeding with the reform, a crucial step of which was the replacement of temporary judges.
HRW then cites a few cases where the Supreme Court failed to rule against the Chavez administration, such as its failure to rule on whether the 2004 Supreme Court law is constitutional, whether the Constitutional Reform Proposal of 2007 was constitutional, whether the rights of the TV station RCTV were infringed when it didn’t have its broadcast license renewed, and whether the National Electoral Council is required to supervise union elections. Rather than actually ruling in favor of the Chavez government, the court has in each case merely failed to definitively rule one way or the other. However, if one considers these rulings together with the different rulings in favor of the opposition, which the HRW report itself cites, these arguments lose their effectiveness.
The Media – Making a Mountain out of a Molehill
In the section on the Chavez government’s relationship with the media, the HRW report exemplifies its success at trumping up charges against the government. It lists a wide variety of prominent cases against prominent journalists, most of which have been resolved in favor of the journalist or were dismissed. Also, it cites supposedly repressive regulation of the broadcast media that falls well within the standard practices of most other Latin American and Western countries. Finally, it claims that the Venezuelan government is restricting pluralism in the media while at the same time contradicting itself when it concedes that more people than ever have access to the media.
Unlike the previous sections, where there was at least a token attempt to provide some historical context from the pre-Chavez era, this time there is no such information. If the report had provided such historical background, HRW would have been forced to admit that freedom of speech in Venezuela is in a better situation today than it ever was before Chavez, when there was far less pluralism of opinion in the mass media. Also, for example, under earlier presidents, such as Carlos Andrés Perez (1989-1993), there was an actual censorship board that reviewed newspapers before they were published and forced papers to publish blank space whenever an article was deemed too sensitive for the government.[xix]
The report then gives the impression that it is president Chavez’s fault that the media have become so polarized in Venezuela, by falsely claiming that “under Chavez” the state television channel VTV “has been as partisan and biased as its private counterparts” (p. 69). However, VTV has always been an explicitly pro-government TV channel, long before Chavez became president. In other words, the report gives the implicit impression that VTV became politicized only with Chavez, when in actuality it has always been an explicitly pro-government channel. The same goes for the report’s false suggestion that the simultaneous broadcast of government messages on all radio and TV stations is an invention of the Chavez government, when in actuality Venezuelan presidents long before Chavez also made use of this power.[xx]
The report further criticizes Chavez’s “demonizing” (p.72) of his opposition with harsh language, completely leaving out that the opposition just as much demonizes Chavez and that Chavez was responding in kind to his critics. HRW then suggests that it was Chavez’s harsh language that was to blame for the incidents of physical aggression against members of the private media, completely leaving out that the incidents the report cites occurred during a time of intense political polarization (2003), in which violence between sympathizers from both sides had been escalating. This is no excuse for such violence, but it is important to understand the context in which these incidents took place.
Also, HRW correctly points out that the Chavez government has launched several new state TV stations (for the National Assembly – ANTV, community programming – Vive, continental programming – Telesur, and cultural programming – Tves), as if this represented some sort of threat to free speech. It then goes on to admit (in a footnote, though) (p.73), that despite this proliferation of a diversity of state TV channels, the audience share of these remains far below that of private channels. In the interest of objectivity, it would have behooved HRW to also state that despite the increase of state channels, the vast majority of TV channels in Venezuela are privately controlled.
Presumably HRW did not mention the large number of private channels because it believes that such private control has become irrelevant in light of recent legislation to regulate radio and television broadcasters. According to HRW, these have been driven to self-censorship due to the stiffening of penalties for the existing prohibition against disrespecting high government officials (in existence for over 50 years) and the new law for social responsibility in radio and television.[xxi]
As evidence for this supposed intimidation HRW cites how two of the major private television stations, Televen and Venevision moderated their editorial line and became less confrontational towards the Chavez government. Instead of interpreting this as an effort to become more responsible and to keep from losing the 60+% of the population that supports Chavez, HRW is convinced that the only reason for this switch are the defamation laws that have always been on the books and have practically never been applied and the social responsibility law that also has so far not resulted in a single closure or even fine. By interpreting these stations’ reactions in this way and in no other, HRW implies that the stations want to be polarizing and irresponsible. More than that, the HRW position implies that it would be better if Televen and Venevision had not changed their editorial lines towards more balance and moderation.
