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Opinion and Analysis: Law and Justice

Venezuela’s New Constitution

History of Constitutional Reform

It has been said that before Chávez became president it was not all that clear which way he intended to take the country. He seemed to be promising different things, depending on his audience. However, on one issue he was clear from the beginning, and that was his intention to write a new constitution for Venezuela. Following the 1989 Caracas riots, the “Caracazo,” in which anywhere between 300 and over 1,000 people died, Chávez’ military movement, the MBR-200 (Movimiento Bolivariano Revolucionario), began a discussion of how it should go about completely reforming Venezuelan society. By the time his movement was ready to launch the 1992 coup, it had decided to focus on the convocation of a constitutional assembly.

“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.”[1]

Then, when Chávez was a prisoner following his 1992 coup attempt, he studied political theorists, including Antonio Negri, a prominent contemporary leftist theorist who has written much about the “constituent power” and the need for a constituent (or constitutional) assembly, in order to place a country on a new revolutionary foundation. By the time Chávez was actively campaigning for the presidency in 1998, the plan to write a new constitution for Venezuela was one of his most consistently articulated plans. This plan was so definite that Chávez’ political party was called the “Fifth Republic Movement” (Movimiento Quinta Republica, or MVR – the “V” meaning the Roman number 5), as a signal that with a new constitution Venezuela would be beginning the fifth republic of its history, since the country’s founding in 1811.

It should be noted that the effort to either completely rewrite or to reform Venezuela’s constitution was nothing new in Venezuelan history. Between 1811 and 1961 Venezuela had 26 constitutions. The 1961 constitution lasted the longest, until 1999. However, it too has been subject to several reform efforts during the 1990’s. President Carlos Andrés Pérez, following the Caracazo, made some changes which allowed for greater participation in Venezuela’s political system, by allowing for the direct vote of state governors and mayors. This was the first step which eventually allowed for more parties besides Acción Democrática and Copei to be represented on state and local level. Further changes to the constitution were planned, but never implemented. Then, following Chávez’ 1992 coup attempt, the calls for a new constitution were renewed. This too faltered within a few months. During his 1994 presidential campaign, Rafael Caldera brought the issue up again, but did not get far.

Following his election in December 1998, the first thing Chávez did as newly elected president, was to schedule a referendum on whether or not Venezuelans want to convoke a constitutional assembly. The 1961 constitution, which had lasted much longer than any previous Venezuelan constitution (37 years), did not provide for any mechanisms for calling a constitutional assembly. Some had argued that it was necessary to reform the 1961 constitution to include such a provision. Instead, a human rights organization, Fundahumanos, filed a case with the Venezuelan Supreme Court, on December 16, 1998, asking it to issue a constitutional interpretation as to the constitutionality of holding a referendum for the approval of a constitutional assembly. About a month later, on January 19, 1999, the court issued a ruling in Favor of Chávez’ preferred path to write a new constitution. This court decision still remains controversial among members of the opposition, who argue that the court thereby opened the path for a dictatorship.

The referendum took place on April 19 and had two questions. The first was whether or not to convoke the assembly and the second was whether or not voters accept the procedures set forth by the president. 92% of those voting voted “yes” in response to the question about convoking a constitutional assembly and 86% approved of the procedures set forth by the president (with an abstention rate of 63%). Two months later, on July 25th, the vote for the members of the constitutional assembly took place. The procedure was such that 24 members to the assembly were elected nationally, three as representatives of the indigenous population, and the rest, 104 were elected as representatives from their respective states. All together there were 131 members of the constitutional assembly, all of which were elected directly, via a simply majority. As a result of Chávez’ overwhelming popularity 95%, or 125 of the representatives, were allied with Chávez’ political project. Only six belonged to the opposition.

