Smoke and Mirrors: An Analysis of Human Rights Watch’s Report on Venezuela

Note: To skip the Executive Summary and go directly to the (23-page) analysis, click here.

Executive Summary

The September 18, 2008 Human Rights Watch report, “A Decade Under Chavez,” 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.

Meta-Criticism

First, the focus of the report is on five specific issues relating to political rights (political discrimination, judicial independence, freedom of speech, labor organizing, and civil society organizing), completely leaving out other important political rights (such as the right to vote) and all social and economic rights. That the report has this narrow focus displays HRW’s bias towards the better off, who already enjoy their full economic and social rights and are thus in a better position to exercise political rights. Also, it leads readers to believe that the Chavez government has, as a whole, made no progress in improving the human rights of Venezuelans—a clearly false proposition on almost every human rights front.

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 lacking 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, the timing of the report’s release was terrible, a mere two months before a major electoral contest, the regional elections. Since this is the third time HRW has released a report shortly before an electoral contest, the suspicion that HRW is actively trying to influence these events cannot be dismissed.

Fourth, the report is exceptionally long (236 pages), far longer than any other recent report on a Latin American issue. Also, comments by HRW Americas Director José Miguel Vivanco raise the suspicion that the reason such a long report was written has more to do with HRW’s opposition to the Chavez government’s political project than with the seriousness of human rights violations in contemporary Venezuela.

In addition to these above-named problems with the report as a whole, which undermine the report’s credibility, each section displays its own set of problems.

Political Discrimination – Decontextualizing Problems

The main problem with the discussion on political discrimination in the hiring of public administration officials is that it completely ignores the larger context in which hiring decisions have to be made, where opposition supporters have repeatedly shown their willingness to slow down or otherwise sabotage the work of the ministries. This is not to say that political discrimination in public sector hiring (just as in private sector hiring) should not be condemned.

However, President Chavez, Oil Minister Rafael Ramirez, and the National Assembly member after whom a so-called black list was named, Luis Tascón, have all done so. Also, Venezuela’s labor ministry and the labor courts have reinstated many people who were wrongfully dismissed, which means that at least to some extent protections against such discrimination are in place.

The few concrete and confirmed cases of political discrimination that HRW cites in its report bear no relation to the enormous number of public sector employees. This means, if anything, that such discrimination is sporadic and based on individual department directors’ abuse of power, but not a systematic government policy.

Judicial Independence – A Highly Contradictory Analysis

The section on Venezuela’s judiciary tries to make the claim that the Chavez government has undermined judicial independence by “packing” the courts with its supporters following the April 2002 coup. However, the report fails to consider which is the worse precedent, a Supreme Court that condones a coup attempt or a Supreme Court filled with Chavez supporters. If the rule of law is supposed to be paramount, no government in the world could tolerate a Supreme Court that claims there was no coup when everyone else in the world (including most of the opposition itself) recognizes that there was one. Also, even though HRW claims that as a result of this “packing” the court system has lost its independence, the report itself cites countless court decisions that have gone against Chavez or his supporters.

In this section, though, HRW does raise one of the few valid points in its entire analysis, when it points out that the 2004 Supreme Court Law could undermine judicial independence in the future because it makes it much easier for the National Assembly to dismiss sitting Supreme Court judges (currently this is not an issue because Chavez supporters control about 90% of the seats due to an opposition boycott of the 2005 National Assembly elections).

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.

The two valid points HRW manages to drown in its exaggerations of freedom of speech restrictions are that the social responsibility law in radio and television provides insufficient specificity as to exactly what kinds of expressions are prohibited in the broadcast media (such as incitement) and the regulatory body that oversees violations is too dependent upon the executive. Thus, even though the Chavez government has so far not taken advantage of these weaknesses in the law, it does leave the door open for future abuse.

Organized Labor – Siding with Corrupt Union Bosses

According to HRW, “The [Chavez] government has systematically flouted its obligations under the conventions of the International Labour Organization.” (p.134) However, 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 corrupt 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.

