Constitution of Venezuela

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Constitution of Venezuela (1999).

The Constitution of the Bolivarian Republic of Venezuela is the current and twenty-sixth constitution of Venezuela.[1] It was drafted in mid-1999 by a constitutional assembly that had been created by popular referendum. Adopted in December 1999, it replaced the 1961 Constitution, the longest-serving in Venezuelan history.[2] It was primarily promoted by former President of Venezuela Hugo Chávez and thereafter received strong backing from diverse sectors, including figures involved in promulgating the 1961 constitution such as Luis Miquilena and Carlos Andrés Pérez. Chávez and his followers (chavistas) refer to the 1999 document as the "Constitución Bolivariana" (the "Bolivarian Constitution") because they assert that it is ideologically descended from the thinking and political philosophy of Simón Bolívar and Bolivarianism.

The Constitution of 1999 was the first constitution approved by popular referendum in Venezuelan history, and summarily inaugurated the so-called "Fifth Republic" of Venezuela due to the socioeconomic changes foretold in its pages, as well as the official change in Venezuela's name from the República de Venezuela ("Republic of Venezuela") to the República Bolivariana de Venezuela ("Bolivarian Republic of Venezuela"). Major changes are made to the structure of Venezuela's government and responsibilities, while a much greater number of human rights are enshrined in the document as guaranteed to all Venezuelans – including free education up to tertiary level, free health care, access to a clean environment, right of minorities (especially indigenous peoples) to uphold their own traditional cultures, religions, and languages, among others. The 1999 Constitution, with 350 articles, is among the world's longest, most complicated, and most comprehensive constitutions.

One of the outstanding differences between Venezuelan and most of the other constitutions of the Americas is the lack of the possibility of impeachment of the president by the national parliament. Instead, it enables citizens to remove the president through a recall referendum.

Origins

Conceptualization

President Hugo Chávez holds aloft a miniature copy of the 1999 Venezuelan constitution at the 2005 World Social Forum held in Porto Alegre, Brazil.

President Hugo Chávez was first elected under the provisions of the 1961 Constitution in the presidential election of 6 December 1998. Chávez had been contemplating a constitutional convention for Venezuela as an ideal means to rapidly bring about sweeping and radical social change to Venezuela beginning from the eve of his 1992 coup attempt. Chávez would state later that:

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 1990-1991, when there was a constitutional assembly – of course! – it was very limited because in the end it was subordinated to the existing powers. It was the existing 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 existing powers and thoughts.[3]

After his imprisonment and release, he began to seek a political career with such a convention as its political goal. Thus, in the 1998 presidential elections, one of Chávez's electoral promises was to organise a referendum asking the people if they wanted to convene a National Constituent Assembly. His very first decree as president was thus to order such a referendum, which took place on 19 April. The electorate were asked two questions – whether a constituent assembly should be convened, and whether it should follow the mechanisms proposed by the president. The "yes" vote in response to these two question totalled 92% and 86%, respectively.[3]

Election of the Constitutional Assembly

Elections were then held, on 25 July, to elect 131 deputies to the Constituent Assembly, which convened and debated proposals during the remainder of 1999. Chávez's widespread popularity allowed the constitutional referendum to pass with a 72% 'yes' vote; in the second election, members of Chávez's MVR and select allied parties formed the Polo Patriotico ("Patriotic Axis"). Chávez's Polo Patriotico went on to win 92% (120 out of 131 seats) of the seats in the new voter-approved Venezuelan Constitutional Assembly.

The "judicial emergency committee"

Conflict soon arose between the Constitutional Assembly and the older institutions it was supposed to reform or replace. During his 1998 presidential campaign, and in advance of the 25 July elections to the Assembly, Chávez had maintained that the new body would immediately have precedence over the existing National Assembly and the courts, including the power to dissolve them if it so chose.[4] Against this, some of his opponents, including notably the Chief Justice of the Supreme Court, Cecilia Sosa Gomez, argued that the Constitutional Assembly must remain subordinate to the existing institutions until the constitution it produced had been ratified.[5]

In mid August 1999, the Constitutional Assembly moved to restructure the nation's judiciary, claiming the power to fire judges, seeking to expedite the investigations of corruption outstanding against what the New York Times estimated were nearly half of the nation's 4700 judges, clerks, and bailiffs.[6] On 23 August, the Supreme Court voted 8–6 that the Assembly was not acting unconstitutionally in assuming those powers; however, the next day Cecilia Sosa Gomez resigned in protest. Over 190 judges were eventually suspended on charges of corruption.

On 25 August, the Constitutional Assembly declared a "legislative emergency," voting to limit the National Assembly's work to matters such as supervising the budget and communications. In response, the National Assembly, which in July had decided to go into recess until October to avoid conflict with the Constitutional Assembly, declared its recess over, effective 27 August.