The members of the constitutional assembly immediately began with their work. However, it was quickly realized that plenary sessions were too time consuming and so, because Chávez wanted the assembly to complete its work within six months, it met primarily in 22 commissions. Also, a debate broke out between the opposition and the assembly’s majority on whether or not the assembly had the right to take over normal legislative functions. Chávez and his supporters argued that since the assembly was the highest legislative representative of the sovereign, of the people, the assembly should take precedence over the legislature. With help from the judiciary, Chávez’ view won out. By December the document was ready and on the 15th it was submitted to a national vote. 71.8% of the voters approved the new constitution, with an abstention rate of 55.6%.

The 1999 Constitution of the Bolivarian Republic of Venezuela

This section examines some of the more important changes that the new constitution brought with it.

Name Change

The new constitution changed the country’s name, from “Republic of Venezuela” to “Bolivarian Republic of Venezuela.” This was a change that Chávez insisted upon, even after his own supporters in the constitutional assembly rejected it, mainly because it would imply too much of an expense to change all of the government’s letterheads, official seals, etc. finally, however, Chávez’ convinced the assembly and the name change was included. The new name is supposed to signal that Venezuela is just one of the countries that its founder, Simon Bolivar, liberated and that it could, in the future, belong to a federation of “Bolivarian Republics.”[2] Given the great importance that Simon Bolivar plays in Chávez’ political belief system, it should come as no surprise that he would insist on this change.

Gender inclusivity

Unlike practically all constitutions ever written, Venezuela’s now incorporates the masculine and the feminine versions of all political actors it mentions. That is, the Spanish language, just as most languages (except English), distinguishes between the masculine and feminine versions of job titles, such as “presidente” and “presidenta.” Now, every time there is a reference to any individual, such as president, citizen, lawyer, representative, minister, etc., the reference is in both the masculine and the feminine forms. This inclusivity makes the Venezuelan constitution what some have called a “non-androcentric” constitution.[3] The implication of using only the masculine versions is that either women are not considered to be serious participants in the political sphere or that if they do participate, they ought to be like men. By including both the masculine and feminine versions of the different roles that political actors have, the constitution makes explicit the invitation that women participate equally in politics, without being like men.

State of Law and Justice

Article 2 of the constitution says that “Venezuela constitutes itself in a democratic and social state of law and justice…” This stands in contrast to many other country’s constitutions, which simply say that its state is a state of law.[4] In other words, the Venezuelan constitution highlights the possible differences between law and justice, implying that justice is just as important as the law, which might not always bring about justice. The constitution’s declaration of motives, which precede the official constitutional text, elaborates on the concept of justice by saying, “the state promotes the well-being of Venezuelans, creating the necessary conditions for their social and spiritual development, and striving for equality of opportunity so that all citizens may freely develop their personality, direct their destiny, enjoy human rights and search for their happiness.”[5] Critics of the constitution have argued that this conception of a state of justice, which contrasts with the state of law, could lead to situations in which a vaguely defined notion of justice prevails of the law, thus opening the possibility of a supposedly benevolent dictatorship. However, given that article 2 is the only time that the contrast between law and justice is drawn, it is unlikely that there would be any further constitutional basis for such an interpretation of the constitution.

Human Rights and International Treaties

Before Chávez came to power Venezuela was formally bound by human rights standards, but in practice often violated them. Torture, censorship, and violations of the right to assembly were quite common, especially during the second presidency of Carlos Andres Perez (1989-1993). Those who suffered from these human rights violations were to a very large extent the same people who swept into power with the election of Chávez as president. Many of these individuals thus participated in the formulation of the new constitution as members of the constitutional assembly. As a result, they gave human rights a central place in the constitution. However, the human rights that the constitution mentions go far beyond what most constitutions incorporate. Not only civil rights, such as the freedom of expression, assembly, and political participation are included, but so are social human rights, such as the right to employment, housing, and health care. For example, with regard to health care, the constitution states, “Health is a fundamental social right, an obligation of the state, which guarantees it as part of the right to life.” In practice, this has opened health care to many Venezuelans who previously did not have access to it.

A further innovation of the new constitution is the inclusion of international treaties as having equal standing with the constitution, meaning that they must be enforced in the same way.