Court Cases Against Journalists
Of the ten exemplary court cases against journalists that HRW examines, six are for libel or related issues. By raising these as free speech issues HRW implies that charging a journalist with libel is somehow illegitimate, even though HRW also says it is not opposed to libel laws in principle. Only four of the ten cases, though, resulted in a guilty verdict, whereby only one had to pay a fine[xxii] and two received suspended sentences, one had to apologize, and only one had to serve a prison sentence.[xxiii] Three of the cases were dismissed or never went to trial and three remain open as of the writing of the HRW report.
With such a mixed record of results, it takes an almost paranoid imagination to believe that the government is systematically and successfully persecuting critics with the collusion of a supposedly executive-dependent judiciary—especially if you consider that Venezuela’s newspapers and airwaves feature hundreds of journalists every day that attack Chavez, his ministers, and his programs. Rather, the more sensible interpretation is that occasionally some journalists overstep the bounds of journalistic ethics and are prosecuted and found guilty and then there are some isolated cases where prosecutors go too far and go after journalists who have done nothing wrong, in which cases the courts manage to find in favor of the defendants. And in some cases (only one it seems, though; the case of Francisco Usón), a court reaches a bad verdict. This is the record of a normal country that does what it can to balance the interests of the public and of private individuals, not of a country that is stifling freedom of speech, as HRW is intent to imply.
Social Responsibility Law
Next, the HRW report discusses the social responsibility law, where it once again completely omits any relevant context to make sense of why this law was passed. That is, prior to the law’s passage in late 2004 there was a near regulatory vacuum with regard to broadcasting regulations. The vehemently oppositional private TV media took great advantage of this vacuum in 2001 to 2003 when it broadcast a constant stream of programming intended to incite an uprising against the president. Twice this incitement had some effect, such as during the April 2002 coup attempt and during the December 2002 oil industry shutdown.
It was in the aftermath of these harrowing events[xxiv] that the media law was passed. Still, it is not unreasonable of HRW to argue that this law is flawed for two main reasons. First, some of the activity that it prohibits (such as incitement) is poorly defined, thus leaving the door open to abuse. Second, it does not provide for a truly independent regulatory body that could impartially rule on infractions against the law.
Having said that, though, the HRW goes completely overboard trying to make these points and in suggesting that Venezuelan law gives the Venezuelan government “unlimited” (p.93) power to restrict freedom of speech. First of all, the powers that the Media law gives the government are protected against abuse by the constitution and by the Supreme Court (which, indeed, HRW seems to believe is worthless). Second, the law itself does not give such unlimited powers at all, as a close reading of the law shows.
HRW goes on to claim that just because Chavez and several other government officials considered some opposition demonstrations and an electoral boycott to be part of preparations for a new coup, these actions could be classified as incitement and thus banned from television. Even if some government officials followed that line of thinking, it is clear that no one in a position where it could have been applied thought so. Here HRW is trying to impute a variety of dangers into situations that are completely removed from Venezuelan reality.
Finally, with regard to the case of RCTV, HRW’s main criticism here is that RCTV’s right to due process was violated when its broadcast license was not renewed and another private station’s license, Venevision’s, which expired at the same time, was renewed. In an abstract sense it is correct that two similar stations were treated differently, which makes it plausible that the difference in treatment is rooted in the different politics of the two stations.[xxv]
However, first, nothing in Venezuelan law (which pre-dates the Chavez presidency) states that a public hearing process is required for the renewal of broadcast licenses. Rather, it is entirely up to the (democratically elected) executive to decide who is to have broadcast licenses. Such a process might be flawed from the perspective of maintaining minority groups’ access to the airwaves, but it does not mean that in an ideal legal situation, which would protect minority group access to the airwaves, RCTV would have kept its license. As a matter of fact, in such an ideal situation any station that helped organize a coup would have lost its license a long time ago.
Second, HRW simply dismisses all of the government’s arguments for why Venevisión and RCTV were treated differently. The two main reasons were that RCTV had violated the Social Responsibility Law far more often than Venevisión and that it occupied a wavelength that was ideally suited for a new public television channel. While it is true that the argument for a new public television channel came in the last minute and thus was somewhat ad hoc, it is legitimate to ask which type of station is more important, no matter when the question is raised. If faced with a choice between broadcasting a private channel that pursues only the interests of its private owners versus broadcasting a public channel that broadcasts in the public interest because it is publicly owned and controlled by a democratically elected executive (such as TVES, which replaced RCTV), then it is not too far-fetched to argue that the latter is more important.
