GLOBAL VALUES IN THE VENEZUELAN CONSTITUTION: SOME ...

GLOBAL VALUES IN THE VENEZUELAN CONSTITUTION: SOME PRIORITIZATIONS AND SEVERAL INCONGRUENCES*

Allan R. Brewer-Carías Professor, Central University of Venezuela

Adjunct Professor of Law, Columbia Law School, New York (2006-2007)

I. GLOBAL VALUES IN THE 1999 VENEZUELAN CONSTITUTION

The 1999 Venezuelan Constitution is one of the recent Constitutions in contemporary world containing not only an extensive amount of articles (350), but also a very rich text full of values, principles and global declarations. It has, perhaps, one of the most florid constitutional wordings that can be found in constitutional texts1.

This can be found not only in its Preamble but in many of its articles, where in a very enumerative and express way, an extensive list of constitutional values and principles are enshrined, as goals intending to guide the State, the Society and the individuals general

* Paper prepared for the book edited by Dennis Davis, Alan Richter and Cheryl

Saunders, on Toward a Universal Law for Humanity: Global Values and the Lessons ans Challenges from National Constitutional Jurisprudence, 2006

1 See Allan R. Brewer-Carías, La Constitución de 1999. Derecho Constitucional Venezolano, 2 Vols., Editorial Jurídica Venezolana, Caracas 2004; Hildegard Rondón de Sansó, Análisis de la Constitución Venezolana de 1999, Editorial Ex Libris, Caracas 2001; Ricardo Combellas, Derecho Constitucional: una introducción al estudio de la Constitución de la República Bolivariana de Venezuela, Mc Graw Hill, Caracas, 2001; and Alfonso Rivas Quintero, Derecho Constitucional, Paredes Editores, Valencia, 2002.

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conduct2. Consequently, in Venezuela, the global values and principles do not derive from the sole interpretation and application of the Constitution by the courts, but from what it is set forth in a precise and express way in the text of the Constitution3. By means of constitutional judicial decisions, of course, the sense, the scope and the priority character of many of these constitutional principles and values have been defined and enriched; and also, unfortunately, in other cases, it has also been distorted, originating some constitutional incongruence between what is said in the constitutional text and what is decided in the political practice of government.

About the constitutional sense and scope of these values declared in the Constitution as “declarations of intent”, the Constitutional Chamber of the Supreme Tribunal of Justice, as Constitutional Jurisdiction, has been explicit in saying:

“Constitutions are, among other things, texts in which legally organized societies regulate their structures and functioning, as well determine the scope of the citizen rights and the public authorities’ powers; but also, they are texts in which the wishes of this same society are exposed – sometimes difficult to satisfy – and the means that have been created to satisfy them…

Now, been the Constitution the document in which the generally shared values of the society are reflected, those declarations of intent are of indubitable value, both for the State bodies, who must be guided by them, as for the judges, specially in this Court as the superior judicial guardian of the constitutionality. The diverse duties that the State assumes are orders that must be executed. It would be of little use, a text lacking the compulsory character for its addressees: public authorities and individuals”. 4

2 See Allan R. Brewer-Carías, “La constitucionalización del derecho administrativo”, in

Derecho Administrativo, Vol. I, Universidad Externado de Colombia, Bogotá 2005, pp. 215 ff.

3 See Allan R. Brewer-Carías, Principios fundamentales del derecho público, Editorial Jurídica Venezolana, Caracas, 2005.

4 See Case: Aclaratoria de la sentencia de interpretación de los artículos 156, 180 y 302 de la Constitución, decision No. 1278 dated June 17, 2005, in Revista de Derecho Público, No 102, Editorial Jurídica Venezolana, Caracas 2005, pp. 56 ff.

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Many of these values expressed in the 1999 Constitution, many of them as declarations of intent of diverse nature can however be grouped according to their referral object, that is, if it is to the State (the Republic, the Nation), its organization (distribution of State powers and branches of government) and functioning (government and Public Administration), and to the legal system; to human rights; and the content and scope of the concept of “the democratic and social rule of law and justice” (Estado democratico y social de derecho y de justicia) regulated by the Constitution.

