Venezuela New Constitution Analysis

8/12/2019 Venezuela New Constitution Analysis

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governors and "ayors% 4his #as the first step #hi!h eventually allo#ed for "ore parties

besides A!!i=n >e"o!ráti!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#ingCháve. )**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, afael Caldera

brought the issue up again, but did not get far%

(ollo#ing his ele!tion in >e!e"ber )**+, the first thing Cháve 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 37 years, 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

anuary )*, )***, the !ourt issued a ruling in (avor of Cháve. preferred path to #rite ane# !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 uestions% 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% *2 of those voting voted yes- in response to the

uestion about !onvo$ing a !onstitutional asse"bly and +9 approved of the pro!edures

set forth by the president #ith an abstention rate of 93% 4#o "onths later, on uly

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 asrepresentatives 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 Cháve. over#hel"ing popularity *8, or )28 of the representatives, #ere

allied #ith Cháve. 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$%&o#ever, it #as ui!$ly realied that plenary sessions #ere too ti"e !onsu"ing and so,

be!ause Cháve #anted the asse"bly to !o"plete its #or$ #ithin siE "onths, it "et

pri"arily in 22 !o""issions% Also, a debate bro$e out bet#een the opposition and theasse"bly.s "a:ority on #hether or not the asse"bly had the right to ta$e over nor"al

legislative fun!tions% Cháve and his supporters argued that sin!e the asse"bly #as the

highest legislative representative of the sovereign, of the people, the asse"bly shouldta$e pre!eden!e over the legislature% With help fro" the :udi!iary, Cháve. 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)%+ of the voters approved the ne# !onstitution, #ith an abstention rate of

88%9%

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" epubli! of 'eneuela- toBolivarian epubli! of 'eneuela%- 4his #as a !hange that Cháve 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, Cháve. !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 epubli!s%-F2 Given the great i"portan!e that

@i"on Bolivar plays in Cháve. 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 eE!ept nglish, 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 non1andro!entri!- !onstitution%F3 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$e "en% By in!luding both the "as!uline andfe"inine versions of the different roles that politi!al a!tors have, the !onstitution "a$eseEpli!it the invitation that #o"en parti!ipate eually 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? 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 euality of opportunity so that all !itiens "ay freelydevelop their personality, dire!t their destiny, en:oy hu"an rights and sear!h for their

happiness%-F8 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 vaguelydefined notion of :usti!e prevails of the la#, thus opening the possibility of a supposedly

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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%

uman 2ights and &nternational 3reaties

Before Cháve !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 uite !o""on, espe!ially during the se!ond presiden!y of Carlos Andres;ere )*+*1)**3% 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 Cháve 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% (oreEa"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 eual standing #ith the !onstitution, "eaning that they "ust be enfor!ed in thesa"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 ofdis!ri"ination that has been set up by the Convention for the li"ination of all for"s of

>is!ri"ination against Wo"en- C>AW% 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 ineuality% Arti!le 2) thus states, all persons are eual before the la#and !onseuentlyK 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 eual ter"s, of the rights andliberties 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 andeli"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" inthe ho"e% @pe!ifi!ally, it says, 4he @tate guarantees the euality and euitable 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#%- Arti!le ++&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 !ontroversialarti!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"bersof 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 Cháve govern"ent, eventhough 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 differenttypes 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% a!h type has slightly different pro!edural reuire"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 )0 and 20 of the registered voters% 4he

!onsultative referendu" is designed to as$ the population a non1binding uestion of a

national trans!endent- nature, su!h as #hether the !ountry should :oin a free tradeagree"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 Cháve to resign, by as$ing the ele!torate

#hether or not he should resign% 4he supre"e !ourt, ho#ever, de!lared the uestionun!onstitutional, sin!e the re!all referendu" #as designed eEpli!itly for this purpose, but



!arries tougher reuire"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 afterhalf 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 ofa"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"ongthese are, /otherhood, for eEa"ple, is prote!ted fro" the point of !on!eption on,

"eaning that pre1natal !are is guaranteed though, "a$ing abortion so"e#hat "ore

diffi!ult% 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% elated to e"ploy"ent rights the !onstitution states, very#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%-F7 In relation toe!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+

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"itedresour!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 arti!les 781)2*,

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 thatof so"e other Latin A"eri!an !ountries about )%? of the population, is divided into

approEi"ately 29 ethni! groups% >uring the ele!tion of the representatives to the

!onstitutional asse"bly, Cháve ensured that asse"bly.s rules #ould guarantee threerepresentatives 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 theirlands% 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 otherele!ted bodies% Currently they are assured three out of the )30 seats in the 5ational

Asse"bly%

6nvironmental 2ights

nviron"ental rights are another area that the !onstitution establishes very progressivestandards% (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 thein!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 oflegislative, 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*

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.soffi!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 reuest of the organiation or of the supre"e tribunal of :usti!e the supre"e !ourt%