In an interesting footnote the HRW report cites how balanced the Venezuelan media actually are, which undermines the overall gist of the entire section that the government has supposedly “tilted” media coverage in its favor. That is, according to a study conducted by the Jesuit-run institute Centro Gumilla (which tends to be anti-Chavez), media coverage of the constitutional reform referendum “the coverage of RCTV International and Globovisión was equally biased in favor of the NO vote. The three stations with the most balanced coverage were Venevisión, Televen, and Channel 1.” (fn. 324, p.117) TVES and VTV, the two state channels, were biased in favor of the YES vote. If one adds together the audience share of each of the three different types of broadcasters, the YES and NO channels each have about the same audience share (around 15-20% each) and the largest segment of viewers tends to watch the stations with balanced coverage (around 50-60%).
In other words, if balance and pluralism are the main goals for a country’s broadcasting landscape, then Venezuela comes closer to this goal than most countries do. This is even more so the case if one also takes the HRW report’s very positive analysis of the expansion of community media in Venezuela into consideration. (p.121-125)
Organized Labor – Siding with Corrupt Union Bosses
In the name of freedom of association, HRW ends up blatantly defending one of Latin America’s most corrupt union movements. The HRW report briefly concedes that prior to Chavez the freedom for labor to associate was quite restricted due to the nearly total control governing parties had over the union movement, fraudulent elections, corruption, and legal restrictions on strike activity. However, once again HRW jumps directly from this extremely bad state of affairs to implying that the situation of organized labor is worse now under Chavez than it has ever been.
HRW claims, for example, “The government has systematically flouted its obligations under the conventions of the International Labour Organization.” (p.134) While the report repeatedly refers to ILO resolutions about the impermissibility of state interference in labor organizing and about how the PDVSA strike was supposedly a legitimate strike, it completely ignores the ILO’s recent finding of June, 2008, that Venezuela does not violate labor union freedom, thus displaying its highly selective usage of sources.[xxvi]
In other words, nothing could be further from the truth that Venezuela “systematically flouted its obligation” with regard to union freedom. It only looks that way if one is convinced, as HRW seems to be, that the old labor movement is the legitimate labor movement of Venezuela and that any effort to clean up this miserable state of organized labor represents an attack on the freedom to organize. HRW raises four criticisms to make this point – let’s take a look at each one in turn.
State supervision of union elections
HRW repeatedly makes the claim that the “Venezuelan government” “intervenes” and “interferes” in union elections because the “the government” says it has to certify such elections. HRW also claims that the Chavez government is “routinely violating workers’ rights, openly rejecting the notion that unions should be free from state interference…” (p.135)
Leaving aside for the moment this highly tendentious description of labor freedom in Venezuela, it is extremely misleading to characterize the union certification process in this way. First of all, it isn’t “the government” that supervises and certifies union elections, but the National Electoral Council (CNE), which is a completely independent branch of the executive branch in Venezuela. No “packing” or “purging” of the CNE is possible (if it were even remotely possible, HRW would no doubt have written a report on it by now) without modifying the constitution.[xxvii] Of course, since the opposition stupidly enough boycotted the 2005 National Assembly elections, it could not participate in the nomination process, which, unlike the Supreme Court, requires a two-thirds majority for appointing members to the CNE.
Second, to call supervision and certification an “intervention” in the union election process is a stretch. As long as the elections are free and fair, the CNE has to approve them. It has yet to be shown that the CNE has not certified a fair election.
Here too, HRW completely ignores the relevant background, of Venezuela’s history of undemocratic or fraudulently elected labor union leadership. It is precisely due to this history that labor union dissidents, several years before Chavez’s election (HRW mentions this in a footnote, fn. 441, p.151) proposed that the electoral council supervise union elections. It is nothing unusual for governments to require and supervise union elections.
HRW claims to have evidence, though, that the CNE simply did not respond to requests for supervising union election processes, thus making it impossible for the union to be certified. However, apparently HRW never even tried to contact the CNE, to get its side of the story. According to María Padrón, the CNE’s Director of Union and Professional Association Affairs, “Absolutely no representative of Human Rights Watch established contact with this electoral body [the CNE].”[xxviii] If HRW had, it would have been able to formulate a far more accurate account of how the CNE handles union elections, rather than implying that this independent body is somehow intentionally sabotaging opposition-oriented unions.
For example, HRW claims that, “the required intervention of the CNE denies workers one of the most basic safeguards of union autonomy: the right to elect their representatives in full freedom.” (p.144) According to the CNE, though, this is not an “intervention” but a supervision because it does not actually carry out any of the electoral procedures.[xxix] Rather, an electoral commission of the union itself organizes the election. The CNE sets out some basic principles for the process, but the logistics are left up to the union.
