Tuesday, December 04, 2007

The State of Exception

After the defeat of the Constitutional Reform at the 2 December 2007 referendum, Hugo Chávez said that the reform proposal is still alive, though it is defeated for now, and that he won't retract a single comma from it.

Some of the articles in the reform proposal -- such as the shortening of the working day, social security for informal-sector workers, and prohibition of discrimination based on sexual orientation -- should raise no controversy among leftists, and the Chávez government can implement them during the rest of his term even without putting them to a new referendum.

Others, however, are very much debatable. What is most debatable is not what the corporate media focused upon -- the removal of term limits (the limits which many states do not have though the media tried to pass off their removal as if it were the ticket to presidency for life) -- but an attempt to write exceptions to the Constitution into the Constitution itself.
Section VIII. Constitutional exceptions: Right to information no longer guaranteed during state of emergency, emergencies to last as long as the conditions that caused it.

Art. 337 - Change in states of emergency, so that the right to information is no longer protected in such instances. Also, the right to due process is removed in favor of the right to defense, to no forced disappearance, to personal integrity, to be judged by one's natural judges, and not to be condemned to over 30 years imprisonment.

Art. 338 - States of alert, emergency, and of interior or exterior commotion are no longer limited to a maximum of 180 days, but are to last as long as conditions persist that motivated the state of exception.

Art. 339 - The Supreme Court's approval for states of exception is no longer necessary, only the approval of the National Assembly. (Gregory Wilpert, "Venezuela's Constitutional Reform: An Article-by-Article Summary," Venezuelanalysis, 23 November 2007)
Giorgio Agamben says: "The state of exception establishes a hidden but fundamental relationship between law and the absence of law" ("Interview with Giorgio Agamben -- Life, A Work of Art Without an Author: The State of Exception, the Administration of Disorder and Private Life," German Law Journal 5.5, 1 May 2004). That is everywhere the case in modern states. What the Constitutional Reform proposal just voted down in Venezuela did, however, was to make that "hidden but fundamental relationship between law and the absence of law" explicit. (What do leftists think of that? Their post-referendum analyses have yet to address this question.) No wonder that the corporate media maintained relative silence on the matter, for states of the global North, led by the United States, are themselves in the process of moving "from a state of emergency into a permanent state of exception" (Jean-Claude Paye, "A Permanent State of Emergency," Monthly Review 58.6, November 2006).

1 comment:

Disgruntled Goat said...

canada's charter of rights and freedoms - the document that is the main source of constitutional rights for canadians - contains a "notwithstanding clause", section 33, which allows the government to suspend a right or freedom in five-year blocks, as long as it openly declares that it will do so.

seems like a pretty bad provision in an otherwise pretty progressive constitution. thought it's a dangerous provision, it hasn't been invoked in the 23 years the charter has been in effect. it also hasn't earned canada the kind of scorn that's heaped on venezuela.