Constitution of Venezuela
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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 quality 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.
Origins
Conceptualization
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 71.78% '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 91.6% (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 nations judiciary, giving itself 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 1999 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.
Ratification by popular referendum
This new 1999 constitution was presented to the national electorate
in 15 December 1999 and approved with a 71.78% "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.
Reforms introduced by the 1999 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.
Venezuela's official name: the "Bolivarian Republic of Venezuela"
Despite the initial reluctance of the constituent assembly's
deputies, it changed the country's official name from "Republic of
Venezuela"” to the "Bolivarian Republic of Venezuela". The change was
made largely at Chávez's personal insistence.
[8]
Five branches in the Venezuelan 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):
- The executive branch (the Presidency).
- The legislative branch (the National Assembly).
- The judicial branch (the judiciary).
- The electoral branch (poder electoral, or "electoral power").
- 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.
[9]
A unicameral and marginalized 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 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 new Venezuelan government, thus putatively 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
Prior to Chávez' election, Venezuela was often in violation of human
rights standards. When Chávez re-wrote the constitution human rights was
a re-occurring theme. 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.
[9] The violations continue.
[10]
Health care as a human right
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 has sought 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.
[9]
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.
[9]
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
Planchart Manrique, Gustavo. "Constituciones de Venezuela" in Diccionario de Historia de Venezuela. Caracas: Fundación Polar, 1997. ISBN 980-6397-37-1
External links
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Wikisource has original text related to this article:
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Constitutions of states and dependencies in the Americas
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Elkins,
Zachary, Tom Ginsburg, and James Melton. 2009. The Endurance of
National Constitutions. Cambridge: Cambridge University Press.
Wilpert, Gregory. (Venezuela Analysis, 27 Aug 2003). Venezuela’s New Constitution. Retrieved 9 Nov 2005.
Russell Pelle, "Venezuela enters 2000 with progressive new constitution," People's Weekly World.
Larry Rohter, "Voters Push Power Toward Venezuela Leader," New York Times, 26 July 1999.
Larry Rohter, New York Times, 27 August 2009.
El Pais (Spanish), 11 September 1999.
Also, McGirk, Tim. (Time, 27 Dec 1999). "Hugo Chávez Frías". Retrieved 3 Nov 2005.
Wilpert, Gregory. "Venezuela’s New Constitution". venezuelaanalysis.com. Retrieved 13 April 2015.
http://venezuelanalysis.com/analysis/70
http://www.hrw.org/americas/venezuela
http://www.gobiernoenlinea.ve/docMgr/sharedfiles/059.pdf
Title Iii
http://venezuelanalysis.com/constitution
