Venezuelas New Constitution

By Gregory Wilpert, August 27th 2003

History of Constitutional Reform
It has been said that before Chve be!a"e president it #as not all that !lear #hi!h #ay
he intended to ta$e the !ountry% &e see"ed to be pro"ising different things, depending
on his audien!e% &o#ever, on one issue he #as !lear fro" the beginning, and that #as his
intention to #rite a ne# !onstitution for 'eneuela% (ollo#ing the )*+* Cara!as riots, the
,Cara!ao,- in #hi!h any#here bet#een 300 and over ),000 people died, Chve.
"ilitary "ove"ent, the /B01200 2/ovi"iento Bolivariano 0evolu!ionario3, began a
dis!ussion of ho# it should go about !o"pletely refor"ing 'eneuelan so!iety% By the
ti"e his "ove"ent #as ready to laun!h the )**2 !oup, it had de!ided to fo!us on the
!onvo!ation of a !onstitutional asse"bly%
We discussed how to break with the past, how to overcome this type of
democracy that only responds to the interests of the oligarchical sectors; how to
get rid of the corruption. We had always rejected the idea of a traditional military
coup, of a military dictatorship, or of a military governing junta. We were very
aware of what happened in Colombia, in the years of 1!"11, when there was
a constitutional assembly # of course$ # it was very limited because in the end it
was subordinated to the e%isting powers. &t was the e%isting powers that designed
Colombia's constitutional assembly and got it going and, therefore, it could not
transform the situation because it was a prisoner of the e%isting powers.()1*
4hen, #hen Chve #as a prisoner follo#ing his )**2 !oup atte"pt, he studied politi!al
theorists, in!luding Antonio 5egri, a pro"inent !onte"porary leftist theorist #ho has
#ritten "u!h about the ,!onstituent po#er- and the need for a !onstituent 2or
!onstitutional3 asse"bly, in order to pla!e a !ountry on a ne# revolutionary foundation%
By the ti"e Chve #as a!tively !a"paigning for the presiden!y in )**+, the plan to
#rite a ne# !onstitution for 'eneuela #as one of his "ost !onsistently arti!ulated plans%
4his plan #as so definite that Chve. politi!al party #as !alled the ,(ifth 0epubli!
/ove"ent- 2/ovi"iento 6uinta 0epubli!a, or /'0 7 the ,'- "eaning the 0o"an
nu"ber 83, as a signal that #ith a ne# !onstitution 'eneuela #ould be beginning the
fifth republi! of its history, sin!e the !ountry.s founding in )+))%
It should be noted that the effort to either !o"pletely re#rite or to refor" 'eneuela.s
!onstitution #as nothing ne# in 'eneuelan history% Bet#een )+)) and )*9) 'eneuela
had 29 !onstitutions% 4he )*9) !onstitution lasted the longest, until )***% &o#ever, it too
has been sub:e!t to several refor" efforts during the )**0.s% ;resident Carlos Andr<s
;<re, follo#ing the Caraca+o, "ade so"e !hanges #hi!h allo#ed for greater
parti!ipation in 'eneuela.s politi!al syste", by allo#ing for the dire!t vote of state
governors and "ayors% 4his #as the first step #hi!h eventually allo#ed for "ore parties
besides A!!i=n >e"o!rti!a and Copei to be represented on state and lo!al level% (urther
!hanges to the !onstitution #ere planned, but never i"ple"ented% 4hen, follo#ing
Chve. )**2 !oup atte"pt, the !alls for a ne# !onstitution #ere rene#ed% 4his too
faltered #ithin a fe# "onths% >uring his )**? presidential !a"paign, 0afael Caldera
brought the issue up again, but did not get far%
(ollo#ing his ele!tion in >e!e"ber )**+, the first thing Chve did as ne#ly ele!ted
president, #as to s!hedule a referendu" on #hether or not 'eneuelans #ant to !onvo$e
a !onstitutional asse"bly% 4he )*9) !onstitution, #hi!h had lasted "u!h longer than any
previous 'eneuelan !onstitution 237 years3, did not provide for any "e!hanis"s for
!alling a !onstitutional asse"bly% @o"e had argued that it #as ne!essary to refor" the
)*9) !onstitution to in!lude su!h a provision% Instead, a hu"an rights organiation,
(undahu"anos, filed a !ase #ith the 'eneuelan @upre"e Court, on >e!e"ber )9, )**+,
as$ing it to issue a !onstitutional interpretation as to the !onstitutionality of holding a
referendu" for the approval of a !onstitutional asse"bly% About a "onth later, on
Aanuary )*, )***, the !ourt issued a ruling in (avor of Chve. preferred path to #rite a
ne# !onstitution% 4his !ourt de!ision still re"ains !ontroversial a"ong "e"bers of the
opposition, #ho argue that the !ourt thereby opened the path for a di!tatorship%
4he referendu" too$ pla!e on April )* and had t#o Buestions% 4he first #as #hether or
not to !onvo$e the asse"bly and the se!ond #as #hether or not voters a!!ept the
pro!edures set forth by the president% *2C of those voting voted ,yes- in response to the
Buestion about !onvo$ing a !onstitutional asse"bly and +9C approved of the pro!edures
set forth by the president 2#ith an abstention rate of 93C3% 4#o "onths later, on Auly
28th, the vote for the "e"bers of the !onstitutional asse"bly too$ pla!e% 4he pro!edure
#as su!h that 2? "e"bers to the asse"bly #ere ele!ted nationally, three as
representatives of the indigenous population, and the rest, )0? #ere ele!ted as
representatives fro" their respe!tive states% All together there #ere )3) "e"bers of the
!onstitutional asse"bly, all of #hi!h #ere ele!ted dire!tly, via a si"ply "a:ority% As a
result of Chve. over#hel"ing popularity *8C, or )28 of the representatives, #ere