Not only that, according to Padrón, supervision is only required when the union requests it. “The CNE does not call upon unions to present their request, rather, it is those interested themselves who approach this institution to request the constitutionally guaranteed support,” says Padrón. If a union does not wish CNE supervision, it is free to hold the election on its own. “If the employer and the other administrative labor institutions recognize these [union] authorities as legitimate, this would be sufficient for all involved,” adds Padrón.[xxx] In other words, it is possible that some employers, such as the government, say that they will recognize the union leadership only if it was elected under CNE supervision – but this is not a legal requirement.
HRW then goes on to enumerate a few union election cases (out of about 5,000 unions registered with the CNE) in which it claims that the CNE did not certify union elections within a reasonable amount of time.
· CTV (CTV refused to be supervised, government refused to recognize result)
· SUNEP-SAS (health workers – CNE supposedly delayed certification)
· SUNEP-INN (nutrition workers – CNE supposedly delayed certification)
· FMV (doctors – initially refused supervision, now delayed)
In each of these few cases the CNE says irregularities in the electoral process delayed the certification. That HRW presumes to know who is right in this without even interviewing a CNE representative shows, once again, that its sympathies lie with the opposition-oriented leadership of these organizations.[xxxi]
Denial of collective bargaining to unrecognized unions
The second charge with regard to the supposed lack of labor freedom in Venezuela is that the government refuses to engage in collective bargaining processes with unions that are affiliated with the opposition or with the opposition-controlled labor federation, the CTV (Confederation of Venezuelan Labor). HRW lists only two cases in this connection, that of the public sector workers union FEDEUNEP and the airport workers union SUNEP. In both cases the government took advantage of Venezuelan labor law ambiguity, which does not provide for clear regulations about how employers are to decide with which union to bargain collectively when there is more than one union to represent the workers.
Throughout this report, HRW suggests that the government is setting up company unions in order to avoid negotiating with unions affiliated with the opposition-oriented CTV. However, HRW hardly seems to consider the possibility that most Venezuelan workers feel betrayed by the CTV and its unions because of its role in driving up the unemployment rate to over 22% during the 2002/2003 oil industry shutdown. The fact that Venezuelan workers have massively joined the new union federation, the UNT (National Union of Venezuelan Workers) and have abandoned the CTV is not mostly the result of government favoritism towards UNT affiliated unions, as HRW wants its readers to believe. Rather, it is because of the fact that the Chavez government has been far more pro-worker (and anti-business) than the CTV, which has been working hand-in-hand with the country’s largest chamber of commerce, Fedecamaras.
That the Chavez government is taking advantage of an age-old imprecision in the existing labor law by choosing which unions to bargain with is not an ideal situation. However, when evaluating the Chavez government’s record with regard to labor organizing rights, one should also consider the government’s wider record in this regard, compared to previous governments. The comparison would, no doubt, be favorable, measured by the tremendous increase in collective bargaining agreements and the relative lack of strikes, even though the old union movement was largely controlled by one of the former governing parties, Acción Democrática.[xxxii]
Undermining right to strike
To make the case that the Chavez government has generally “undermined the right to strike” HRW relies on just one incident, which is the already mentioned oil industry shutdown, where it keeps repeating, against any real evidence (other than an ILO committee report that was heavily influenced by CTV lobbying), that the shutdown represented a legitimate strike action.
In this section HRW’s opposition bias comes out again when it re-hashes some of the details of the oil industry shutdown from an exclusively opposition point-of-view. For example, HRW makes it look like the oil industry management’s unrest was exclusively Chavez’s fault because he “had fired the PDVSA president and appointed a new board of directors with ties to his administration.” (p. 175) In reality, though, PDVSA board members have always been appointed on the basis of their ties to the president. It is just that this time the President of Venezuela and the new PDVSA board did not belong to the country’s old elites, to which PDVSA’s managers belong.
Also, HRW falsely claims that, following the April 2002 coup attempt, “the struggle between the Chávez administration and PDVSA employees continued through the year.” (p.175) In reality, Chavez’s appointed board of directors resigned, the old board returned, and the fired managers returned to their posts, even though they had been involved in an illegal lockout during the coup attempt. The PDVSA president, Ali Rodriguez, took a decidedly soft-line with the management and no disturbances took place within the oil industry until the opposition decided to launch its second attempt to unseat Chavez in late 2002 when it saw his mellower approach as a new opportunity to get rid of him.[xxxiii]
Finally, this section of the HRW report concludes with some warnings about how cooperatives and workers councils (which the government plans to introduce in the near future) could be abused and directed against labor.