1. The values and constitutional principles related to the State and to the legal system.

In the Preamble of the Constitution it is declared that it was adopted by the representatives of the Venezuelan people, having in mind the achievement of a series of goals guided by social, economical, political and judicial values5, in order to inspire the action of the State, which responds to equalitarian, international, democratic, moral and historical principles.

In this context, the State is defined itself as a “State of justice, federal and decentralized”, that must develop its action, to enforce the values of “freedom, independence, peace, solidarity, common good, territorial integrity, cohabitation and the empire of the law, for these and all future generations”, in a society qualified as “democratic, participatory, multiethnic and pluricultural”, which is confirmed, for instance, by the express recognition in the Constitution of the indigenous populations’ status (Articles 119 ff.).

“Freedom”, as the most fundamental value, is understood in its most classical expression, as the right of every individual to do anything that does not harm others; to not be obliged to do what the Law does not orders nor to be impeded to execute what it does not

5 Regarding the nature of the Preamble, and its constitutional value, see the decision of

the former Supreme Court of Justice in its Political-Administrative Chamber, dated August 8, 1989, in Revista de Derecho Público Nº 39, Editorial Jurídica Venezolana, Caracas, 1989, p. 102.

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forbids; that is, the right to the “free development of the personality”, which is also expressly regulated (Article 20). Regarding “independence”, it is about reaffirming the existence of the Republic itself, which obtained its independence from the Spanish monarchy since 1810, not subjected to any nature of foreign domination. Consequently, the “territorial integrity” of the Nation is also conceived as another fundamental value of the country, which impedes the modification of its borders in any way. Regarding the aims of “peace”, as a fundamental value, it implies the existential rejection to war; and as for the “solidarity” goal, it tend to reaffirm that people have, besides rights, social and community, social duties, that also derived from the fact of “cohabitation” also declared as another constitutional value; so that the right of each individual, necessarily, finds its limits and boundary in the right of others (Article 20). Regarding the principle of “common good”, it has the purpose of ensuring the satisfaction of all the individual and collective needs, being the latter of priority regarding the former, which also implies that the individual rights can always be limited by reasons of public and social order (Article 20). Last, the Constitution refers to “the law”, or more precisely, to the “empire of the law”, also as a fundamental value related to the idea of the rule of law, because in every society, the definition of common and mandatory norm is the elemental way to shape its organization and cohabitation.

These goals, objectives or purposes constitute, without a doubt, the fundamental principles and constitutional values that inspire the constitutional text as a whole, and as such, they have the same imperativeness, bindingness, and constitutional rigidity that those of the provisions contained in the articles of the Constitution. Their violation by a State action could result in an unconstitutionality action.

But besides the values guiding the configuration of the State, the Constitution also enumerates the following superior values of the legal system and of the whole State activity: “life, freedom, justice, equality, solidarity, democracy, social responsibility and, in general, the preeminence of the human rights, the ethics and the political pluralism” (Article 2).

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Among these values, “democracy” excels as a government and life system, founded in the ideas of the political pluralism and equal “participation” of everyone in the political processes, which is defined as another value of the system. To said values is added the idea of the “social responsibility” that configures the “Social State” and, in general, the idea of the “preeminence of human rights”; which always implies the need for the interpretation of the law in the most favorable way for the enjoyment of rights and liberties of all individuals. This is the “principle of progressiveness” also enshrined in the Constitution (art. 19).

The provision also refers to the values of “ethics”, and not only public ethics, so that beyond the legal provisions there is a set of ethical norms that must guide society and State officials in the task of transforming the State and creating a new legal system.

Among those values enumerated in the Constitution, within the conception of the “State of Justice”, the value of “justice” is also highlighted, which has been analyzed in many Supreme Tribunal decisions; among which the decision N° 659 of the Political-Administrative Chamber dated March 24, 2000, in which the following was said:

The Judiciary, as a system, must have justice as a fundamental value, and thus, the construction of a just and peace loving society which, at the same time, must be the result of the democratic exercise of the popular will (Article 3 of the Constitution of the Bolivarian Republic of Venezuela). The Judge can not be an agent of the factors of power (economic, political parties, among others), organized in codes or cartels, and that can decides in his own name or in the name of those power groups; the power to administer justice must be done in the name of the Republic and comes from the citizens (Article 253 of the Constitution of the Bolivarian Republic of Venezuela); that power must be executed with independence and impartiality. For that reason, the Judge must have such a consistence that can make him/her foreign to subordinations and inadequate pressures (Articles 254 and 256 of the Constitution of the Bolivarian Republic of Venezuela)... As seen, there is a new paradigm about values and constitutional principles connected to the justice as a social, political and democratic fact. This new conception of the State of Justice not only brings an organic transformation of