allied #ith Chve. politi!al pro:e!t% Dnly siE belonged to the opposition%
4he "e"bers of the !onstitutional asse"bly i""ediately began #ith their #or$%
&o#ever, it #as Bui!$ly realied that plenary sessions #ere too ti"e !onsu"ing and so,
be!ause Chve #anted the asse"bly to !o"plete its #or$ #ithin siE "onths, it "et
pri"arily in 22 !o""issions% Also, a debate bro$e out bet#een the opposition and the
asse"bly.s "a:ority on #hether or not the asse"bly had the right to ta$e over nor"al
legislative fun!tions% Chve and his supporters argued that sin!e the asse"bly #as the
highest legislative representative of the sovereign, of the people, the asse"bly should
ta$e pre!eden!e over the legislature% With help fro" the :udi!iary, Chve. vie# #on
out% By >e!e"ber the do!u"ent #as ready and on the )8th it #as sub"itted to a national
vote% 7)%+C of the voters approved the ne# !onstitution, #ith an abstention rate of
88%9C%
The 1999 Constitution of the Bolivarian Republic of Venezuela
4his se!tion eEa"ines so"e of the "ore i"portant !hanges that the ne# !onstitution
brought #ith it%
,ame Change
4he ne# !onstitution !hanged the !ountry.s na"e, fro" ,0epubli! of 'eneuela- to
,Bolivarian 0epubli! of 'eneuela%- 4his #as a !hange that Chve insisted upon, even
after his o#n supporters in the !onstitutional asse"bly re:e!ted it, "ainly be!ause it
#ould i"ply too "u!h of an eEpense to !hange all of the govern"ent.s letterheads,
offi!ial seals, et!% finally, ho#ever, Chve. !onvin!ed the asse"bly and the na"e
!hange #as in!luded% 4he ne# na"e is supposed to signal that 'eneuela is :ust one of
the !ountries that its founder, @i"on Bolivar, liberated and that it !ould, in the future,
belong to a federation of ,Bolivarian 0epubli!s%-F2G Given the great i"portan!e that
@i"on Bolivar plays in Chve. politi!al belief syste", it should !o"e as no surprise that
he #ould insist on this !hange%
-ender inclusivity
Hnli$e pra!ti!ally all !onstitutions ever #ritten, 'eneuela.s no# in!orporates the
"as!uline and the fe"inine versions of all politi!al a!tors it "entions% 4hat is, the
@panish language, :ust as "ost languages 2eE!ept Inglish3, distinguishes bet#een the
"as!uline and fe"inine versions of :ob titles, su!h as ,presidente- and ,presidenta%-
5o#, every ti"e there is a referen!e to any individual, su!h as president, !itien, la#yer,
representative, "inister, et!%, the referen!e is in both the "as!uline and the fe"inine
for"s% 4his in!lusivity "a$es the 'eneuelan !onstitution #hat so"e have !alled a ,non1
andro!entri!- !onstitution%F3G 4he i"pli!ation of using only the "as!uline versions is that
either #o"en are not !onsidered to be serious parti!ipants in the politi!al sphere or that if
they do parti!ipate, they ought to be li$e "en% By in!luding both the "as!uline and
fe"inine versions of the different roles that politi!al a!tors have, the !onstitution "a$es
eEpli!it the invitation that #o"en parti!ipate eBually in politi!s, #ithout being li$e "en%
.tate of /aw and 0ustice
Arti!le 2 of the !onstitution says that ,'eneuela !onstitutes itself in a de"o!rati! and
so!ial state of la# and :usti!eJ- 4his stands in !ontrast to "any other !ountry.s
!onstitutions, #hi!h si"ply say that its state is a state of la#%F?G In other #ords, the
'eneuelan !onstitution highlights the possible differen!es bet#een la# and :usti!e,
i"plying that :usti!e is :ust as i"portant as the la#, #hi!h "ight not al#ays bring about
:usti!e% 4he !onstitution.s de!laration of "otives, #hi!h pre!ede the offi!ial
!onstitutional teEt, elaborates on the !on!ept of :usti!e by saying, ,the state pro"otes the
#ell1being of 'eneuelans, !reating the ne!essary !onditions for their so!ial and spiritual
develop"ent, and striving for eBuality of opportunity so that all !itiens "ay freely
develop their personality, dire!t their destiny, en:oy hu"an rights and sear!h for their
happiness%-F8G Criti!s of the !onstitution have argued that this !on!eption of a state of
:usti!e, #hi!h !ontrasts #ith the state of la#, !ould lead to situations in #hi!h a vaguely
defined notion of :usti!e prevails of the la#, thus opening the possibility of a supposedly
benevolent di!tatorship% &o#ever, given that arti!le 2 is the only ti"e that the !ontrast
bet#een la# and :usti!e is dra#n, it is unli$ely that there #ould be any further
!onstitutional basis for su!h an interpretation of the !onstitution%
1uman 2ights and &nternational 3reaties
Before Chve !a"e to po#er 'eneuela #as for"ally bound by hu"an rights standards,
but in pra!ti!e often violated the"% 4orture, !ensorship, and violations of the right to
asse"bly #ere Buite !o""on, espe!ially during the se!ond presiden!y of Carlos Andres
;ere 2)*+*1)**33% 4hose #ho suffered fro" these hu"an rights violations #ere to a
very large eEtent the sa"e people #ho s#ept into po#er #ith the ele!tion of Chve as
president% /any of these individuals thus parti!ipated in the for"ulation of the ne#
!onstitution as "e"bers of the !onstitutional asse"bly% As a result, they gave hu"an
rights a !entral pla!e in the !onstitution% &o#ever, the hu"an rights that the !onstitution
"entions go far beyond #hat "ost !onstitutions in!orporate% 5ot only !ivil rights, su!h
as the freedo" of eEpression, asse"bly, and politi!al parti!ipation are in!luded, but so