Women’s Rights [6]

In terms of women’s rights, the constitution incorporates some of the most progressive principles on this issue. For example, the constitution adopts the definition of discrimination that has been set up by the “Convention for the Elimination of all forms of Discrimination against Women” (CEDAW). This definition states that acts are considered discriminatory not only if they are meant as such, but also when they have the effect of producing inequality. Article 21 thus states, “all persons are equal before the law and consequently: 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 impairing upon the recognition, enjoyment or exercise, on equal terms, of the rights and liberties of every individual.” What this means in practice is that public policies must be reexamined for their possible discriminatory effects. For example, if women were under-represented at public universities, the state would have to examine the causes for this and eliminate any barriers that exist that cause fewer women then men to attend the university.

Another important women’s right that the new constitution includes is the right of women homemakers to receive social security benefits on account of the work they perform in the home. Specifically, it says, “The State guarantees the equality and equitable treatment of men and women in the exercise of the right to work. The state recognizes work at home as an economic activity that creates added value and produces social welfare and wealth. Homemakers are entitled to Social Security in accordance with law.” (Article 88) However, due to the financial problems of the Venezuelan state, this article has not yet been put into practice.

Right to Information

Article 58, which guarantees the right to information, was one of the more controversial articles while the constitution was being discussed in the constitutional assembly. The reason for this is that this article states that citizens not only have the right to information, but that they have the right to information that is “timely, true, and impartial.” Members of the opposition read this article as providing the state with the possibility to censor information that is not considered “true” or “impartial.” However, the next words contradict such an interpretation, by saying that such information is to be provided “without censorship, in accordance with the principles of this constitution.” Also, as of this writing, no effort at censorship has been made by the Chávez government, even though previous Venezuelan governments would have done so immediately, given the extreme hostility of the press towards the president and his administration.

Political Parties

State financing of political parties was eliminated with the new constitution. Previously, the state had provided generous financing to the two main political parties, Acción Democratica and Copei. However, with their complete loss of credibility and the corruption associated with state financing, the constitutional assembly decided to eliminate state funding for parties altogether. Given the debate this issue has provoked in northern countries, where progressive forces tend to favor state financing of election campaigns, so that the interests of the wealthy do not predominate in politics, it seems a bit odd that a progressive political movement would enshrine the prohibition of state financing in the constitution.

Referenda

In some ways, articles 71 to 74, which establish the possibility for a variety of different types of popular referenda, represents one of the most important innovations of the new constitution. Four types of referenda are possible: consultative, recall, approving, and rescinding. Each type has slightly different procedural requirements for their implementation. Generally referenda can either be initiated by the national assembly, the president, or by petition from between 10% and 20% of the registered voters. The consultative referendum is designed to ask the population a non-binding question of a “national transcendent” nature, such as whether the country should join a free trade agreement, or a currency union. The consultative referendum was also the one that the opposition attempted to use in order to force Chávez to resign, by asking the electorate whether or not he should resign. The supreme court, however, declared the question unconstitutional, since the recall referendum was designed explicitly for this purpose, but carries tougher requirements than the consultative referendum. That is, the recall referendum, which can be applied to any elected office, whether president, state governor, national assembly representative, or city mayor, can only be implemented after half of the term in office has been completed. The approving referendum, just as the recall referendum, is binding and is used to pass important laws or to implement treaties that would infringe on national sovereignty. Also, this referendum is used to approve of amendments to the constitution. Finally, the rescinding referendum is used to rescind existing laws.

Social, Educational, Cultural, and Economic Rights

The new constitution enshrines many more rights besides the usual human rights. Among these are, Motherhood, for example, is protected from the point of conception on, meaning that pre-natal care is guaranteed (though, making abortion somewhat more difficult). Also, family planning is to be provided by the state. Further, housing, health care, and employment, as mentioned earlier, are discussed at length and are to be guaranteed by the state. Related to employment rights the constitution states, “Every worker has the right to a sufficient salary that allows a life with dignity and covers his own and his family’s basic material, social, and intellectual necessities.”[7] In relation to economic rights, the state is obligated to promote and protect economic democracy, such as cooperatives.[8]

As critics have pointed out, many, if not most of these rights or state duties, are impossible for the state to completely fulfill in the near to medium term, given the limited resources of the Venezuelan state. However, as will be discussed at the end of this section, advocates of the constitution see this section of the constitution (articles 75-129), among several others, as crucial in setting an agenda or political program for the future of Venezuela.