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the legal system (Articles 253 and 254 of the Constitution of the Bolivarian Republic of Venezuela), but also a change in the intimate reason that each citizen, and specially the Judge must have... In this sense, the Judge, to whom justice is demanded, must also be the product of a democratic fact, establishing an affinity relationship between the demanding society and the power that interprets the values and constitutional principles in order to reach the purposes of the State. So, it is the Judge who must protect – in the name of the Republic and as the supreme expression of the people– whomever requests the reestablishment of a legal situation; it is him who guards and harmonizes the rights and interests with the State’s purposes (Articles 26 and 27 of the Constitution of the Bolivarian Republic of Venezuela), and this obligation is identified in the Constitution with the Judge when it obliges him to ensure the integrity of the Constitution, and thus, gives him the authority to not to apply the statutory provisions that contradicts the fundamental text (Article 334 of the Constitution of the Bolivarian Republic of Venezuela). Then, the Judiciary is not the third power in a tripartite distribution of the branches of government (public power), just like it is not the fifth power in a pentapartite distribution of power; the Judiciary represents the integrating and stabilizing power of the State because it is the only one that has the authority to control and even dissolve the rest of the branches of government (public powers). This makes us a Judicialist State” 6.

Additionally, the Constitution identifies “the defense and the development of the individual and the respect of his/her dignity, the democratic exercise of the popular will, the construction of a fair and peace loving society, the promotion of the prosperity and wellbeing of the people and the guaranty of the fulfillment of all principles, rights and duties recognized and enshrined in the Constitution” as essential goals of the State; considering “education and work” as fundamental processes to reach said ends (Articles 3).

On the other hand, the “refoundation of the Republic” intended in the constitutional text, also responds to a series of social ends specified

6 See Case: Rosario Nouel vs. Consejo de la Judicatura y Comisión de Emergencia Judicial, in

Revista de Derecho Público Nº 81, Editorial Jurídica Venezolana, Caracas, 2000, pp. 103-104

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in the Preamble with the object of ensuring “the right to a life, work, culture, education, social justice and equality without discrimination nor subordination of any kind”. Also, reference is made about the social goal of society and the State of ensuring “social justice” in order to assure the equitable participation of all in the enjoyment of the wealth, impeding that this is concentrated only in a few hands, creating unfair income differences, and searching to ensure a dignified and prosperous existence for the collectivity (Articles 112, 299). Last, it is also mentioned, as a fundamental social goal, the assurance of “equality without discrimination nor subordination of any kind”, which responds to the equalitarian character of the Venezuelan society, which repels the discrimination of any kind and the servility (Articles 19, 21).

2. The principles and constitutional values about the Republic

As mentioned, the 1999 Constitution, throughout its articles also enumerates many of the abovementioned constitutional principles, shaping them as constitutional provisions.

In this regard, referring to the Republic, as the national organization of the State, a few fundamental values are emphasized; and among them, apart from the already mentioned: (freedom, equality, justice and international peace); is the principle that the rights of the Nation cannot be renounced or abandoned, being those rights, the “independence, freedom, sovereignty, immunity, territorial integrity and the national self-determination” (Article 1). Also, the Constitution enumerates the following principles regarding the Nation’s security: “independence, democracy, equality, peace, freedom, justice, solidarity, promotion and conservation of the environment, the affirmation of the human rights and the progressive satisfaction of all individual and collective needs of the Venezuelan people” (Article 326).

The Preamble also mentions as one of the goals of the State in the scope of international relations, the “peaceful cooperation between nations”, which implies the commitment to the peaceful solution of controversies, and the rejection of war; peaceful cooperation that must

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be executed according to the “principles of the nonintervention” in the affairs of other countries and of the “self-determination of the people”. Also, it is said that international cooperation must be carry on “according to the universal and indivisible guaranty of human rights and the democratization of the international society”.