are so!ial hu"an rights, su!h as the right to e"ploy"ent, housing, and health !are% (or
eEa"ple, #ith regard to health !are, the !onstitution states, ,&ealth is a funda"ental
so!ial right, an obligation of the state, #hi!h guarantees it as part of the right to life%- In
pra!ti!e, this has opened health !are to "any 'eneuelans #ho previously did not have
a!!ess to it%
A further innovation of the ne# !onstitution is the in!lusion of international treaties as
having eBual standing #ith the !onstitution, "eaning that they "ust be enfor!ed in the
sa"e #ay%
Women's 2ights )4*
In ter"s of #o"en.s rights, the !onstitution in!orporates so"e of the "ost progressive
prin!iples on this issue% (or eEa"ple, the !onstitution adopts the definition of
dis!ri"ination that has been set up by the ,Convention for the Ili"ination of all for"s of
>is!ri"ination against Wo"en- 2CI>AW3% 4his definition states that a!ts are
!onsidered dis!ri"inatory not only if they are "eant as su!h, but also #hen they have the
effe!t of produ!ing ineBuality% Arti!le 2) thus states, ,all persons are eBual before the la#
and !onseBuentlyK 5o dis!ri"ination based on ra!e, seE, !reed or so!ial standing shall be
per"itted, nor, in general, any dis!ri"ination #ith the intent or effect of nullifying or
i"pairing upon the re!ognition, en:oy"ent or eEer!ise, on eBual ter"s, of the rights and
liberties of every individual%- What this "eans in pra!ti!e is that publi! poli!ies "ust be
reeEa"ined for their possible dis!ri"inatory effe!ts% (or eEa"ple, if #o"en #ere under1
represented at publi! universities, the state #ould have to eEa"ine the !auses for this and
eli"inate any barriers that eEist that !ause fe#er #o"en then "en to attend the
university%
Another i"portant #o"en.s right that the ne# !onstitution in!ludes is the right of #o"en
ho"e"a$ers to re!eive so!ial se!urity benefits on a!!ount of the #or$ they perfor" in
the ho"e% @pe!ifi!ally, it says, ,4he @tate guarantees the eBuality and eBuitable treat"ent
of "en and #o"en in the eEer!ise of the right to #or$% 4he state re!ognies #or$ at
ho"e as an e!ono"i! a!tivity that !reates added value and produ!es so!ial #elfare and
#ealth% &o"e"a$ers are entitled to @o!ial @e!urity in a!!ordan!e #ith la#%- 2Arti!le ++3
&o#ever, due to the finan!ial proble"s of the 'eneuelan state, this arti!le has not yet
been put into pra!ti!e%
2ight to &nformation
Arti!le 8+, #hi!h guarantees the right to infor"ation, #as one of the "ore !ontroversial
arti!les #hile the !onstitution #as being dis!ussed in the !onstitutional asse"bly% 4he
reason for this is that this arti!le states that !itiens not only have the right to infor"ation,
but that they have the right to infor"ation that is ,ti"ely, true, and i"partial%- /e"bers
of the opposition read this arti!le as providing the state #ith the possibility to !ensor
infor"ation that is not !onsidered ,true- or ,i"partial%- &o#ever, the neEt #ords
!ontradi!t su!h an interpretation, by saying that su!h infor"ation is to be provided
,#ithout !ensorship, in a!!ordan!e #ith the prin!iples of this !onstitution%- Also, as of
this #riting, no effort at !ensorship has been "ade by the Chve govern"ent, even
though previous 'eneuelan govern"ents #ould have done so i""ediately, given the
eEtre"e hostility of the press to#ards the president and his ad"inistration%
5olitical 5arties
@tate finan!ing of politi!al parties #as eli"inated #ith the ne# !onstitution% ;reviously,
the state had provided generous finan!ing to the t#o "ain politi!al parties, A!!i=n
>e"o!rati!a and Copei% &o#ever, #ith their !o"plete loss of !redibility and the
!orruption asso!iated #ith state finan!ing, the !onstitutional asse"bly de!ided to
eli"inate state funding for parties altogether% Given the debate this issue has provo$ed in
northern !ountries, #here progressive for!es tend to favor state finan!ing of ele!tion
!a"paigns, so that the interests of the #ealthy do not predo"inate in politi!s, it see"s a
bit odd that a progressive politi!al "ove"ent #ould enshrine the prohibition of state
finan!ing in the !onstitution%
2eferenda
In so"e #ays, arti!les 7) to 7?, #hi!h establish the possibility for a variety of different
types of popular referenda, represents one of the "ost i"portant innovations of the ne#
!onstitution% (our types of referenda are possibleK !onsultative, re!all, approving, and
res!inding% Ia!h type has slightly different pro!edural reBuire"ents for their
i"ple"entation% Generally referenda !an either be initiated by the national asse"bly, the
president, or by petition fro" bet#een )0C and 20C of the registered voters% 4he
!onsultative referendu" is designed to as$ the population a non1binding Buestion of a
,national trans!endent- nature, su!h as #hether the !ountry should :oin a free trade
agree"ent, or a !urren!y union% 4he !onsultative referendu" #as also the one that the
opposition atte"pted to use in order to for!e Chve to resign, by as$ing the ele!torate
#hether or not he should resign% 4he supre"e !ourt, ho#ever, de!lared the Buestion
un!onstitutional, sin!e the re!all referendu" #as designed eEpli!itly for this purpose, but
!arries tougher reBuire"ents than the !onsultative referendu"% 4hat is, the re!all
referendu", #hi!h !an be applied to any ele!ted offi!e, #hether president, state