It is odd, though, to see HRW express so much concern about labor’s right to organize when it pays practically no attention to many of the decidedly pro-labor positions of the Chavez government. For example, HRW says nothing about Venezuela having the highest minimum wage in Latin America, which has been steadily increased over the years, President Chavez’s direct support for striking steel workers at Sidor, which was nationalized in accordance with worker demands after a prolonged labor conflict, and the tremendous increase in the number of workers who have been incorporated into Venezuela’s social security system since Chavez came into office.[xxxiv] These omissions, when combined with the report’s relatively weak criticisms (about CNE supervision of union elections, the lack of collective bargaining contracts with opposition-affiliated unions, and the possible abuse of cooperatives and workers councils), gives the distinct impression that HRW is merely siding with Venezuela’s formerly dominant and still corrupt unions that are affiliated with the CTV, instead of presenting an objective and pro-labor report.
Civil Society – Weak to Non-Existing Arguments
For HRW’s last broadside against the Chavez government, that Chavez and his supporters are “harassing” civil society groups, HRW comes up with its perhaps weakest arguments yet. HRW offers three main arguments to back up its claim: (1) the government subjects rights advocates to unsubstantiated criminal investigations, (2) the government seeks to exclude NGOs that receive money from foreign sources from representing Venezuela in international forums, and (3) the government is pursuing legislation that would allow it to arbitrarily interfere in NGO functioning. While it is possible to say that there might have been some verbal excesses towards oppositional NGOs, it is a complete falsification of reality to imply, as HRW does, that under Chavez civil society is more hemmed in than elsewhere in the world or than previously in Venezuelan history. Just the opposite tends to be the case, as polls about the high degree of politicization and the large amount of political activity in Venezuela attest.[xxxv]
Unsubstantiated Accusations and Other Harassment
The first case HRW takes up to defend is that of Venezuelan Prison Watch (Observatorio Venezolano de Prisiones, OVP), an organization that it presents as being a politically neutral group that works towards prison reform. The goals of this group are certainly laudable, considering that the situation in Venezuela’s prisons can be considered nothing less than hellish. Indeed, Chavez has admitted so much and is quoted as saying so in the HRW report. However, to present OVP as a politically neutral organization, which HRW does by presenting government claims of its politicization as having no foundation, is absurd. It is very well known in Venezuela that the group and especially its leader, Humberto Prado, are very active within the opposition. This fact alone, of course, does not justify legal harassment. Actually, HRW does not say that OVP is being harassed legally, just that it is being questioned verbally, by government officials who state what everyone knows, that this group’s expressly partisan positioning undermines its stated and commendable objectives of helping reform the prison system. If HRW considers this kind of questioning to be “harassment” (p.208), then it is in effect denying government officials their right to exercise their freedom of speech and say what they think about what a group such as OVP is doing.
HRW then highlights a truly unusual case (not one similar case can be found in the entire report) of Carlos Nieto, the director of Window to Freedom (Una Ventana a la Libertad), who was directly threatened by “government agents” (p.208). Even though it is not at all clear what the details of this case are (the report mentions it almost in passing), it is sandwiched within the story of the supposed “harassment” of OVP, making it look like the two cases are in some way related or part of a larger pattern.
While it is indeed a shame that the Chavez government dismisses OVP’s criticisms of prisoner abuse and poor prison conditions because of OVP’s highly politicized approach to dealing with the issues, one should keep in mind that the group does its cause no justice by taking the such a confrontational approach (which is indeed quite similar to the confrontational approach that HRW takes). For HRW, though, OVP bears no responsibility for its failure to get through to the government.
Even when complimenting the government, such as in its police reform effort, where the government invited NGOs associated with the opposition, HRW manages to turn it into a backhanded compliment. According to HRW, “the inclusion of representatives from NGOs [on the police reform] was a rare recognition of their work.” (p.213) Such a claim, though, is false on the face of it, if one considers how extensively the government has previously worked with civil society groups in the constitutional assembly process (which HRW acknowledges elsewhere), in its urban land reform program, in the creation and modification of the communal council law, and a great variety of other projects.
Nonetheless, HRW keeps stressing that the police reform process was an exception (“that proves the rule” of NGO harassment) and hammers the point of official harassment home with the Attorney General’s investigation into the role that Carlos Ayala, a Human Rights lawyer, might have had in the April 2002 coup attempt. Even though there are almost a dozen human rights groups in Venezuela, each working with many lawyers, HRW seems to believe that this one case, which is admittedly based on thin evidence, is proof of the persecution of human rights advocates in Venezuela. Not only that, no formal charges were ever filed against Ayala, which makes it even more difficult to say that the investigation represents some sort of effort to silence him, especially when the investigation actually had the opposite effect, of giving him far more visibility than he ever had before the investigation was launched.