References are also made to other values that must guide the international relations of the Republic, like the “nuclear disarmament, the ecological balance and the environmental legal goods as common and non renounceable patrimony of humanity”. In particular, in the Preamble another fundamental goal that must guide the actions of the State is defined, referred to “the impulse and consolidation of the Latin-American integration”, which refers to the regional economic integration processes that have been carried out in the South American Continent, with all its consolidation demands for supranational organizations (art. 153).

3. The constitutional principles about the organization of the branches of government (public powers)

As for the organization of the State, the Constitution establishes both, the principle of the vertical (territorial) distribution of State power and its horizontal division of branches of government, as one of the essential values for the preservation of freedom, being a tool to essentially limiting the exercise of power, by means of the balance that must exist between the different branches of government that are independent and autonomous. As it has been ruled by the Political-Administrative Chamber of the Supreme Tribunal of Justice:

The 1999 Constitution, limits the power by means of the diffusion of the authority, both in the horizontal and the vertical scope. That is, there is a predetermined horizontal and vertical distribution of the public powers in which its creators provided … the distribution of power at the local (municipal) level, at the States level and at the national level; and the division of the National branches of government into Legislative, Executive, Judicial, Electoral and Citizens Powers. This limitation of power by the power itself, based on the fear of its excessive concentration, is set in order to allow its submission to the rule of law,

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reducing its actions to the specific attributions and function foreseen in the Law tending to assure the protection against tyranny and the freedom of citizens7.

Public power is thus distributed vertically or territorially in three levels according to the federal form of the State: national, states and municipal levels; and in the National level, it is divided into five branches of government, so that in addition to the three classical branches: Legislative, Executive and Judicial, the 1999 Constitution created the Citizens power (comprising the Peoples’ Defendant, the General Comptroller and the General Prosecutor Offices) and the Electoral power (National Electoral Council). All these branches of government are autonomous and independent.

As for the territorial organization of the State, defined as a “decentralized federal State” (art. 4), the Constitution enumerates the following principles that must guide its configuration: “territorial integrity, cooperation, solidarity, concurrence and co-responsibility” (Article 4). Also, as for the national statutes that can be sanctioned by the National Assembly regarding concurrent competences between the national, the states and the municipal levels, the Constitution prescribes that they must be oriented by “the principles of independence, coordination, cooperation, co-responsibility and subsidiarity” (Article 165).

About the horizontal penta division of the National branches of government (public power), which constitutes a 1999 constitutional innovation, the Electoral Chamber of the Supreme Tribunal of Justice, in decision N° 2 dated February 10, 2000, justified it as follows:

The Constitution of the Bolivarian Republic of Venezuela, published in Official Gazette N° 36.860 dated December 30, 1999, substantially modified the bases of the political system and the Venezuelan legal system, transforming the institutions of Public Power in its diverse branches. One of the main modifications refers to the regulation of the political rights (Title III, Chapter IV, Section First), as for the citizens protagonist participation in public affairs

7 See decision Nº 1819 dated August 8, 2000, in Revista de Derecho Público, Nº 83, Editorial Jurídica Venezolana, Caracas, 2000, p. 264.

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through several modalities specified in the corresponding constitutional precept (article 70) as well as for the organic formation of the Institutions in charge of the instrumentation of said participation (Chapter V of the Electoral Power). Following this transforming trend, to the three classic branches of the National Public Power, that is to say, the Executive, the Legislative and the Judiciary, the Citizens and Electoral powers were added (article 136). It is worth mentioning that this modification has not obeyed to sole reasons of legislative technique or rationality in the organic distribution of State power, but it is reflected – we insist – in a conception of the State, which explains the fact that each chapter of the Title [of the Constitution} had been framed referring to the organization of the National branches of government (public power), destined to regulate these two new branches; constitutional regulation that in the case of the Electoral power, provides coherent and systematically for the new conception. This regulations clearly surpasses the thesis of the 1961 Constitution, which in general terms just alluded to some electoral bodies that had to be regulated in a statute, with the exclusive purpose of allowing the periodical exercise (every three or five years) of the voting rights8.