governor, national asse"bly representative, or !ity "ayor, !an only be i"ple"ented after
half of the ter" in offi!e has been !o"pleted% 4he approving referendu", :ust as the
re!all referendu", is binding and is used to pass i"portant la#s or to i"ple"ent treaties
that #ould infringe on national sovereignty% Also, this referendu" is used to approve of
a"end"ents to the !onstitution% (inally, the res!inding referendu" is used to res!ind
eEisting la#s%
.ocial, 6ducational, Cultural, and 6conomic 2ights
4he ne# !onstitution enshrines "any "ore rights besides the usual hu"an rights% A"ong
these are, /otherhood, for eEa"ple, is prote!ted fro" the point of !on!eption on,
"eaning that pre1natal !are is guaranteed 2though, "a$ing abortion so"e#hat "ore
diffi!ult3% Also, fa"ily planning is to be provided by the state% (urther, housing, health
!are, and e"ploy"ent, as "entioned earlier, are dis!ussed at length and are to be
guaranteed by the state% 0elated to e"ploy"ent rights the !onstitution states, ,Ivery
#or$er has the right to a suffi!ient salary that allo#s a life #ith dignity and !overs his
o#n and his fa"ily.s basi! "aterial, so!ial, and intelle!tual ne!essities%-F7G In relation to
e!ono"i! rights, the state is obligated to pro"ote and prote!t e!ono"i! de"o!ra!y, su!h
as !ooperatives%F+G
As !riti!s have pointed out, "any, if not "ost of these rights or state duties, are
i"possible for the state to !o"pletely fulfill in the near to "ediu" ter", given the li"ited
resour!es of the 'eneuelan state% &o#ever, as #ill be dis!ussed at the end of this
se!tion, advo!ates of the !onstitution see this se!tion of the !onstitution 2arti!les 781)2*3,
a"ong several others, as !ru!ial in setting an agenda or politi!al progra" for the future of
'eneuela%
&ndigenous 2ights
When it !a"e to for"ulating the rights of 'eneuela.s indigenous population, the
!onstitutional asse"bly turned the tas$ over to the representatives of the indigenous
population itself% 4his population of 3)9,000, #hi!h is relatively s"all !o"pared to that
of so"e other Latin A"eri!an !ountries 2about )%?C of the population3, is divided into
approEi"ately 29 ethni! groups% >uring the ele!tion of the representatives to the
!onstitutional asse"bly, Chve ensured that asse"bly.s rules #ould guarantee three
representatives to the !ountry.s indigenous population%
4he ne# !onstitution first of all re!ognies, for the first ti"e in 'eneuela.s history, the
indigenous population.s right to eEist, to its languages, !ultures, and to its territories% 4he
state thus also !o""its itself to help the indigenous !o""unities to de"ar!ate their
lands% 5eEt, the state guarantees that the eEploitation of natural resour!es in lands of the
indigenous population #ill not negatively affe!t the"%
Also unusual for a Latin A"eri!an state is that the state is !o""itted to not only prote!t,
but to pro"ote indigenous !ulture and languages, #hi!h, a"ong other things, "eans the
funding of bilingual edu!ation for the indigenous population% As another part of the
prote!tion of indigenous populations, the state "ust prote!t their intelle!tual property,
even forbidding outsiders to register patents based on indigenous $no#ledge%
(inally, :ust as #ith the !onstitutional asse"bly, the !onstitution guarantees the
indigenous population politi!al representation in the 5ational Asse"bly and in other
ele!ted bodies% Currently they are assured three out of the )30 seats in the 5ational
Asse"bly%
6nvironmental 2ights
Inviron"ental rights are another area that the !onstitution establishes very progressive
standards% (or eEa"ple, it !o""its the state to prote!t the environ"ent, biologi!al
diversity, geneti! resour!es, e!ologi!al pro!esses, and national par$s% Also, it prohibits
the patenting of the genes of living beings% &ighly unusual for a !onstitution is the
in!lusion of the obligation to issue environ"ental and so!io1!ultural i"pa!t reports for
any a!tivities that !ould !ause environ"ental da"age%
7ive powers instead of three
;erhaps one of the "ore unusual innovations of the !onstitution is the !reation of five
instead of the usual three govern"ental po#ers% In addition to the usual three of
legislative, eEe!utive, and :udi!iary, the ne# !onstitution adds an ele!toral po#er and a
!itien or publi! po#er%
4he !itien po#er is "eant to a!t as o"buds"an for the !ountry, assuring the other four
po#ers !o"ply #ith their !onstitutionally deter"ined fun!tions% 4he !itien po#er thus
!onsists of the attorney general, the defender of the people, and the !o"ptroller general%
@pe!ifi!ally, the !onstitution states that this po#er should ,prevent, investigate, and
san!tion deeds that go against publi! ethi!s and ad"inistrative "oralityM #at!h for good
"anage"ent and legality in the use of the publi! patri"ony, the fulfill"ent and the
appli!ation of the prin!iple of legality in all ad"inistrative a!tivity of the stateJ-F*G
4he division of labor bet#een the three offi!es is su!h that the defender of the people is
supposed to #at!h for the state.s adheren!e to hu"an rights% 4he attorney general.s
offi!e, in !ontrast fo!uses "ore on prose!uting !itien.s violations of the la#% (inally, the
!o"ptroller general #at!hes for !orruption and the proper ad"inistration of publi!