Indigenous Rights

When it came to formulating the rights of Venezuela’s indigenous population, the constitutional assembly turned the task over to the representatives of the indigenous population itself. This population of 316,000, which is relatively small compared to that of some other Latin American countries (about 1.4% of the population), is divided into approximately 26 ethnic groups. During the election of the representatives to the constitutional assembly, Chávez ensured that assembly’s rules would guarantee three representatives to the country’s indigenous population.

The new constitution first of all recognizes, for the first time in Venezuela’s history, the indigenous population’s right to exist, to its languages, cultures, and to its territories. The state thus also commits itself to help the indigenous communities to demarcate their lands. Next, the state guarantees that the exploitation of natural resources in lands of the indigenous population will not negatively affect them.

Also unusual for a Latin American state is that the state is committed to not only protect, but to promote indigenous culture and languages, which, among other things, means the funding of bilingual education for the indigenous population. As another part of the protection of indigenous populations, the state must protect their intellectual property, even forbidding outsiders to register patents based on indigenous knowledge.

Finally, just as with the constitutional assembly, the constitution guarantees the indigenous population political representation in the National Assembly and in other elected bodies. Currently they are assured three out of the 130 seats in the National Assembly.

Environmental Rights

Environmental rights are another area that the constitution establishes very progressive standards. For example, it commits the state to protect the environment, biological diversity, genetic resources, ecological processes, and national parks. Also, it prohibits the patenting of the genes of living beings. Highly unusual for a constitution is the inclusion of the obligation to issue environmental and socio-cultural impact reports for any activities that could cause environmental damage.

Five powers instead of three

Perhaps one of the more unusual innovations of the constitution is the creation of five instead of the usual three governmental powers. In addition to the usual three of legislative, executive, and judiciary, the new constitution adds an electoral power and a citizen or public power.

The citizen power is meant to act as ombudsman for the country, assuring the other four powers comply with their constitutionally determined functions. The citizen power thus consists of the attorney general, the defender of the people, and the comptroller general. Specifically, the constitution states that this power should “prevent, investigate, and sanction deeds that go against public ethics and administrative morality; watch for good management and legality in the use of the public patrimony, the fulfillment and the application of the principle of legality in all administrative activity of the state…”[9]

The division of labor between the three offices is such that the defender of the people is supposed to watch for the state’s adherence to human rights. The attorney general’s office, in contrast focuses more on prosecuting citizen’s violations of the law. Finally, the comptroller general watches for corruption and the proper administration of public finances.

As for the fifth state power, the electoral, is constituted by the national electoral council, which regulates and watches over proper electoral procedures. It is principally in charge of state elections, but can also guard over the election of organizations of civil society, such as unions, either at the request of the organization or of the supreme tribunal of justice (the supreme court).

The Legislature

The biggest change with respect to the legislature was that it was changed from a bi-cameral system, similar to the U.S. Congress, to a unicameral one. The argument behind this change was that Venezuela needed a legislature that would be more responsive to the country’s needs by being able to pass laws more quickly. Critics, however, argued that the change favors the centralization of the government because the Senate, which had an equal number of representatives from each state, just like in the U.S., was eliminated. In practice, the new unicameral National Assembly has not been faster in approving laws than the old legislature. As a matter of fact, the legislature has in the past few years fallen far behind its legislative schedule. The reason for this, however, can largely be traced to opposition stalling tactics that prevent the conclusion of debates on laws.