Now, regarding democratic legitimacy, it must be stressed that the members (representatives) of the National Legislative power, that is, the National Assembly, are elected by the people; just like the President of the Republic, as head of the National Executive Power); who in the other hand, is the one that designates the other non elected executive officials like the Executive Vice-President, and the Ministers.

As for the heads of the other branches of government (Judicial, Citizens, Electoral powers), all of them are appointed by the National Assembly, for a particular term, guaranteeing the Constitution the direct participation of the representatives of civil society social regarding the proposal of the candidates.

8 See Case: Cira Urdaneta de Gómez vs. el Consejo Supremo Electoral, Exp. 004, in in

Revista de Derecho Público, Nº 81, Editorial Jurídica Venezolana, Caracas, 2000, pp. 516 ff.

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4. The constitutional principles about the government and the Public Administration

On the other hand, as for the government of the Republic and of its political entities (States and municipalities), the Constitution enumerates as its governing principles, that it must be “democratic, participative, elective, decentralized, alternative, responsible, pluralist, and of revocable mandates” (Article 6); and as for Public Administration, which must be “at the service of the people”, the Constitution also enumerates the principles and values on which it must be based: “honesty, participation, celerity, efficiency, effectiveness, transparency, the accounting and responsibility in the execution of the public function, with complete subjection to the statutes and to the Law” (Article 141).

As for justice, which the State must guarantee, the Constitution indicates that it must be “free, accessible, impartial, idoneous, transparent, autonomous, independent, responsible, fair and expeditious, without inappropriate delays, without useless repositions or formalisms” (Article 26); to which effect, the procedural laws must establish the “simplification, uniformity and efficiency of the proceedings and to adopt a brief, oral and public, procedure without sacrificing the justice due to the omission of non essential formalities”. (Article 257)

As for the bodies of the Electoral power, the Constitution enumerates the following principles that must be guaranteed regarding the electoral processes: “equality, reliability, impartiality, transparency and efficiency”; besides the “personalization of the vote and the proportional representation” principles (Article 293);

Regarding the public services corresponding to the State, the Constitution also enumerates a series of governing principles: For instance, regarding the national public health system, it states that it must be “inter-sectorial, decentralized and participative, and managed by the principles of gratuitousness, universality, integrality, impartiality, social integration and solidarity” (Article 84); in matter of the social security system, it indicates that the system must be

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“universal, integral, of solidary, unitary, efficient and participative financing, from direct or indirect contributions” (Article 86); and as for the education, the Constitution expresses that it must be “democratic, free and mandatory, based on the respect to all thought tendencies, in order to develop the creative potential of every human being and the complete exercise of his/her personality inside a democratic society based on the ethical valuation of the labor and the active, conscientious and solidary participation in the processes of social transformation related with the values of the national identity and with a Latin-American and universal vision” (Article 102).

Regarding the socioeconomic regime of the Republic, the Constitution enumerates the following principles on which the system must be based: “social justice, democracy, efficiency, free competition, environment protection, productivity and solidarity, in order to guarantee the integral human development, a dignified and prosperous existence for the collectivity, the generation of labor sources, high national added value, elevation of the standard of living of the people and to strengthen the economical supremacy of the country, guarantying juridical security, stability, dynamism, supportability, permanence and equity of the economy growth, in order to achieve a fair distribution of the wealth by means of a democratic, participative and of open consultation strategic planning” (Article 299). On this matter, regarding the public economy, the Constitution also states the following principles that must rule the fiscal management: “efficiency, solvency, transparency, responsibility and fiscal balance” (Article 311); and regarding the taxation system, it must be ruled by the following principles: “progressiveness, protection of the national economy and the elevation of the standard of living of the population” (Article 316).

5. Constitutional principles regarding human rights regulations and guarantee

Article 19 of the 1999 Constitution begins the Title referred to “Duties, Rights and Constitutional Guarantees”, setting forth that the State must guarantee every person, “according to the progressiveness

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principle and without discrimination whatsoever, the enjoyment and non renunciable, indivisible and interdependent exercise of human rights”. The provision adds that “the respect and the guarantee of the rights are mandatory to all bodies of the branches of government (public power) in accordance to the Constitution, the treaties about human rights signed and ratified by the Republic and the laws that develop them”.