finan!es%
As for the fifth state po#er, the ele!toral, is !onstituted by the national ele!toral !oun!il,
#hi!h regulates and #at!hes over proper ele!toral pro!edures% It is prin!ipally in !harge
of state ele!tions, but !an also guard over the ele!tion of organiations of !ivil so!iety,
su!h as unions, either at the reBuest of the organiation or of the supre"e tribunal of
:usti!e 2the supre"e !ourt3%
3he /egislature
4he biggest !hange #ith respe!t to the legislature #as that it #as !hanged fro" a bi1
!a"eral syste", si"ilar to the H%@% Congress, to a uni!a"eral one% 4he argu"ent behind
this !hange #as that 'eneuela needed a legislature that #ould be "ore responsive to the
!ountry.s needs by being able to pass la#s "ore Bui!$ly% Criti!s, ho#ever, argued that
the !hange favors the !entraliation of the govern"ent be!ause the @enate, #hi!h had an
eBual nu"ber of representatives fro" ea!h state, :ust li$e in the H%@%, #as eli"inated% In
pra!ti!e, the ne# uni!a"eral 5ational Asse"bly has not been faster in approving la#s
than the old legislature% As a "atter of fa!t, the legislature has in the past fe# years fallen
far behind its legislative s!hedule% 4he reason for this, ho#ever, !an largely be tra!ed to
opposition stalling ta!ti!s that prevent the !on!lusion of debates on la#s%
5resident
;erhaps one of the "ost !ontroversial topi!s in the ne# !onstitution #as the offi!e of the
presiden!y% Chve insisted on in!reasing the presidential ter" fro" five to siE years and
to allo# his or her i""ediate and only reele!tion% ;reviously the president #as not
allo#ed to run for i""ediate reele!tion, but !ould eventually run again% 4his is #hat
enabled both 0afael Caldera and Carlos Andres ;ere to serve t#i!e as president, ea!h
during different de!ades in 'eneuela.s history%F)0G Chve. argu"ent for eEtending the
president.s ter" and for allo#ing i""ediate reele!tion #as that the tas$ of rebuilding
'eneuela is so great that a single five year ter" is not enough% Dften Chve even says
that the tas$ #ill last until the year 202), #hi!h has led "any of his opponents to a!!use
hi" of #anting to re"ain in offi!e until than, so"ething Chve has denied%
.tate role in the economy
Analysts su!h as Carlos Blan!oF))G argue that the ne# !onstitution assigns a "u!h larger
e!ono"i! role to the state than the previous !onstitution did% @e!tion 'I of the
!onstitution is !alled ,the so!io1e!ono"i! syste"- and outlines that the state is
responsible for pro"oting national industry, agri!ulture, and various other s"aller
bran!hes, su!h as fishing, !ooperatives, touris", s"all businesses, !rafts, et!% Beyond the
state.s obligation to pro"ote various aspe!ts of the e!ono"y, the type of so!io1e!ono"i!
syste" or even its general !hara!teristi!s are not spelled out, despite the se!tion.s title%
Civil 8isobedience
5ot "u!h attention #as paid to the se!tion about !ivil disobedien!e #hen the !onstitution
#as first #ritten% &o#ever, follo#ing the April 2002 !oup atte"pt, the opposition has
relied heavily on arti!les 333 and 380 to :ustify its Buestionable or illegal a!tions% Also,
during the >e!e"ber 2002 oil industry stri$e, oil industry "anagers "ade referen!e to
these arti!les to :ustify their shutting do#n of the oil industry%
4hese t#o arti!les basi!ally state that !itiens have an obligation to reestablish the
appli!ability of the !onstitution, should the !urrent govern"ent fail to follo# the
!onstitution% &o#ever, #hile the opposition has tended to use the ter" !ivil disobedien!e,
#hi!h has a long established "eaning in the !onteEt of !ivil rights struggles in the H%@%
and else#here, the !onstitution "erely uses the ter"s ,obligation to reestablish the
validity of the !onstitution- 2arti!le 3333 and ,people of 'eneuela J disavo# any
regi"e, legislation, or authority that !ontradi!ts the values, prin!iples, and de"o!rati!
guarantees or i"pair"ent of hu"an rights%- 2arti!le 3803 ;ro1govern"ent !onstitutional
la#yers have thus argued that neither of these arti!les per"its the brea$ing of la#s and
that and that the disavo#al of the ,regi"e- or the reestablish"ent of the de"o!rati! order
"ust re"ain #ithin the legal fra"e#or$%
Common Criticisms of the Constitution
Dne of the "ore !o""on serious !harges leveled against the )*** !onstitution is that it
strengthens the "ilitary.s role in 'eneuelan so!iety% ;erhaps "ost i"portantly in this
respe!t is that rather than having the legislature approve of "ilitary pro"otions, the tas$
has no# been pla!ed solely and dire!tly #ith the president, thereby tightening the
president.s !ontrol over the "ilitary% Criti!s,F)2G ho#ever, argue that this pla!es the
"ilitary "ore dire!tly at the servi!e of the president and of his politi!al progra"%
@pe!ifi!ally, they say that Chve is interested in a "ilitary that a!tively supports his
politi!al progra" and that only those #ho do so are pro"oted% Also, the ne# !onstitution
has given the "e"bers of the "ilitary the right to vote, so"ething that #as previously
denied to the", so as to $eep the" !o"pletely out of politi!s% 4he Chve govern"ent
aug"ented these !onstitutional !hanges #ith so"e ad"inistrative !hanges, su!h as
pla!ing around 200 a!tive duty offi!ers in different levels in various govern"ent
institutions% Also, he ordered the "ilitary to devise and i"ple"ent plans for !o"bating
poverty, su!h as the ;lan Bolivar 2000, #hi!h provides food aid to the poor via the
"ilitary.s infrastru!ture or the ;lan Avispa, #hi!h puts soldiers to #or$ in fiEing houses
in poor !o""unities%F)3G
