IACHR CONCERNED ABOUT LAW INITIATIVES IN VENEZUELA THAT COULD UNDERMINE THE EFFECTIVE EXERCISE OF HUMAN RIGHTS
Washington D.C., December 15, 2010 – The Inter-American Commission on Human Rights (IACHR) and its Office of the Special Rapporteur on Freedom of Expression express their concern regarding three draft laws that could be approved in the next few days in Venezuela: an Enabling Law, and bills that would modify the laws on Telecommunications and on Social Responsibility in Radio and Television.
The executive power has asked the National Assembly to approve an Enabling Law that delegates to the Executive the power to sanction laws for a period of one year. Both the constitutional provision and the delegating law fail to set the limits necessary for the existence of true control over the executive branch’s legislative power, while there does not exist a mechanism to allow a balanced correlation of government power as a guarantee for the respect for human rights.
The separation of powers as a guarantee of the rule of law also demands an effective and not merely formal separation between the executive and legislative branches. The possibility that bodies democratically elected to create laws delegate this power to the executive branch is not in and of itself a violation of the separation of powers or the democratic state, so long as it does not generate unreasonable restrictions or deprive human rights of their meaning. Notwithstanding, the protection of human rights requires that state actions affecting the enjoyment of such rights in a fundamental way not be left to the discretion of the government but, rather, that they be surrounded by a set of guarantees to ensure that the inviolable attributes of the individual are not impaired. Moreover, the principle of legality, which must be respected when imposing restrictions on human rights, is jeopardized by permitting the delegation of legislative authority in terms that are overly broad and that could extend to criminal matters. The frequent concentration of executive and legislative functions in a single branch of government, in the absence of appropriate controls and constraints set by the Constitution and the Enabling Law, allows interference in the realm of rights and freedoms.
The Enabling Law currently under consideration by the National Assembly is of special concern to the IACHR with regard to the power delegated to the executive branch to create norms that establish the sanctions that would apply when crimes are committed. Moreover, the Enabling Law will allow the executive power to legislate in matters of international cooperation. In this aspect, the IACHR reiterates its concern regarding the possibility that the capacity of non-governmental human rights organizations to do their important work is curtailed. The Inter-American Commission reiterates the recommendation in its 2010 report Democracy and Human Rights in Venezuela to reform Article 203 of the Constitution of Venezuela, as it permits the delegation of legislative faculties to the President of the Republic without establishing clear and defined limits to the content of such delegation.
The Enabling Law also assigns the President of the Republic ample, imprecise and ambiguous powers to dictate and reform regulatory provisions in the telecommunications and information technology sectors. Additionally, the Assembly is discussing the modification of the laws on Telecommunications and Social Responsibility in Radio and Television, in order to extend their application to the electronic media, impose disproportionate obligations that would make impossible the continued operation of critical outlets such as Globovisión, and interfere with the content of all communications media.
The draft laws prohibit all media outlets from issuing messages that “incite or promote hatred”, “foment anxiety in the citizenry” or “ignore the authorities”, among other new prohibitions that are equally vague and ambiguous. In addition, they establish that Internet service providers should create mechanisms “that enable the restriction of (…) the dissemination” of these types of messages and they establish the liability of such companies for the expressions of third-parties.
By holding service providers responsible and extending the application of vague and ambiguous norms that have been questioned by the IACHR and the Office of the Special Rapporteur in their report Democracy and Human Rights in Venezuela, the draft law targets freedom of expression on the Internet in an unprecedented fashion. The initiative includes ambiguous norms that sanction intermediaries for speech produced by third parties, based on assumptions that the law does not define, and without guaranteeing basic elements of due process. This would imply a serious restriction of the right to freedom of expression enshrined in the American Convention on Human Rights.
Finally, the draft laws establish new conditions for broadcasting activities, which appear to be directed at restricting the influence of independent audiovisual media outlets in Venezuela. For example, the bill requires all broadcasting license-holders to re-register before the competent authority despite the fact that their licenses were issued appropriately. In the case of corporations, the bill requires the new registry to be done “personally” by every one of the shareholders. This odd requirement could affect the license of Globovisión, since its principal shareholders are the subject of criminal proceedings for reasons unrelated to their ownership or administration of the channel, and they have requested political asylum in another country in the region. The draft legislation tends to create very effective mechanisms for interfering with content in order to prevent the circulation of information that proves uncomfortable for the government and creates a de facto public monopoly that restricts in an absolute way the principles of diversity and pluralism that should govern broadcasting.
The IACHR and the Office of the Special Rapporteur for Freedom of Expression consider that these measures represent a serious setback for freedom of expression that primarily affects dissident and minority groups that find in the Internet a free and democratic space to disseminate their ideas. In addition, by targeting the influence of private audiovisual media outlets, the aforementioned draft laws further restrict the space for public debate about the actions of Venezuelan authorities and increasingly favor the powerful voice of the State and government authorities.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of seven independent members who are elected in a personal capacity by the OAS General Assembly and who do not represent their countries of origin or residence.
Press Release 118/10: IACHR Concerned over International Cooperation Initiative in Venezuela.
Press Release 26/06: Inter-American Commission on Human Rights Concerned over Venezuelan Draft Legislation on International Cooperation
Press contact: María Isabel
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