From this provision, it is established, first, the State obligation to guarantee human rights, according to the “principle of progressiveness” or pro hominis principle, which necessarily implies that the interpretation of the corresponding provisions must be carried out in the most favorable way to the exercise and enjoyment of the rights and, also, according to the “principle of the no discrimination”. About this principle, the Constitutional Chamber of the Supreme Tribunal of Justice, quoting article 2 of the American Convention on Human Rights, in a decision N° 1154, dated June 29, 2001, based on the same principle, has ruled that it is necessary “to adapt the legal system in order to ensure the efficiency of said rights, being unacceptable the excuse of the inexistence or unsuitability of the means provided in the internal order for their protection and application”9.

Another essential value of the Constitution, referred as a priority in the Preamble and in its first articles is, as mentioned before, the principle of “freedom”, which is also referred to in article 20 of the Constitution as the fundament of all the system in this matter, establishing that “Every person has the right to the free development of their personality, without any other limitation than those derived from the rights of others and the public and social order”.

Also, human rights guaranteed and protected according to the Constitution, are not only the ones enumerated in its text and in the international instruments on human rights, but also are justiciable those human rights non enumerated in the text but that, as indicated in

9 See in Revista de Derecho Público, Nº 85-88, Editorial Jurídica Venezolana, Caracas 2001,

pp. 111 ff.

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the Constitution, are considered as “inherent to the human person” (Article 22). This open clause, inclusive, is more extensive in comparison with the original wording of the North American constitutionalism (Amendment IX), in the sense that it refers not only to the rights and guarantees not enumerated in the Constitution but also in the international instruments on human rights, which conforms a truly unlimited cast of unstated, but protected, rights that are inherent to the human person.

It is also emphasized in the last phrase of article 22 of the Constitution that “The lack of reglamentary law regarding these rights does not diminish their exercise”, in relation to which the Constitutional Chamber, on a decision N° 723, dated May 15, 2201, stated that “in view of the operative character of the dispositions regarding human rights, their application, without diminishing the integration of the international regulations with the internal one, can not be conditioned to the existence of a statute that develops them; on the contrary, the lack of legal instruments regulating them, does not diminish their exercise, so said rights “are of immediate and direct application by the courts and all other bodies of the State” (Articles 22 and 23 of the Fundamental Text)”10.

Another of the important innovations of the 1999 Constitution regarding the guarantee of human rights, is the granting of constitutional rank to the international treaties, covenants and conventions referred human rights signed and ratified by Venezuela, adding article 23, that they will “prevail in the internal order, when containing provisions most favorable to their enjoyment that those established by the Constitution and the laws of the Republic” (Article 23).

According to all these constitutional provisions, the following fundamental aspects must be emphasized: first, the granting of constitutional hierarchy to treaties, covenants and conventions on

10 See in Revista de Derecho Público, Nº 85-88, Editorial Jurídica Venezolana, Caracas 2001,

p. 111.

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human rights; second, the necessary preferred application of these international provisions regarding the Constitution itself and the statutes, if they contain most favorable norms (supra constitutional rank); and third, the immediate and direct application of the dispositions of the treaties in matters of human rights by the State bodies, particularly by the courts11.

6. The constitutional principles about the State as a “democratic and social rule of law and justice”.

Article 2 of the Constitution defines Venezuela, as a Democratic and Social rule of Law and Justice (Estado democratico y social de derecho y de justicia), following the trends of contemporary constitutionalism as expressed, for instance, in the Spanish Constitution (article 1°); in the Constitution of Colombia (article 1°), and in the Constitution of the Federal Republic of Germany (Article 20.1).

The Rule of Law (Estado de Derecho), is the State submitted to the “empire of the Law” as stated in the Preamble, that is, the State submitted to legality. This derives not only from the principle of the