Next is the case of the NGO Súmate, another supposedly non-partisan NGO that received funding from the U.S. government-funded National Endowment for Democracy (NED). The Attorney General filed a suit for conspiracy to subvert the government against Súmate because it received funding from a U.S government-funded group for engaging in partisan electoral activity. According to HRW, this represents another case of NGO intimidation because even if Súmate used the NED funds for the recall referendum, this is “not an act of subversion.” On the face of it, this argument is plausible, but if the Attorney General believes he (or she now) can make a case that Súmate used it to influence one side over another in the referendum, then they have the right to take the case to court. In the end, the case was dismissed on technical grounds, though, which just indicates that the court system is independent and not subservient to Chavez or the Attorney General.
Finally, to further support their argument that the Chavez government is “harassing” human rights NGOs, HRW complains about the sometimes strong language Chavez uses to criticize some of their work. As everyone knows, Chavez’s rhetoric can often be over the top, but that this point should receive so much space in a report on human rights problems gives further credence to the notion that HRW believes its mission of combating serious human rights violations in the Americas has been accomplished and now the most pressing human rights issue it can find is the strong language of the president of Venezuela.
Legislation to Interfere in NGO Functioning
With regard to the HRW claim that the Chavez government is trying to undermine critical NGOs by passing legislation that would restrict their ability to raise funds from foreign sources, HRW is openly questioning the Venezuelan people’s right to determine the extent to which foreign powers should be allowed to shape Venezuelan civil society. Still, once again HRW is chasing a non-issue because, as its report admits, Venezuelan legislators shelved the proposed law at the urging of the EU. This is hardly the action of a government intent on undermining the free functioning of civil society groups.
HRW then proceeds to criticize a Supreme Court ruling that states that groups that receive foreign funding cannot be considered part of Venezuelan civil society for purposes of constitutional requirements to include such groups in certain constitutional processes, such as the nominating process for the Electoral Council directors or the Supreme Court judges. Such a critique is laughable, though, because it implies that for such sensitive processes Venezuelans ought to accept the shaping of their institutions by powerful and wealthy foreign funders who could easily turn typically underfunded third world civil society groups into their puppets. In contrast, the United States, for example, currently has extensive regulations to prevent just that kind of thing from happening, known as FARA (Foreign Agent Registration Act). Venezuela still has nothing of the kind in its laws.
After taking apart each section, we can see that the report actually contains only a handful of valid concerns. These include the potential weakening of Supreme Court autonomy because of the National Assembly’s ability to remove judges with a simple majority vote, the lack of an independent regulatory body for the broadcast media (CONATEL), and the lack of clear guidelines for which union has the right to bargain collectively when there is more than one union. However, these outstanding issues in the effort to create a better Venezuela pale in comparison with what has already been achieved if one considers the atrocious shape institutions were in before Chavez, when Supreme Court rulings went to the highest bidder, when the media was free to operate in the interest of its private owners and not the public, and when unions were completely dependent upon the government and a hopelessly corrupt leadership.
Human Rights Watch’s special report on Venezuela—probably the most extensive study HRW has ever conducted on Venezuela—bears absolutely no relation to the actual situation of human rights in that country. Anyone unfamiliar with Venezuela will almost automatically conclude that the report’s length and depth of reporting must mean that the human rights situation in Venezuela is very serious. But a close reading of the report itself shows that most of the points it makes are extremely weak.
Political discrimination in Venezuela, while a persistent problem throughout its history must be seen in the context of the massive sabotage of state institutions. The supposed lack of Supreme Court independence is not credible if one considers that the court regularly makes decisions against Chavez and his supporters. The private mass media’s supposed restrictions bear no relationship to constant stream of invective this media hurls at the government on a regular basis. The accusation that unions lack of collective bargaining freedom appears as little more than the defense of the “right” of a corrupt union leadership to maintain its power. Finally, the government’s supposed “aggressively adversarial approach” to civil society becomes a non-issue if one considers the weaknesses of HRW’s arguments in this area.