President

Perhaps one of the most controversial topics in the new constitution was the office of the presidency. Chávez insisted on increasing the presidential term from five to six years and to allow his or her immediate and only reelection. Previously the president was not allowed to run for immediate reelection, but could eventually run again. This is what enabled both Rafael Caldera and Carlos Andres Perez to serve twice as president, each during different decades in Venezuela’s history.[10] Chávez’ argument for extending the president’s term and for allowing immediate reelection was that the task of rebuilding Venezuela is so great that a single five year term is not enough. Often Chávez even says that the task will last until the year 2021, which has led many of his opponents to accuse him of wanting to remain in office until than, something Chávez has denied.

State role in the economy

Analysts such as Carlos Blanco[11] argue that the new constitution assigns a much larger economic role to the state than the previous constitution did. Section VI of the constitution is called “the socio-economic system” and outlines that the state is responsible for promoting national industry, agriculture, and various other smaller branches, such as fishing, cooperatives, tourism, small businesses, crafts, etc. Beyond the state’s obligation to promote various aspects of the economy, the type of socio-economic system or even its general characteristics are not spelled out, despite the section’s title.

Civil Disobedience

Not much attention was paid to the section about civil disobedience when the constitution was first written. However, following the April 2002 coup attempt, the opposition has relied heavily on articles 333 and 350 to justify its questionable or illegal actions. Also, during the December 2002 oil industry strike, oil industry managers made reference to these articles to justify their shutting down of the oil industry.

These two articles basically state that citizens have an obligation to reestablish the applicability of the constitution, should the current government fail to follow the constitution. However, while the opposition has tended to use the term civil disobedience, which has a long established meaning in the context of civil rights struggles in the U.S. and elsewhere, the constitution merely uses the terms “obligation to reestablish the validity of the constitution” (article 333) and “people of Venezuela … disavow any regime, legislation, or authority that contradicts the values, principles, and democratic guarantees or impairment of human rights.” (article 350) Pro-government constitutional lawyers have thus argued that neither of these articles permits the breaking of laws and that and that the disavowal of the “regime” or the reestablishment of the democratic order must remain within the legal framework.

Common Criticisms of the Constitution

One of the more common serious charges leveled against the 1999 constitution is that it strengthens the military’s role in Venezuelan society. Perhaps most importantly in this respect is that rather than having the legislature approve of military promotions, the task has now been placed solely and directly with the president, thereby tightening the president’s control over the military. Critics,[12] however, argue that this places the military more directly at the service of the president and of his political program. Specifically, they say that Chávez is interested in a military that actively supports his political program and that only those who do so are promoted. Also, the new constitution has given the members of the military the right to vote, something that was previously denied to them, so as to keep them completely out of politics. The Chávez government augmented these constitutional changes with some administrative changes, such as placing around 200 active duty officers in different levels in various government institutions. Also, he ordered the military to devise and implement plans for combating poverty, such as the Plan Bolivar 2000, which provides food aid to the poor via the military’s infrastructure or the Plan Avispa, which puts soldiers to work in fixing houses in poor communities.[13]

Chávez has often argued that a key element of his political program is to revise the relationship between the population and the military, so that the military acquires a more useful function in society, one which goes beyond the merely military and takes advantage of its huge resources to help solve social problems. In a sense, Chávez has argued that the military should become more “civilian” in its functions. Critics, however, say that what has happened instead is that civilian society has become more “militarized.” Some have even gone so far as to argue that the real rulers in Venezuela are the military, not Chávez.

However, how can one tell if civilian society is becoming more militarized or if the military is becoming more civilian? In either case, it is certain that the strict separation between military and civilian sectors has been blurred. One indication that the military is not in control of the government and hence that the military is becoming more civilian instead of the other way around is that Chávez, for the first time in Venezuela’s history appointed a civilian as minister of defense, José Vicente Rangel. Also, while Chávez has many retired military officers actively involved in programmatic and ideological functions of his government (such as Diosdado Cabello), these are still by and large controlled by civilians. Active duty officers are mostly in charge of administrative functions in the Chávez government.