11 The Constitutional Court of the Supreme Tribunal has for instance applied this

provision regarding due process rights, applying preferentially article 8 of the American Convention on Human Rights. See decision dated March 14, 2000 (Case: C.A. Electricidad del Centro and C.A. Electricidad de los Andes), in Revista de Derecho Publico, N° 81, Editorial Juridica Venezolana, Caracas 2000, pp. 157-158; quoted also in decison N° 328 dated March 9, 2001, of the same Chamber, in Revista de Derecho Publico, N° 85-88, Editorial Juridica Venezolana, Caracas 2001, p. 108. The Political-Administrative Chamber of the Supreme Tribunal interpreted and developed the criteria established by the Constitutional Chamber regarding the lack of applications of Article 185 of the Organic Law of the Supreme Court of Justice in decision N° 802 dated April 13, 2000 (Case: Elecentro vs. Superintendencia Procompetencia), in Revista de Derecho Publico N° 82, Editorial Jurídica Venezolana, Caracas 2000, p. 270. On a similar matter, see also, the decision N° 449 dated March 27, 2001 (Case: Dayco de Construcciones vs. INOS) in Revista de Derecho Publico, N° 85-88, Editorial Juridica Venezolana, Caracas 2001. Nonetheless, the Political-Administrative Chamber has denied to give prevalence to Article 8 of the American Convention regarding the requests made by corporate persons, understanding that the Convention only refers to the “human” rights of individuals. See decision N° 278 dated March 1, 2001, in Revista de Derecho Publico, N° 85-88, Editorial Juridica Venezolana, Caracas 2001, p. 104.

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“supremacy of the Constitution” included in article 7 and of the submission of the State bodies to the Constitution and the laws (article 137), but from the judicial review system for controlling the constitutionality (articles 334 and 336) and legality of all State acts and actions (article 259) (Constitutional Jurisdiction and Administrative Jurisdiction), which constitute the main guarantee of the Constitution.

As for the “State of Justice” (Estado de Justicia), it is the State who must guarantee rendering justice above the formal legality, establishing not only the value of “justice” in the Preamble and in article 1º, but regulating expressly the individual “right to access to justice” and the guarantee to obtain an “effective judicial protection” of the rights and interests of the people, organizing courts that must guarantee a “gratuitous justice, available, impartial, idoneous, transparent, autonomous, independent, responsible, fair and expeditious, without improper delays, formalisms or useless repositions” (article 26). On this notion of State of Justice, among the multiple decisions issued by the Supreme Tribunal of Justice, in a decision Nº 949 of the Political-Administrative Chamber dated April 26, 2000, the following was stated:

When the State is qualified as of Rule of Law and Justice, and establishes justice and the preeminence of the fundamental rights as the superior value of its legal system, it is doing nothing else than emphasizing that the bodies of the State (branches of government or public power) and especially the legal system, must inexorably assure the prevalence of the notion of material justice over the formalities and technicalities, that are proper to a formal legality that has had to surrender to the new conception of State. And this notion of material justice, acquires a special meaning in the field of the judicial proceedings in which the right to defense and to due process (article 49), the seeking for the truth as integral element to justice, regarding to which the latter must not be scarified in case of omission of non essential formalities (article 257), and the understanding that access to justice is for the individuals to allege their rights and to obtain effective judicial protection of them in a prompt manner, without undue delays and without useless formalism (article 26); -all these- conform a Cosmo vision of the fair State, of the justiciables as principal element of democracy, and of the ineludible duty

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that the judiciary and judges have to maintain the processes and decisions within the frame of the constitutional values and principles”12.

This conception of the “State of Justice” has also been analyzed by the Constitutional Chamber of the Supreme Tribunal of Justice, particularly in a decision Nº 389 dated March 7, 2002, in which the principle of the informality of the process was repeated, also asserting the principle of pro actione as another principle of the State of Justice13.

The idea of “Social State” (Estado Social) is that of a State with social obligations that strives for social justice, which allows the intervention in social and economic activities as a welfare State. Such social character mainly derives from the fundamental constitutional value of “equality and non discrimination” that comes from the Preamble and from article 1° of the Constitution which, besides being a fundamental right (article 21), is the milestone of the performance of the State (article 2), and of the declaration of the principle of “social justice” as the base of the economic system (article 299).