Chve has often argued that a $ey ele"ent of his politi!al progra" is to revise the
relationship bet#een the population and the "ilitary, so that the "ilitary a!Buires a "ore
useful fun!tion in so!iety, one #hi!h goes beyond the "erely "ilitary and ta$es
advantage of its huge resour!es to help solve so!ial proble"s% In a sense, Chve has
argued that the "ilitary should be!o"e "ore ,!ivilian- in its fun!tions% Criti!s, ho#ever,
say that #hat has happened instead is that !ivilian so!iety has be!o"e "ore ,"ilitaried%-
@o"e have even gone so far as to argue that the real rulers in 'eneuela are the "ilitary,
not Chve%
&o#ever, ho# !an one tell if !ivilian so!iety is be!o"ing "ore "ilitaried or if the
"ilitary is be!o"ing "ore !ivilianN In either !ase, it is !ertain that the stri!t separation
bet#een "ilitary and !ivilian se!tors has been blurred% Dne indi!ation that the "ilitary is
not in !ontrol of the govern"ent and hen!e that the "ilitary is be!o"ing "ore !ivilian
instead of the other #ay around is that Chve, for the first ti"e in 'eneuela.s history
appointed a !ivilian as "inister of defense, Aos< 'i!ente 0angel% Also, #hile Chve has
"any retired "ilitary offi!ers a!tively involved in progra""ati! and ideologi!al
fun!tions of his govern"ent 2su!h as >iosdado Cabello3, these are still by and large
!ontrolled by !ivilians% A!tive duty offi!ers are "ostly in !harge of ad"inistrative
fun!tions in the Chve govern"ent%
Another area of !riti!is" of the )*** !onstitution is that it has !entralied presidential
po#er even "ore than the already so"e#hat presidentialist !onstitution of )*9)% 4he
in!reased presidential po#ers in!lude the ability to dissolve the 5ational Asse"bly,
follo#ing three votes of non1!onfiden!e by t#o thirds of the 5ational Asse"bly, de!lare
state of e"ergen!y, freely na"e "inisters and their area of responsibility,F)?G the
eEtension of the president.s ter" fro" five to siE years, and allo#ing for an i""ediate
!onse!utive reele!tion%F)8G
While !learly presidential po#ers have been in!reased, one "ust $eep in "ind that the
!onstitution balan!es these through in!reases in the population.s po#er via its ability to
!all for referenda to !hange the !onstitution, to abrogate la#s, and to re!all the
president.s "andate% Also, nu"erous other "eans for in!reased !itien parti!ipation
eEist, su!h as J%%
.ummary
4here is a large !onsensus both #ithin 'eneuela and a"ong foreign observers that
'eneuela no# has one of the #orld.s "ost ,advan!ed- !onstitutions% &o#ever, #hat
does this "eanN (or the "ost part those #ho praise the !onstitution "ean that it provides
for broad !itien parti!ipation, "a$ing 'eneuela a ,parti!ipatory de"o!ra!y,- rather
than "erely a representative one% Also, the !onstitution provides for so"e of the "ost
!o"prehensive hu"an rights prote!tions of any !onstitution in the #orld% (inally, its
in!lusion of spe!ial prote!tion for those traditionally "arginalied, su!h as #o"en and
the indigenous population and of the environ"ent "a$es 'eneuela.s !onstitution one of
the "ost responsive to the needs of the less po#erful%
@$epti!s of ho# i"portant 'eneuela.s ne# !onstitution is for the so!ial and politi!al
transfor"ation of the !ountry are Bui!$ to raise the point that "ost state so!ialist
!ountries had ,advan!ed- !onstitutions, #ith eEtensive hu"an rights and so!ial #elfare
guarantees, but that in pra!ti!e this "eant Buite little for the #ell1being andOor politi!al
opportunities of these !ountries. !itiens% Hlti"ately, #hat "a$es the differen!e bet#een
a !onstitution that is a!tually i"ple"ented and one that is "erely a for"ality on paper is
the !ountry.s politi!al !ulture% If the institutions, !itiens, politi!al leaders, and state
offi!ials generally abide by the letter and spirit of the !onstitution, as part of the
population.s #orld vie# and politi!al !ulture, the !onstitution #ill be very signifi!ant
be!ause infra!tion of the la# #ill be !aught and prose!uted% &o#ever, if there is a
politi!al !ulture in #hi!h the la# is regularly subverted and interpreted in #ays that
violate its spirit, as #as the !ase in state so!ialis", then the !onstitution #ill be "ostly
"eaningless%
Given the foregoing, #hat $ind of politi!al !ulture does 'eneuela haveN As a "easure
of politi!al !ulture and the adheren!e to the rule of la#, one !ould ta$e 'eneuela.s
Corruption ;er!eption IndeE, as "easured by 4ransparen!y International,F)9G #here
'eneuela ran$s in the +)st pla!e fro" the top of the list, the least !orrupt, or tenth pla!e
fro" the botto", the "ost !orrupt, in the sa"e ran$ as Albania, Guate"ala, and
5i!aragua and :ust belo# ;a$istan, the ;hilippines, 0o"ania, and Pa"bia% Df !ourse,
these are "erely per!eptions, #hi!h !an be heavily influen!ed by the "edia% And in
'eneuela the "edia, #hi!h is an a!tive part of the opposition to the govern"ent, #ould
have an interest in eEaggerating the degree of !orruption that eEists in 'eneuela sin!e
the ele!tion of Chve% 5onetheless, it is probably fair to say that in 'eneuela
!orruption and hen!e a generalied la!$ of respe!t for the rule of la# is Buite #idespread,
#hi!h does not bode #ell for the ne# !onstitution% 4he April 2002 !oup atte"pt, the
!onseBuent suspension of the !onstitution, and the a!!eptan!e of these a!ts in a large part
of the population further reinfor!es the i"pression that 'eneuela.s politi!al !ulture
plays fast and loosely #ith the rule of la#%
>espite the proble"s #ith 'eneuela.s politi!al !ulture and the i"pli!ations this has for
the effe!tiveness of the !onstitution, the )*** !onstitution #as not in vain% Another