Another area of criticism of the 1999 constitution is that it has centralized presidential power even more than the already somewhat presidentialist constitution of 1961. The increased presidential powers include the ability to dissolve the National Assembly, following three votes of non-confidence by two thirds of the National Assembly, declare state of emergency, freely name ministers and their area of responsibility,[14] the extension of the president’s term from five to six years, and allowing for an immediate consecutive reelection.[15]

While clearly presidential powers have been increased, one must keep in mind that the constitution balances these through increases in the population’s power via its ability to call for referenda to change the constitution, to abrogate laws, and to recall the president’s mandate. Also, numerous other means for increased citizen participation exist, such as …..

Summary

There is a large consensus both within Venezuela and among foreign observers that Venezuela now has one of the world’s most “advanced” constitutions. However, what does this mean? For the most part those who praise the constitution mean that it provides for broad citizen participation, making Venezuela a “participatory democracy,” rather than merely a representative one. Also, the constitution provides for some of the most comprehensive human rights protections of any constitution in the world. Finally, its inclusion of special protection for those traditionally marginalized, such as women and the indigenous population and of the environment makes Venezuela’s constitution one of the most responsive to the needs of the less powerful.

Skeptics of how important Venezuela’s new constitution is for the social and political transformation of the country are quick to raise the point that most state socialist countries had “advanced” constitutions, with extensive human rights and social welfare guarantees, but that in practice this meant quite little for the well-being and/or political opportunities of these countries’ citizens. Ultimately, what makes the difference between a constitution that is actually implemented and one that is merely a formality on paper is the country’s political culture. If the institutions, citizens, political leaders, and state officials generally abide by the letter and spirit of the constitution, as part of the population’s world view and political culture, the constitution will be very significant because infraction of the law will be caught and prosecuted. However, if there is a political culture in which the law is regularly subverted and interpreted in ways that violate its spirit, as was the case in state socialism, then the constitution will be mostly meaningless.

Given the foregoing, what kind of political culture does Venezuela have? As a measure of political culture and the adherence to the rule of law, one could take Venezuela’s Corruption Perception Index, as measured by Transparency International,[16] where Venezuela ranks in the 81st place from the top of the list, the least corrupt, or tenth place from the bottom, the most corrupt, in the same rank as Albania, Guatemala, and Nicaragua and just below Pakistan, the Philippines, Romania, and Zambia. Of course, these are merely perceptions, which can be heavily influenced by the media. And in Venezuela the media, which is an active part of the opposition to the government, would have an interest in exaggerating the degree of corruption that exists in Venezuela since the election of Chávez. Nonetheless, it is probably fair to say that in Venezuela corruption and hence a generalized lack of respect for the rule of law is quite widespread, which does not bode well for the new constitution. The April 2002 coup attempt, the consequent suspension of the constitution, and the acceptance of these acts in a large part of the population further reinforces the impression that Venezuela’s political culture plays fast and loosely with the rule of law.

Despite the problems with Venezuela’s political culture and the implications this has for the effectiveness of the constitution, the 1999 constitution was not in vain. Another important aspect of Venezuela’s political culture is the intensity and the high regard in which the country’s poor regard it. As anyone who comes to Venezuela can see, the constitution is sold in small format (approx. 5cm x 10cm) at almost every street corner. At pro-government demonstrations participants wave it as though it were their party’s banner. In Circulos Bolivarianos and in other pro-government political study groups, people read and study the constitution. None of this can be said for the 1961 constitution, which few in the general population had ever read. In other words, the 1999 constitution has become more than “just” a constitution. It is a political project towards which pro-Chávez Venezuelans want to move the society. Roland Denis, a long-time political organizer in the barrios of Caracas and former Vice-Minister for local planning, puts it this way:

“There was no real central revolutionary organization here. What we had was a mass rebellion movement – first a rebellion of the masses [in 1989] and then rebellions of the military [two in 1992]. These were very heterogeneous, dispersed, fragmented. What united them was the project to develop a new basis, a new constitution. No one would have been able to centralize this movement’s program, not even Chávez. His leadership was and is undisputed, but his ideas would not have been enough to bring together the movement. The constitution fills this gap. It is a political program and simultaneously serves the purpose of providing a framework for the process. This constitution is not simply a dead text. It reflects values and principles. Perhaps not enough, perhaps one will have to reform it, maybe later one will not need it anymore for the revolutionary process. But at the moment it has the function of Mao’s Little Red Book: It represents the demands and goals of the grassroots movement.”[17]