In other words, upon closer examination, practically all of HRW’s accusations dissolve into nothing more than smoke and mirrors. Just as Vivanco’s comments about the report seem to indicate, the real purpose of this report was to discredit the Chavez government, to show that it is “no model for anyone.” It is this reaction, though, which suggests that it is precisely because Venezuela is serving as a radical alternative model that has shaken Venezuela’s and the world’s elites to the core, that elite-sponsored institutions such as Human Rights Watch see a need to discredit it.
[i] A Decade Under Chávez: Political Intolerance and Lost Opportunities for Advancing Human Rights in Venezuela, by Human Rights Watch, September 18, 2008 (http://hrw.org/reports/2008/venezuela0908/)
[ii] See: “José Miguel Vivanco’s Background,” letter to the editor, Venezuelanalysis.com, October 10, 2008 (http://www.venezuelanalysis.com/letter/3868)
[iii] “A Decade Under Chávez”, Human Rights Watch, p.2
[iv] “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis,” article 5 of the 1993 Vienna Declaration, signed by all 171 participating nations.
[v] Also, the report claims to be published on the ten-year anniversary since Chavez was first elected as president. However, that anniversary won’t be until December 6, 2008. It is thus almost three months early.
[vi] Only in 2005 did HRW release a longer special report on a Latin American country, on “Hidden Abuses Against Detained Youths in Rio de Janeiro” (June, 2005) 392 pages.
[vii] “Venezuela no es modelo para nadie,” September 21, 2008, El Universal
[ix] See Venezuela’s MDG page on the UNDP website: http://www.mdgmonitor.org/factsheets_00.cfm?c=VEN&cd=862 and the planning ministry’s data: http://www.sisov.mpd.gob.ve/metas_milenio/
[x] “Political allegiance was the passport to jobs in the public sector [before Chavez], as well as government contracts and services.” p.14, HRW report
[xi] The HRW report cites the case of FOGADE, in which 80 persons lost their job, but where a labor court determined that their dismissals were illegal (p.21-23); one employee of the National Council of Frontiers (p.24); the National Electoral Council where some volunteers lost their positions as poll workers (p.25-26); a cooperative that did not get a government contract (p.27-28); and the opposition controlled public employees union FEDEUNEP, which documents “200 dismissals, 400 employees subjected to pressure tactics, and 180 transfers.” (p.16)
[xii] There are at least two million public employees according to Venezuela’s National Statistics Institute (INE – www.ine.gov.ve).
[xiii] I do not call it a “strike” because it was also a lockout by the upper-management and it involved a clear effort to sabotage the industry (such as by blocking the harbors, denying access to crucial passwords, and even destroying equipment).
[xiv] Just a cursory glance at any of the newspapers or TV news programs of the time (which were almost all opposition) would prove this point beyond any doubt.
[xv] “Venezuelan Opposition Accuses Oil Company President of Illegal Campaigning,” by Gregory Wilpert, Venezuelanalysis.com, November 3, 2006. HRW also cites Chavez, who said around the same time, “PDVSA workers are part of this revolution, and whoever is not should go somewhere else, go to Miami.” (p. 31) However, suggesting that people who don’t like the government should leave and firing them are two completely different things.
[xvi] This based on my conversations with PDVSA employees.
[xvii] Latinobarometro, Informe Anual 2006, p.80 (www.latinobarometro.com). In Colombia and Brazil 53% responded that their judiciaries did “good” or “very good work”, while in the Dominican Republic it was 58% and in Uruguay 59%. Unfortunately, the time series of how Venezuelans evaluate their judiciary going back to 1998 is not available online.
[xviii] See, “Venezuela: Judicial Independence Under Siege,” where HRW spends most of its report analyzing the slow progress in the reform of the judicial system. Also, see my critique of this report, “Has Human Rights Watch Joined Venezuela’s Opposition?”
[xix] The editor of Últimas Noticias, Eleazar Díaz Rangel, one of Venezuela’s most respected journalists, says about the supposed lack of freedom of speech in Venezuela during the Chavez era, “No one can present examples of news that was censored as a result of governmental action.” What directors of the major Venezuelan private media are “actually complaining about is having lost the privilege of being the owners of freedom of expression [in Venezuela],” adds Rangel. (http://www.aporrea.org/medios/n122013.html, Oct. 10, 2008)
[xx] “Chávez also made up his media deficit by using presidential authority to order all stations—including private television and radio stations—to interrupt programming without prior warning and broadcast his speeches and other government events live, often for hours on end, at peak viewing hours.” (p.70)
[xxi] Unlike the “court-packing law,” HRW calls the social responsibility law by its actual name, instead of the nickname the opposition gave it: the “muzzle” law.