i"portant aspe!t of 'eneuela.s politi!al !ulture is the intensity and the high regard in
#hi!h the !ountry.s poor regard it% As anyone #ho !o"es to 'eneuela !an see, the
!onstitution is sold in s"all for"at 2approE% 8!" E )0!"3 at al"ost every street !orner%
At pro1govern"ent de"onstrations parti!ipants #ave it as though it #ere their party.s
banner% In Cir!ulos Bolivarianos and in other pro1govern"ent politi!al study groups,
people read and study the !onstitution% 5one of this !an be said for the )*9) !onstitution,
#hi!h fe# in the general population had ever read% In other #ords, the )*** !onstitution
has be!o"e "ore than ,:ust- a !onstitution% It is a politi!al pro:e!t to#ards #hi!h pro1
Chve 'eneuelans #ant to "ove the so!iety% 0oland >enis, a long1ti"e politi!al
organier in the barrios of Cara!as and for"er 'i!e1/inister for lo!al planning, puts it
this #ayK
,4here #as no real !entral revolutionary organiation here% What #e had #as a "ass
rebellion "ove"ent 7 first a rebellion of the "asses Fin )*+*G and then rebellions of the
"ilitary Ft#o in )**2G% 4hese #ere very heterogeneous, dispersed, frag"ented% What
united the" #as the pro:e!t to develop a ne# basis, a ne# !onstitution% 5o one #ould
have been able to !entralie this "ove"ent.s progra", not even Chve% &is leadership
#as and is undisputed, but his ideas #ould not have been enough to bring together the
"ove"ent% 4he !onstitution fills this gap% It is a politi!al progra" and si"ultaneously
serves the purpose of providing a fra"e#or$ for the pro!ess% 4his !onstitution is not
si"ply a dead teEt% It refle!ts values and prin!iples% ;erhaps not enough, perhaps one #ill
have to refor" it, "aybe later one #ill not need it any"ore for the revolutionary pro!ess%
But at the "o"ent it has the fun!tion of 9ao's /ittle 2ed :ookK It represents the de"ands
and goals of the grassroots "ove"ent%-F)7G
Ideally, of !ourse, a !onstitution should not be a politi!al progra"% 0ather, its
reBuire"ents and provisions should be a so!ial reality, not so"ething to be strived for%
&o#ever, given that !onstitutions and the rule of la# are rule syste"s to #hi!h
'eneuelans and "any Latin A"eri!an peoples in general have a relatively loose
relationship to#ards, it is better to have a !onstitution that the people ai" to "a$e a
reality than to have one #hi!h everyone ignores, both in its present and future
i"ple"entation% While a !onstitution that is not an a!tual pra!ti!al reality see"s, :ust as it
#as in the @oviet Hnion, #orthless, it is not #orthless if the general population a!tively
strives to "a$e it a reality% I #ould argue that in 'eneuela the politi!ally a!tive portion
of the population, for the "ost part both in the opposition and a"ong govern"ent
supporters, are indeed using the !onstitution as 0oland >enis suggests, as so"ething to
be "ade a reality%
Audi!ial 0efor"
Df all of 'eneuela.s publi! institutions, its :udi!ial syste" has histori!ally perhaps had
one of the #orst reputations% A!!ording to a study by the La#yers Co""ittee for &u"an
0ights,
&n many ways, the judiciary symboli+ed all that had gone wrong with ;ene+uela's
political system. 3he roots of the crisis in the judiciary intertwine several areas< political
interference, corruption, institutional neglect, and the failure to provide access to justice
for the vast part of the ;ene+uelan population. F)+G
>uring the early )**0.s, the World Ban$ offered to help 'eneuela.s :usti!e syste", thus
providing the Ban$.s first loan for this type of tas$% &o#ever, due to the politi!al tur"oil
of the )**0.s, #ith the )**2 !oup atte"pts, the i"pea!h"ent of ;resident Carlos Andres
;ere, and ;resident 0afael Caldera.s un#illingness to #or$ #ith the World Ban$,
nothing ever !a"e of the Ban$.s refor" plans%
&o#ever, #hen Chve #as ele!ted, the ne# govern"ent laun!hed on a "a:or refor"
progra", !o"pletely overhauling the !ountry.s :udi!ial syste", along #ith the ne#
!onstitution% (ro" the legal perspe!tive, the :udi!ial syste" #as !hanged su!h that the
ne# !onstitution "ade the :udi!iary "ore independent fro" the other bran!hes of
govern"ent% 4hat is, the entire :udi!ial syste" #ould be under the !ontrol of the @upre"e
4ribunal of Austi!e% Also, rather than the legislature ele!ting @upre"e Court :usti!es by
si"ple "a:ority, as the previous syste" reBuired, the ne# !onstitution reBuired :usti!es to
be ele!ted #ith a t#o1thirds "a:ority, along #ith tighter reBuire"ents individuals to
be!o"e no"inees in the first pla!e, su!h as publi! hearings% Also, so that the legislature.s
budgetary po#er !annot be used to put pressure on the :udi!iary, the ne# la# #hi!h
regulates the fun!tioning of the :udi!iary 2,Ley Drgani!a del ;oder Audi!ial-3 reBuires
that a fiEed per!entage of the overall govern"ent budget auto"ati!ally goes to#ards the
:udi!iary%
In ter"s of over!o"ing the eEisting "ostly !orrupt stru!tures and :udges, Chve, under
the prin!ipal guidan!e of one of his "ain advisors, Luis /iBuilena, !reated a ,Audi!ial
0estru!turing Co""ission,- #hi!h #as to revie# all of the !ountry.s :udgeships and
repla!e :udges #herever ne!essary% Given the #idespread unhappiness #ith the old
:udi!ial syste", Chve. "oves to refor" the :udi!iary #ere #el!o"ed by the vast
"a:ority of the population% 4he un"anageably large #or$load of this !o""ittee and its
understaffing, ho#ever, "ade it pra!ti!ally i"possible to !arefully revie# all :udges%
Instead, an eEpedient #as put in pla!e, su!h that all :udges that had eight or "ore !harges
of !orruption pending against the" #ould auto"ati!ally be re"oved% As a result, around