At one point the Constitutional Assembly prohibited the National Assembly from holding meetings of any sort. However, on 10 September, the two bodies reached an agreement allowing for their "coexistence" until the new constitution took effect.[7]

Framing of the new constitution

Afterward, over the span of a mere 60 days in late 1999, the new and voter-approved Constitutional Assembly would frame and found a document that enshrined as constitutional law most of the structural changes Chávez desired. Chávez stated such changes were necessary in order to successfully and comprehensively enact his planned social justice programs. Sweeping changes in Venezuelan governmental structure were to be made; Chávez's plan was, stemming from his 1998 campaign pledges, thus to dramatically open up Venezuelan political discourse to independent and third parties by radically altering the national political context. In the process, Chávez sought to fatally paralyse his AD and COPEI opposition. All Chávez's aims were, in one move, dramatically furthered.

This new 1999 constitution was presented to the national electorate on 15 December 1999 and approved with a 72% "yes" vote (audited by the National Electoral Council). The new constitution then legally came into full effect the following 20 December.

Text and guiding doctrines

The text of the constitution is a hybrid of jurisprudential and political norms drawn from sources as wide as Simón Bolívar's writings on constitutionality and popular sovereignty, José Martí, the Peruvian Marxist José Carlos Mariátegui, and Evgeny Pashukanis. It is essentially a Bolivarian-Marxist charter, incorporating elements of popular sovereignty (such as frequent referendums), social responsibilities, the right to rebel against injustice and the independence of the republic from foreign domination.

Innovations of the new constitution

The Constitutional Assembly itself drafted the new 1999 Venezuelan constitution. With 350 articles, the document was, as drafted, one of the world's lengthiest constitutions.

Name of the state

Despite the initial reluctance of the constituent assembly's deputies, it changed the country's official name from the "Republic of Venezuela"” to the "Bolivarian Republic of Venezuela". The change was made largely at Chávez's personal insistence.[8]

Five branches of government

Significant changes were made to the separation of powers. Instead of the usual three branches of government, the new Bolivarian Republic of Venezuela has five (Article 136):[9]

  1. The executive branch (the Presidency).
  2. The legislative branch (the National Assembly).
  3. The judicial branch (the judiciary).
  4. The electoral branch (poder electoral, or "electoral power").
  5. The citizens' branch (poder ciudadano, or "citizens' power").

The electoral branch is headed by the National Electoral Council (CNE) and is responsible for the independent oversight of all elections in the country, municipal, state, and federal. The citizens' branch is constituted by the (defensor del pueblo) (ombudsman or "defender of the people"), the Chief Public Prosecutor (fiscal general), and the comptroller general (contralor general). It is responsible for representing and defending the citizens in their dealings with powers of the Venezuelan state. The legislative branch was changed from a bicameral system to a unicameral system.

A strengthened and recallable presidency

It also increased the presidential term of office from five to six years, subject to a limit of two terms. The document also introduced provisions for national presidential recall referendums – that is, Venezuelan voters now were to be given the right to remove their president from office before the expiration of the presidential term. Such referendums were to be activated upon provision of petitions with a valid number of signatures. The new provision was activated for the first time when such a referendum was held in 2004, but it failed to receive majority support. See Venezuelan recall referendum, 2004. The presidency was also strengthened, with the power to dissolve the National Assembly under certain conditions.

In 2009, term limits (not only that for president) were abolished by a referendum.

Political parties

State financing of political parties was eliminated. Previously the state financed the two major political parties, the Acción Democratica and Copei.[10]

A unicameral and weakened legislature

The new constitution also converted the formerly bicameral National Assembly into a unicameral legislature, and stripped it of many of its former powers. Thus, the new single-chamber National Assembly dropped the prior traditional arrangement of the bifurcation of legislative powers between a Chamber of Deputies and a Senate. In addition, the legislative branch's powers were substantially reduced and transferred to the President of Venezuela.

The Public Defender

Provision was also made for a new position, the Public Defender (Defensoría del Pueblo), which was to be an ombudsman office with the authority to check the activities of the presidency, the National Assembly, and the constitution – Chávez styled such a defender as the guardian of the so-called 'moral branch' of the Venezuelan government, tasked with defending public and moral interests.

This is an idea derived from Bolivar's constitutionalism.

Public examination for judicial candidates

Lastly, the Venezuelan judiciary was reformed. Judges would, under the new constitution, be installed after passing public examinations and not, as in the old manner, be appointed by the National Assembly.

Human rights

The constitution recognises civil rights, such as the freedom of expression, assembly, and political participation are included, as well as socio-economic rights, such as the right to employment, housing, and health care.[10]

Health care

As Articles 83–85 under Title III of the 1999 Venezuelan Constitution enshrine free and quality healthcare as a human right guaranteed to all Venezuelan citizens,[11] the Hugo Chávez administration attempted to fulfill its constitutional obligations via the Barrio Adentro program. Notably, Article 84 under Title III mandate that the healthcare furnished through such public programmes as Barrio Adentro be publicly funded, and explicitly proscribes under any circumstance its privatization. The relevant text from the 1999 Bolivarian Constitution reads:[12]

Article 83: Health is a fundamental social right and the responsibility of the State, which shall guarantee it as part of the right to life. The State shall promote and develop policies oriented toward improving the quality of life, common welfare and access to services. All persons have the right to protection of health, as well as the duty to participate actively in the furtherance and protection of the same, and to comply with such health and hygiene measures as may be established by law, and in accordance with international conventions and treaties signed and ratified by the Republic.