To make this claim, HRW argues that the Chavez government illegitimately forces unions to hold regular and publicly supervised leadership elections, refuses to bargain collectively with opposition-oriented unions, and undermines the right to strike. However, the argument that Electoral Council supervision of elections represents “interference” is an extremely weak one, when one considers how badly clean elections are needed for the union movement. As for the charge that the government discriminates against opposition-affiliated unions, this too does not hold much water if one considers just how delegitimated the old union movement has become due to its reckless support for the opposition and that, as a result, workers have been flocking to the new independent but pro-government unions. Finally, with regard to the supposed undermining of the right to strike, this charge is based on nothing more than the highly questionable ILO declaration that the 2002 oil industry shutdown was a legitimate strike when everyone in Venezuela knows that the strike’s one and only goal was to force Chavez’s resignation. In other words, in case after case, HRW is openly siding with the corrupt old union movement represented by the CTV.

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 this up: (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 government excesses with regard to the treatment of 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 it was prior to Chavez. Just the opposite is the case, as polls about the high degree of politicization and the large amount of political activity in Venezuela attest (according to Latinobarometro annual report, 2007).

Also, when one carefully examines the specific issues HRW brings up with regard to civil society “harassment,” each one of them fails to prove HRW’s main point. For example, while the opposition NGO Súmate indeed faced the threat of a potentially draconian punishment, the courts dismissed the case, even though the evidence that they used U.S. money for subversive political activity in Venezuela was quite strong. This case, just as many others like it, proves that the Venezuelan judicial system is working and is not subservient to the executive.

Conclusion

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.

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” (“Venezuela no es modelo para nadie,” September 21, 2008, El Universal). 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.

Main Analysis

Smoke and Mirrors: An Analysis of Human Rights Watch's Report on Venezuela

By Gregory Wilpert – Venezuelanalysis.com

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,"[1]
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.[2]
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."[3]
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.[4]
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 23^rd 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).[5] 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.[6]
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."[7]
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…"[8]
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.[9]

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.[10] 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,[11]
these pale in comparison to the total number of employees in the public
administration.[12]

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[13]
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.[14]

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.[15] 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.[16]
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.[17]

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.[18]
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.[19]

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.[20]

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.[21]

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[22]
and two received suspended sentences, one had to apologize, and only one had to
serve a prison sentence.[23]
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[24]
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.

RCTV Case

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.[25]

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.[26]

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.[27]
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]."[28]
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.[29]
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.[30]
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.[31]

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.[32]

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.[33]

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.[34]
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.[35]

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.

Conclusion

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.

[1] 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/)

[2] See: "José
Miguel Vivanco's Background," letter to the editor, Venezuelanalysis.com,
October 10, 2008 (http://www.venezuelanalysis.com/letter/3868)

[3] "A Decade
Under Chávez", Human Rights Watch, p.2

[4] "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.

[5] 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.

[6] 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.

[7] "Venezuela no es modelo para nadie,"
September 21, 2008, El Universal

[8] ibid.

[9] 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/

[10] "Political
allegiance was the passport to jobs in the public sector [before Chavez], as
well as government contracts and services." p.14, HRW report

[11] 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)

[12] There are
at least two million public employees according to Venezuela's National
Statistics Institute (INE – www.ine.gov.ve).

[13] 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).

[14] 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.

[15] "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.

[16] This based
on my conversations with PDVSA employees.

[17] Latinobarometro, Informe Anual 2006, p.80
(www.latinobarometro.org). 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.

[18] 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?"

[19] 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)

[20] "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)

[21] 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.

[22] 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.

[23] 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.

[24]
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)

[25] 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.

[26] 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

[27]
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.

[28] E-mail from
María Padrón, of October 9, 2008.

[29] 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.

[30] 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.

[31] 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.

[32] 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/)

[33] 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.

[34] 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/)

[35] 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.org)
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)