Ideally, of course, a constitution should not be a political program. Rather, its requirements and provisions should be a social reality, not something to be strived for. However, given that constitutions and the rule of law are rule systems to which Venezuelans and many Latin American peoples in general have a relatively loose relationship towards, it is better to have a constitution that the people aim to make a reality than to have one which everyone ignores, both in its present and future implementation. While a constitution that is not an actual practical reality seems, just as it was in the Soviet Union, worthless, it is not worthless if the general population actively strives to make it a reality. I would argue that in Venezuela the politically active portion of the population, for the most part both in the opposition and among government supporters, are indeed using the constitution as Roland Denis suggests, as something to be made a reality.

Judicial Reform

Of all of Venezuela’s public institutions, its judicial system has historically perhaps had one of the worst reputations. According to a study by the Lawyers Committee for Human Rights,

In many ways, the judiciary symbolized all that had gone wrong with Venezuela’s political system. The 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 Venezuelan population. [18]

During the early 1990’s, the World Bank offered to help Venezuela’s justice system, thus providing the Bank’s first loan for this type of task. However, due to the political turmoil of the 1990’s, with the 1992 coup attempts, the impeachment of President Carlos Andres Perez, and President Rafael Caldera’s unwillingness to work with the World Bank, nothing ever came of the Bank’s reform plans.

However, when Chávez was elected, the new government launched on a major reform program, completely overhauling the country’s judicial system, along with the new constitution. From the legal perspective, the judicial system was changed such that the new constitution made the judiciary more independent from the other branches of government. That is, the entire judicial system would be under the control of the Supreme Tribunal of Justice. Also, rather than the legislature electing Supreme Court justices by simple majority, as the previous system required, the new constitution required justices to be elected with a two-thirds majority, along with tighter requirements individuals to become nominees in the first place, such as public hearings. Also, so that the legislature’s budgetary power cannot be used to put pressure on the judiciary, the new law which regulates the functioning of the judiciary (“Ley Organica del Poder Judicial”) requires that a fixed percentage of the overall government budget automatically goes towards the judiciary.

In terms of overcoming the existing mostly corrupt structures and judges, Chávez, under the principal guidance of one of his main advisors, Luis Miquilena, created a “Judicial Restructuring Commission,” which was to review all of the country’s judgeships and replace judges wherever necessary. Given the widespread unhappiness with the old judicial system, Chávez’ moves to reform the judiciary were welcomed by the vast majority of the population. The unmanageably large workload of this committee and its understaffing, however, made it practically impossible to carefully review all judges. Instead, an expedient was put in place, such that all judges that had eight or more charges of corruption pending against them would automatically be removed. As a result, around [BGW1] 80% of the country’s judges were removed from office within a very short amount of time, mostly during the year 2000.

To replace those who were removed, the restructuring commission to a large extent placed provisional judges, since it did not have time to fully review the new appointments. Towards the end of the year 2000, about 70% of the judges in the capital region (Caracas, Miranda and Vargas states),[19] were provisional. This, of course, has led to the very credible charge that the new judges will be even more beholden to their political benefactors, Chávez and Miquilena, than judges were ever before, since the provisional judges can be removed almost at will. The Andean Commission of Jurists, in its annual report on the Venezuelan judicial system says, for example, that “It is premature to conclude that in Venezuela the institutions that form part of the judicial system are autonomous.”[20] In other words, the suspicion is that rather than actually reforming the judicial system to make it better, the reform consisted merely in a replacement of old governing party judges for judges loyal to the new governing party.

It appears that a large part of the blame for the failure of real reform in the country’s judicial system can be placed at the feet of Luis Miquilena, who Chávez had placed in charge of the judicial restructuring process.

