The so often quoted paragraph provides for a most new factual premise allowing the controlling agency to investigate and sanction, within the reach of the law, those person who, in performing public functions, were not able to indisputably motivate or justify the failure of a specific administrative action. The legal text provides as a basis to subject to investigation and, in an extreme case, to sanction "the unjustified unfulfillment of the goals indicated in the corresponding programs or projects, as well as the unfulfillment of the objectives provided in the related laws or sets of standards".

According to consulted experts, the provision consecrates a figures that is unknown to most modern legislation, that is the "supercop", described as the officer empowered to evaluate the results of political decisions, after their results are known. "No specific crime is typified. The pretension is to judge the results of a measure having a political nature of which the execution may have caused damage to national public property, something really quite unusual and with clear features of unconstitutionality", pointed out the Administrative Law expert and Central University of Venezuela professor, Gustavo Linares Benzo.

The very same report by the Office of the Comptroller shows the exchange control system's failure as political decision having technical foundations —although not necessarily compatible— that, after having been in force for almost two years ended causing more damage to the country than the ills it tried to avoid. The Office of the Comptroller, based on questioned paragraph 15, could well assert criminal liabilities "invading the sphere of action of other public powers".

Before and after CAP

On the possibility that the process may reach even president Caldera, based on the precedent created by Carlos Andrés Pérez's case, Gustavo Linares expresses that "the next time is already here. A decree of administrative liability issued by the Office of the Comptroller General, based on the financial assistance and the ensuing contention at the Court have sufficed to raise the ghost of Pérez's trial, this time threatening Caldera".

Linares adds that "unwillingly, and far from trying to get involved with the extremely complex problem of the financial assistance and the Office of the Comptroller's powers, it may be useful to summarize this judicial debate to realize how the most sad history of a political trial of the President may be repeated, with huge costs and sufferance for all".

—Where does the case stand currently?

—As far as I have been able to know, the inquiry that was opened by the comptroller and decided based on [paragraph 15, article 113] of the new Law of the Office of the Comptroller —enacted in December 1995, that is after the assistance—determines that that the members of the Financial Emergency Board gave financial assistance to the Latinomericana Progreso group "failing to comply with the objectives provided in the related laws or sets of standards", as the new paragraph 15 reads. Faced with this investigation, the Board members filed action for annulment of the new article, alleging that it was not within the Office of the Comptroller's powers to determine if the objectives provided by the laws were met but rather to "control, supervise, and censure, national revenue, expenditures and property" (article 243, Constitution) which is a totally different thing. The Court thought that such allegation was presumably valid and suspended the inquiry by the Office of the Comptroller General until the very same Court would decide if the already famous paragraph 15 is unconstitutional.

—Why is one already hearing talks that the president of the Republic may be ultimately liable for the assistance?

—The fact that there have been talks of preliminary special judicial investigations and other varieties is something like the institutional bagasse of the judgment in the CAP case. That decision, among other dysfunction, embraces the thesis of prosecutor general Badell that "the President is the supreme administrator of Public Treasury", based on the simple constitutional expression that he is responsible of "administering the Public Treasury". As a consequence, says the Court in its judgment, the President is liable for what his ministers may have done, then Figueredo and Izaguirre and now Casas, Sosa and the other members of the Financial Emergency Board.

If it is already far fetched to find administrative, criminal or civil liabilities in the granting of financial assistance —at the time loudly claimed by Congress, the media and the people in general, let's not forget it— it is far more unusual to pretend that Caldera has something do with it. Even in CAP's case, Because the ousting of president Pérez not only harmed the presidential institution, it also gave the worst example of how to break the head of the Executive's resistance if the opinion matrix does not get his renunciation. The perversity of the President's trial, something that has already been perfectly documented for a history that will by written by my generation and not by that which enjoyed oil wealth to the verge of indecency, amended the Constitution without the need of Congress nor of a constituent power.

—How did this change operate?

—A President who could not de deposed by means of political reasons, as it was wisely decided to protect the head of State by the 1961 Constitution, turned into a coated paper figure thanks to the most trivial political pretensions that could not be hidden under an ill shaped legal costume. The precedent hangs as a sword over the head of any [President] in Miraflores: if CAP was ousted for the use of secret funds, a pseudo-legal pretext, today the same pretext may be the issue of the financial assistance.

—How did the assistance operate?

—Caldera, based on the suspension of [constitutional] guarantees that he had decided on June 27, 1994, created the Financial Emergency Board, formed by the Minister of the Treasury, the chairman of the Central Bank of Venezuela [CBV], the president of Fogade [the deposit insurance agency], the superintendent of Banks and three other [officers] appointed by the President himself (Decree 248 of June 29, 1994). The Board's purpose was to centralize in a single agency the financial system's control objectives that were spread among several agencies, Successive amendments, regulations and resolutions made the system more and more complex, specially as to the delivery of the assistance, a procedure implying opinions from the CBV, from the Superintendence, the signing of agreements and diverse opinions. It is impossible to find within this web the President of the Republic's most insignificant role: the assistance in each case was given without his approval, authorization, permit or blessing. One should include there that he may not we made liable now for these funds' destiny. The Court's precedent, however, implies all the opposite, since using the words of CAP's special preliminary trial [antejuicio], "it was impossible that the President could have no knowledge of the assistance".

—Is a trial possible, then?

—The 1994 instances of financial assistance constitute one of our history's greatest economic catastrophes. In just a year and a half, a government lacking an economic plan and pretending to substitute such improvisation with a dozen leaflets, turned the financial crisis into a fiscal deficit of 13% of GDP and created a parallel debt that will burden our children, grandchildren and great-grandchildren. Bu this is just an opinion and, under the Constitution there is no way of making a legal trial out of it —the sole possible against the president of the Republic. But, before CAP's case, the President was "liable for his actions", as article 192 of the Constitution provides, and not for those of his ministers and other lower officers. With sorrow I must say that this is not longer so. Unusually, after the [Supreme Court's] judgment, the President is liable in his capacity of "supreme administrator of Public Treasury" for all that is done with Government funds, financial assistance among other. Since if Pérez committed the crime of deviation of secret funds for unauthorized public use and no one even alleged that he administered these funds, any crime punished under the [Law for the] Safeguard [of Public Property] committed by any officer, any liability of any lower rank officer, shall ultimately be the crime and liability of the head of State.