[xxii] The fine was against Teodoro Petkoff’s newspaper Tal Cual, where HRW tries to argue that the case was unfair and the fine of $50,000 too high. The newspaper hardly had any problems paying the fine, though, because it did some fundraising to do so and because Petkoff is married into one of Venezuela’s richest families.
[xxiii] The only case that resulted in a three-year prison sentence was the one against General Francisco Usón, which indeed seems like a draconian sentence that was handed down by a military court martial. The rules under which this verdict was reached, though, pre-date the Chavez government and seem to be normal in the region for this type of military proceeding. Latin America’s militaries are extremely sensitive to public criticism from within the ranks. This does not excuse it, but it does call into question whether this case is representative of a supposed effort to muzzle the press.
[xxiv] HRW dismisses all too facilely the impact these events had on Chavez and his supporters when it says that the coup provides “a pretext for a wide range of government policies that have undercut the human rights protections established in the 1999 Constitution.” (p. 1)
[xxv] For a more detailed discussion of the RCTV case, see: “RCTV and Freedom of Speech in Venezuela,” by Gregory Wilpert, Venezuelanalysis.com, June 2, 2007.
[xxvi] HRW ignores this even though it cites an article about this finding in footnote 421 (p.147): Kiraz Janicke, “Venezuela Removed from ILO List of Labor Union Freedom Violators,” Venezuelanalysis.com, June 20, 2008, http://www.venezuelanalysis.com/news/3574
[xxvii] Of course, HRW does try to cast aspersions on the CNE too by falsely claiming, “In 2003 the government disregarded the nominating procedures established in the constitution and allowed the Supreme Court to designate the directors of the CNE, raising additional doubts about the CNE’s autonomy.” (p.147) First, it is the National Assembly that nominates the CNE. Second, the AN did not “disregard” the procedure, but could not reach a two-thirds majority for appointing the CNE members. The Supreme Court stepped in (while it was still evenly divided between opposition and Chavez supporters) to appoint the board because of the constitutional crisis the lack of a CNE represented. The resulting CNE membership reflected the balance of power in the National Assembly at the time, so that Chavez sympathizers had a one-vote majority on the CNE.
[xxviii] E-mail from María Padrón, of October 9, 2008.
[xxix] The constitution uses the word “organize” (art. 293, no. 6) when referring to elections of unions, professional associations, and political organizations. However, in practice this has always been interpreted as optional and as a supervision, as can be seen by the fact that political parties have often held elections without CNE organization or supervision. Also, contrary to HRW’s claim (p.144, fn. 406), article 95 of the constitution does not mandate that union officials be elected once every three years and that they cannot be reelected. This is part of the Organic Labor Law (art. 434), which, again contrary to another HRW claim, does not specify that union leaders cannot be reelected.
[xxx] Email from María Padrón, Oct. 9, 2008. HRW says that new rules that have not yet been made public would make supervision optional, but according to the CNE the existing rules already make them optional. Rather, the new rules, which Padrón says are currently receiving finishing touches, merely clarify this optional status of supervision and make the supervision itself more “flexible.” Also, the new rules will reduce the time-span between request and the CNE’s certification, from 90 days to 50 days.
[xxxi] Apparently HRW interviewed a former CNE director of union affairs, but this is not the same as speaking to someone who actually represents the CNE.
[xxxii] More unions have been registered and have reached collective bargaining agreements in Venezuela during the Chavez era than was the case before Chavez, according to Labor Ministry statistics. (http://www.mintra.gov.ve/)
[xxxiii] In addition to treating the management relatively well, PDVSA President Rodriguez signed a generous collective bargaining agreement with the three main unions shortly before the shutdown.
[xxxiv] The percentage of the economically active population incorporated into Venezuela’s social security system has increased from 23.9% in 1998 to 31.2% in 2007. Those over 60 years old who receive a pension increased even more dramatically, from 16% in 1998 to 40% in 2007. (Source: Ministry of Planning and Development: http://www.sisov.mpd.gob.ve/indicadores/)
[xxxv] See the Latinobarometro reports, which regularly show that Venezuelans are more politically active and engaged than almost any other people in Latin America or than in any time prior to Chavez. (www.latinobarometro.com) One could perhaps argue that this high level of politicization is due to the polarization that supposed restrictions on political activity has caused. However, when asked how highly satisfied Venezuelans are with their democracy, 59% report that they are satisfied, compared to 37% for all of Latin America. Only Uruguay has a higher percentage, at 66%. (Latinobarometro 2007, informe anual, p.80)