Also, Miquilena’s power within the country’s judicial system could be seen in the course of the court proceedings against the officers involved in the April 2002 coup attempt against Chávez. It is well known that Miquilena was instrumental in appointing the Supreme Tribunal Court judges and that these owed a strong allegiance to him. The appointment of the judges was a classical example of horse-trading. Since no party controlled enough votes in the National Assembly to appoint all of the judges, a deal had to be struck with the opposition. According to some insiders,[21] the deal was such that the MVR got 14 of the 20 judges, Accion Democratica four, and Proyecto Venezuela two. However, when Miquilena left the government, it is said that at least four MVR judges remained loyal to him, thus dividing the court more or less evenly between Chávez supporters and Chávez opponents. This became particularly clear during the pre-trial hearings against the coup officers, whose charges ended up being dismissed in August 2002.



[1] Hugo Chávez, interviewed by Marta Harnecker, taken from: Hugo Chávez: Un Hombre, Un Pueblo. (2002)

[2] The other countries that Simon Bolivar liberated are Colombia, Ecuador, Peru, and Bolivia. In theory, however, any country that subscribed to the principles or goals of Simon Bolivar, which included the unification of all of Latin American could consider itself a “Bolivarian Republic.”

[3] See, for example, Carol Delgado, Response Magazine, June, 2003, “The Non-Androcentric Constitution of Bolivarian Republic of Venezuela.”

[4] For example, the German constitution refers to the German state as a “Rechtsstaat,” a “state of law.”

[5] Constitución de la República Bolivariana de Venezuela, Exposición de Motivos, Titulo 1, Principios Fundamentales.

[6] For more detail on women’s rights and the constitution, see Carol Delgado, Response Magazine, June, 2003, “The Non-Androcentric Constitution of Bolivarian Republic of Venezuela.”

[7] Article 91.

[8] Article 118.

[9] Article 274

[10] Rafael Caldera was president during 1969-1974 and 1994-1999; Carlos Andres Perez during 1974-1979 and 1989-1993.

[11] p. 245, Revolución y Desilusión, 2002, Libros de Catarata

[12] in addition to Carlos Blanco, see: Harald Trinkunas, a Latin America military expert of the U.S. navy, author of “Civil-Military Relations in Venezuela after April 11”:

http://www.ccc.nps.navy.mil/rsepResources/si/may02/latinAmerica.asp. Other English-language sources on Venezuela’s civil-military relations include: Daniel Levine and Brian Crisp, "Legitimacy, Governability and Reform in Venezuela," in Goodman et al. Lessons of the Venezuelan Experience; Moisés Naím, " The Real Story Behind Venezuela's Woes," Journal of Democracy 12 (April 2001): 17-31; Winfield Burggraaff and Richard Millett, The Crisis in Venezuelan Civil-Military Relations" in Goodman et al.; Felipe Agüero, "Debilitating Democracy: Political Elites and Military Rebels," in Goodman et al;" Deborah Norden, "Democracy and Military Control in Venezuela," Latin American Research Review 33 (2):143-165, 1998. Harold Trinkunas, The Crisis in Venezuelan Civil-Military Relations: From Punto Fijo to the Fifth Republic,” Latin American Research Review 37 (2002):41-76.

[13] These plans will be discussed in greater detail in chapter 3, “Social Policies.”

[14] The previous constitution required the legislature to approve of ministerial appointments.

[15] Previously presidents could only be reelected after being out of office for ten years.

[17] Roland Denis in an interview with Raul Zelik, published in German in: Subtropen. Reprinted here with permission from the interviewer.

[18] “Halfway to Reform: The World Bank and the Venezuelan Justice System” August 1996, at: www.lchr.org/pubs/descriptions/halfway.htm

[19] Source: Evaluación 2000 de la Comisión Coordinadora de Evaluación y Concursos para el Ingreso y Permanencia en el Poder Judicial (also: www.cajpe.org.pe)

[21] See Francisco Toro’s account of February 28, 2003 at: www.caracaschronicles.blogspot.com