Article 84: In order to guarantee the right to health, the State creates, exercises guidance over and administers a national public health system that crosses sector boundaries, and is decentralized and participatory in nature, integrated with the social security system and governed by the principles of gratuity, universality, completeness, fairness, social integration and solidarity. The public health system gives priority to promoting health and preventing disease, guaranteeing prompt treatment and quality rehabilitation. Public health assets and services are the property of the State and shall not be privatized. The organized community has the right and duty to participate in the making- of decisions concerning policy planning, implementation and control at public health institutions.

Article 85: Financing of the public health system is the responsibility of the State, which shall integrate the revenue resources, mandatory Social Security contributions and any other sources of financing provided for by law. The State guarantees a health budget such as to make possible the attainment of health policy objectives. In coordination with universities and research centers, a national professional and technical training policy and a national industry to produce health care supplies shall be promoted and developed. The State shall regulate both public and private health care institutions.

Women's rights

Progressive principles were implemented in the constitution with relation to women's rights. These additions made the government responsible for evaluating policies for discriminatory effects.[10] Motherhood, is now protected from the point of conception. This makes pre-natal care guaranteed and family planning provided by the state but conversely makes abortion more difficult.[10]

Article 21: All persons are equal before the law, and, consequently:

1. No discrimination based on race, sex, creed or social standing shall be permitted, nor, in general, any discrimination with the intent or effect of nullifying or encroaching upon the recognition, enjoyment or exercise, on equal terms, of the rights and liberties of every individual.
2. The law shall guarantee legal and administrative conditions such as to make equality before the law real and effective manner; shall adopt affirmative measures for the benefit of any group that is discriminated against, marginalized or vulnerable; shall protect in particular those persons who, because of any of the aforementioned circumstances, are in a manifestly weak position; and shall punish those who abuse or mistreat such persons.
3. People will only be officially addressed as Citizens, except for diplomatic forms.

4. No titles of nobility or hereditary distinctions shall be recognized.[13]

Changes to businesses

Article 308:

The State shall protect and promote small and medium-sized manufacturers, cooperatives, savings funds, family-owned businesses, small businesses and any other form of community association for purposes of work, savings and consumption under an arrangement of collective ownership, to strengthen the country's economic development, based on the initiative of the people.[13]

Article 308 of Title VI the Venezuelan constitution showed a changed view on businesses. This article sought to introduce support for alternative management of businesses. Mentioned in the article are cooperatives, family-owned businesses, small businesses and savings funds. The government supported these alternatives as a way to democratize capital and challenge oligopolistic control of the economy.[14] Cooperativism in Venezuela became a more prevalent business option after the introduction of this government support. Government support of cooperatives is found in Article 118 of Title III.

Article 118:

The right of workers and the community to develop associations of social and participative nature such as cooperatives, savings funds, mutual funds and other forms of association is recognized. These associations may develop any kind of economic activities in accordance with the law. The law shall recognize the specificity of these organizations, especially those relating the cooperative, the associated work and the generation of collective benefits.

The state shall promote and protect these associations destined to improve the popular economic alternative.[13]

Amendments

Amendments proposed by President Chávez and parliament were twice decided in referendums:

See also

References

  1. ↑ Planchart Manrique, Gustavo. "Constituciones de Venezuela" in Diccionario de Historia de Venezuela. Caracas: Fundación Polar, 1997. ISBN 980-6397-37-1
  2. ↑ Elkins, Zachary, Tom Ginsburg, and James Melton. 2009. The Endurance of National Constitutions. Cambridge: Cambridge University Press.
  3. 1 2 Wilpert, Gregory. (Venezuela Analysis, 27 Aug 2003). Venezuela’s New Constitution. Retrieved 9 Nov 2005.
  4. ↑ Russell Pelle, "Venezuela enters 2000 with progressive new constitution," People's Weekly World.
  5. ↑ Larry Rohter, "Voters Push Power Toward Venezuela Leader," New York Times, 26 July 1999.
  6. ↑ Larry Rohter, New York Times, 27 August 2009.
  7. ↑ El Pais (Spanish), 11 September 1999.
    Also, McGirk, Tim. (Time, 27 Dec 1999). "Hugo Chávez Frías". Retrieved 3 Nov 2005.
  8. ↑ Wilpert, Gregory. "Venezuela’s New Constitution". venezuelaanalysis.com. Retrieved 13 April 2015.
  9. ↑ Textt of Article 136
  10. 1 2 3 4 http://venezuelanalysis.com/analysis/70
  11. ↑ "Archived copy" (PDF). Archived from the original (PDF) on 18 January 2005. Retrieved 3 December 2004.
  12. ↑ Title Iii
  13. 1 2 3 http://venezuelanalysis.com/constitution
  14. ↑ Patrick Clark. Sowing the Oil? The Chavez Government's Policy Framework for an Alternative Food System in Venezuela. Humboldt Journal of Social Relations 33:1/2. pp. 135–65
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