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 behindthis !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 ui!$ly% Criti!s, ho#ever, argued thatthe !hange favors the !entraliation of the govern"ent be!ause the @enate, #hi!h had an

eual 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 toopposition 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% Cháve insisted on in!reasing the presidential ter" fro" five to siE years andto 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 afael Caldera and Carlos Andres ;ere to serve t#i!e as president, ea!h

during different de!ades in 'eneuela.s history%F)0 Cháve. 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 Cháve even says

that the tas$ #ill last until the year 202), #hi!h has led "any of his opponents to a!!usehi" of #anting to re"ain in offi!e until than, so"ething Cháve has denied%

tate role in the economy

Analysts su!h as Carlos Blan!oF)) 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 hasrelied heavily on arti!les 333 and 380 to :ustify its uestionable 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 theappli!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 thevalidity of the !onstitution- arti!le 333 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%- arti!le 380 ;ro1govern"ent !onstitutionalla#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)2 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 Cháve 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 Cháve govern"entaug"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)3

Cháve has often argued that a $ey ele"ent of his politi!al progra" is to revise therelationship bet#een the population and the "ilitary, so that the "ilitary a!uires 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, Cháve 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 Cháve%

&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 !ivilianinstead of the other #ay around is that Cháve, for the first ti"e in 'eneuela.s history

appointed a !ivilian as "inister of defense, os< 'i!ente angel% Also, #hile Cháve has

"any retired "ilitary offi!ers a!tively involved in progra""ati! and ideologi!alfun!tions of his govern"ent su!h as >iosdado Cabello, 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 Cháve 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)? theeEtension of the president.s ter" fro" five to siE years, and allo#ing for an i""ediate

!onse!utive reele!tion%F)8

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 providesfor 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, itsin!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%

@$epti!s of ho# i"portant 'eneuela.s ne# !onstitution is for the so!ial and politi!altransfor"ation of the !ountry are ui!$ 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 uite little for the #ell1being andOor politi!al

opportunities of these !ountries. !itiens% Hlti"ately, #hat "a$es the differen!e bet#eena !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 thatviolate 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.sCorruption ;er!eption IndeE, as "easured by 4ransparen!y International,F)9 #here










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 portionof the population, for the "ost part both in the opposition and a"ong govern"ent

supporters, are indeed using the !onstitution as oland >enis suggests, as so"ething to

be "ade a reality%

udi!ial efor"

Df all of 'eneuela.s publi! institutions, its :udi!ial syste" has histori!ally perhaps hadone of the #orst reputations% A!!ording to a study by the La#yers Co""ittee for &u"an

ights,

&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< politicalinterference, corruption, institutional neglect, and the failure to provide access to justice

for the vast part of the ene+uelan population. F)+

>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"oilof the )**0.s, #ith the )**2 !oup atte"pts, the i"pea!h"ent of ;resident Carlos Andres

;ere, and ;resident afael Caldera.s un#illingness to #or$ #ith the World Ban$,

nothing ever !a"e of the Ban$.s refor" plans%

&o#ever, #hen Cháve #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 ofgovern"ent% 4hat is, the entire :udi!ial syste" #ould be under the !ontrol of the @upre"e

4ribunal of usti!e% Also, rather than the legislature ele!ting @upre"e Court :usti!es by

si"ple "a:ority, as the previous syste" reuired, the ne# !onstitution reuired :usti!es to be ele!ted #ith a t#o1thirds "a:ority, along #ith tighter reuire"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!hregulates the fun!tioning of the :udi!iary Ley Drgani!a del ;oder udi!ial- reuires

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, Cháve, underthe prin!ipal guidan!e of one of his "ain advisors, Luis /iuilena, !reated a udi!ial

estru!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", Cháve. "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) +0 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 70 of the :udges in the !apital

region Cara!as, /iranda and 'argas states,F)* #ere provisional% 4his, of !ourse, hasled to the very !redible !harge that the ne# :udges #ill be even "ore beholden to their

politi!al benefa!tors, Cháve and /iuilena, than :udges #ere ever before, sin!e the

provisional :udges !an be re"oved al"ost at #ill% 4he Andean Co""ission of urists, inits 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%-F20 In other #ords, the suspi!ion is that rather than a!tuallyrefor"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 /iuilena, #ho Cháve had pla!ed in!harge of the :udi!ial restru!turing pro!ess%

Also, /iuilena.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 Cháve% It is #ell $no#n that /iuilena #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) the deal #as su!h thatthe /' got )? of the 20 :udges, A!!ion >e"o!rati!a four, and ;roye!to 'eneuela

t#o% &o#ever, #hen /iuilena left the govern"ent, it is said that at least four /' :udges re"ained loyal to hi", thus dividing the !ourt "ore or less evenly bet#een

Cháve supporters and Cháve 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) &ugo Cháve, intervie#ed by /arta &arne!$er, ta$en fro"K ugo Ch=ve+< >n

ombre, >n 5ueblo% 2002

F2 4he other !ountries that @i"on Bolivar liberated are Colo"bia, !uador, ;eru, andBolivia% 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 epubli!%-

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Venezuela New Constitution Analysis

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