FBGW)G +0C of the !ountry.s :udges #ere re"oved fro" offi!e #ithin a very short
a"ount of ti"e, "ostly during the year 2000%
4o repla!e those #ho #ere re"oved, the restru!turing !o""ission to a large eEtent
pla!ed provisional :udges, sin!e it did not have ti"e to fully revie# the ne#
appoint"ents% 4o#ards the end of the year 2000, about 70C of the :udges in the !apital
region 2Cara!as, /iranda and 'argas states3,F)*G #ere provisional% 4his, of !ourse, has
led to the very !redible !harge that the ne# :udges #ill be even "ore beholden to their
politi!al benefa!tors, Chve and /iBuilena, than :udges #ere ever before, sin!e the
provisional :udges !an be re"oved al"ost at #ill% 4he Andean Co""ission of Aurists, in
its annual report on the 'eneuelan :udi!ial syste" says, for eEa"ple, that ,It is
pre"ature to !on!lude that in 'eneuela the institutions that for" part of the :udi!ial
syste" are autono"ous%-F20G In other #ords, the suspi!ion is that rather than a!tually
refor"ing the :udi!ial syste" to "a$e it better, the refor" !onsisted "erely in a
repla!e"ent of old governing party :udges for :udges loyal to the ne# governing party%
It appears that a large part of the bla"e for the failure of real refor" in the !ountry.s
:udi!ial syste" !an be pla!ed at the feet of Luis /iBuilena, #ho Chve had pla!ed in
!harge of the :udi!ial restru!turing pro!ess%
Also, /iBuilena.s po#er #ithin the !ountry.s :udi!ial syste" !ould be seen in the !ourse
of the !ourt pro!eedings against the offi!ers involved in the April 2002 !oup atte"pt
against Chve% It is #ell $no#n that /iBuilena #as instru"ental in appointing the
@upre"e 4ribunal Court :udges and that these o#ed a strong allegian!e to hi"% 4he
appoint"ent of the :udges #as a !lassi!al eEa"ple of horse1trading% @in!e no party
!ontrolled enough votes in the 5ational Asse"bly to appoint all of the :udges, a deal had
to be stru!$ #ith the opposition% A!!ording to so"e insiders,F2)G the deal #as su!h that
the /'0 got )? of the 20 :udges, A!!ion >e"o!rati!a four, and ;roye!to 'eneuela
t#o% &o#ever, #hen /iBuilena left the govern"ent, it is said that at least four /'0
:udges re"ained loyal to hi", thus dividing the !ourt "ore or less evenly bet#een
Chve supporters and Chve opponents% 4his be!a"e parti!ularly !lear during the pre1
trial hearings against the !oup offi!ers, #hose !harges ended up being dis"issed in
August 2002%
F)G &ugo Chve, intervie#ed by /arta &arne!$er, ta$en fro"K 1ugo Ch=ve+< >n
1ombre, >n 5ueblo% 220023
F2G 4he other !ountries that @i"on Bolivar liberated are Colo"bia, I!uador, ;eru, and
Bolivia% In theory, ho#ever, any !ountry that subs!ribed to the prin!iples or goals of
@i"on Bolivar, #hi!h in!luded the unifi!ation of all of Latin A"eri!an !ould !onsider
itself a ,Bolivarian 0epubli!%-
F3G @ee, for eEa"ple, Carol >elgado, 2esponse 9aga+ine, Aune, 2003, ,4he 5on1
Andro!entri! Constitution of Bolivarian 0epubli! of 'eneuela%-
F?G (or eEa"ple, the Ger"an !onstitution refers to the Ger"an state as a ,2echtsstaat,- a
,state of la#%-
F8G Constitu!i=n de la 0epQbli!a Bolivariana de 'eneuela, IEposi!i=n de /otivos,
4itulo ), ;rin!ipios (unda"entales%
F9G (or "ore detail on #o"en.s rights and the !onstitution, see Carol >elgado, 2esponse
9aga+ine, Aune, 2003, ,4he 5on1Andro!entri! Constitution of Bolivarian 0epubli! of
'eneuela%-
F7G Arti!le *)%
F+G Arti!le ))+%
F*G Arti!le 27?
F)0G 0afael Caldera #as president during )*9*1)*7? and )**?1)***M Carlos Andres
;ere during )*7?1)*7* and )*+*1)**3%
F))G p% 2?8, 2evoluci?n y 8esilusi?n, 2002, Libros de Catarata
F)2G in addition to Carlos Blan!o, seeK &arald 4rin$unas, a Latin A"eri!a "ilitary eEpert
of the H%@% navy, author of ,Civil1/ilitary 0elations in 'eneuela after April ))-K
httpKOO###%!!!%nps%navy%"ilOrsep0esour!esOsiO"ay02OlatinA"eri!a%asp% Dther Inglish1
language sour!es on 'eneuela.s !ivil1"ilitary relations in!ludeK >aniel Levine and
Brian Crisp, RLegiti"a!y, Governability and 0efor" in 'eneuela,R in Good"an et al%
Lessons of the 'eneuelan IEperien!eM /ois<s 5aS", R 4he 0eal @tory Behind
'eneuelaTs Woes,R Aournal of >e"o!ra!y )2 2April 200)3K )713)M Winfield Burggraaff
and 0i!hard /illett, 4he Crisis in 'eneuelan Civil1/ilitary 0elationsR in Good"an et
al%M (elipe AgUero, R>ebilitating >e"o!ra!yK ;oliti!al Ilites and /ilitary 0ebels,R in
Good"an et alMR >eborah 5orden, R>e"o!ra!y and /ilitary Control in 'eneuela,R
Latin A"eri!an 0esear!h 0evie# 33 223K)?31)98, )**+% &arold 4rin$unas, 4he Crisis in
'eneuelan Civil1/ilitary 0elationsK (ro" ;unto (i:o to the (ifth 0epubli!,- Latin
A"eri!an 0esear!h 0evie# 37 220023K?)179%
F)3G 4hese plans #ill be dis!ussed in greater detail in !hapter 3, ,@o!ial ;oli!ies%-
F)?G 4he previous !onstitution reBuired the legislature to approve of "inisterial
appoint"ents%
F)8G ;reviously presidents !ould only be reele!ted after being out of offi!e for ten years%
F)9G @eeK httpKOO###%transparen!y%orgO!piO2002O!pi2002%en%ht"l
F)7G 0oland >enis in an intervie# #ith 0aul Peli$, published in Ger"an inK .ubtropen%
0eprinted here #ith per"ission fro" the intervie#er%
F)+G ,&alf#ay to 0efor"K 4he World Ban$ and the 'eneuelan Austi!e @yste"- August
)**9, atK ###%l!hr%orgOpubsOdes!riptionsOhalf#ay%ht"
F)*G @our!eK Ivalua!i=n 2000 de la Co"isi=n Coordinadora de Ivalua!i=n y Con!ursos
para el Ingreso y ;er"anen!ia en el ;oder Audi!ial 2alsoK ###%!a:pe%org%pe3
F20G ta$en fro" the 2002 reportK ###%!a:pe%org%peOri:ObasesOrefor"aOven9%ht"
F2)G @ee (ran!is!o 4oro.s a!!ount of (ebruary 2+, 2003 atK
###%!ara!as!hroni!les%blogspot%!o"