Regarding this concept of “Social State”, it has been defined by the Constitutional Chamber in a decision No. 85 dated January, 24 2002, in the sense that, “it searches for the harmony between classes, avoiding that the dominant class, for having the economic, political or cultural power, abuses and subjugates the other classes or social groups, preventing their development and submitting them to poverty and ignorance; to the category of natural exploited and without the possibility to redeem their situation”. The same Chamber continued its analysis stating that:

“The Social State must protect people or groups that regarding others are in a situation of legal weakness, regardless of the liberal rule of law principle of equality before the law which, in practice, does not solve anything, because unequal situations can not be treated with similar solutions. In order to achieve the balance, the Social State not only intervenes in the labor and

12 See in Revista de Derecho Público, Nº 82, Editorial Jurídica Venezolana, Caracas, 2000,

pg. 163 ff. 13 See in Revista de Derecho Público, Nº 89-92, Editorial Jurídica Venezolana, Caracas, 2002,

175 ff..

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social security factor, protecting the salaried workers non related to the economical or political power, but it also protects their health, housing, education and economical relations; reason for which the part of the Magna Carta that can be defined as the Economic Constitution must be seen from an essentially social perspective. The Social State is going to reinforce the juridical-constitutional protection of people and groups that are in a juridical-economical or social weakness position before other social or economical forces, and it is going to reduce the protection of the strong. The State is obligated to protect the weak, defend their interests protected by the Constitution, particularly through the courts; and regarding the strong, its duty is to watch that their freedom is not a load for everybody. As a juridical value, there can not be a constitutional protection at the expense of the fundamental rights of others... The Social State tries to harmonize the antagonistic interests of society, without allowing unlimited actions from social forces, based on the silence of the law or its ambiguities, because otherwise that would lead to the establishment of an hegemony over the weak by those economically and socially stronger, in which the private power positions become an excessive diminution of the real freedom of the weak, in a subjugation that constantly encourages the social crisis”14.

After analyzing the concept of Social Rule of Law in Venezuelan constitutional law, the Constitutional Chamber concluded indicating that it has to be adapted to the finalist values of the Preamble, from which it is inferred that the Social State is destined to promote the consolidation of the social solidarity, the peace, the common good, the cohabitation, the assurance of equality without discrimination nor subordination, preferring the common good (the general interest) in relation to individual interest, and recognizing that said common good is to be achieved by keeping social solidarity, peace and cohabitation. From there, the Chamber concluded that:

14 See Case: Deudores hipotecarios vs. Superintendencia de Bancos, in Revista de Derecho

Público, Nº 89-92, Editorial Jurídica Venezolana, Caracas, 2002, pp. 94 ff.

19

“Consequently, the laws must have those values as their north, and those that do not have them, as well as the conducts that based on some norm attempt against those objectives, become unconstitutional“15.

7. The principles about the democratic State, democracy and political participation

The concept of “democratic State” (Estado democrático), identify the democratic constitutional principle, as the one that gives roots to all the political organization of the Nation, as it derives from the Preamble (“democratic society”) and from articles 2, 3, 5 and 6 of the Constitution.

Regarding democracy, the Constitutional Chamber of the Supreme Tribunal of Justice, in a decision N° 23 dated January 22, 2003 has made clear that the intention of the 1999 Constitution was to:

“Refound the Republic in order to establish a democratic, participative and protagonist society, which implies that it is not just the State who has to adopt and submit its institutions to the ways and principles of democracy, but it is also the society (formed by the Venezuelan citizens) who must play a decisive and responsible role in the conduction of the Nation”16.

On the other hand, the 1999 Constitution, by establishing the concept of participation as a fundamental principle of democracy, also regulated it as a political constitutional right “considering individuals as member of a determined political community, in order to take part in the formation of public decisions or of the will of the public institutions”; right that has its effects on others rights of political character established in the Constitution, like the right to vote (article 63), to petition (article 51), to have access to public offices (article 62), of political association (article 67), to manifestation (article 68), and to be informed in due time and truthfully by Public Administration (article

15 See Case: Deudores hipotecarios vs. Superintendencia de Bancos, in Revista de Derecho

Público, Nº 89-92, Editorial Jurídica Venezolana, Caracas, 2002, pp. 94 ff. 16 See Case: Interpretación del articulo 71 de la Constitución in Revista de Derecho Público, Nº

93-96, Editorial Jurídica Venezolana, Caracas 2003, pp. 530 ff.

20

143). It also relates to social rights, like the right to health (article 84), educational rights (article 102) and environmental rights (article 127)17.

Then, the “participative democracy” does not completely exhaust itself in the mechanisms of “representative democracy” nor of “direct democracy”, but it is materialized in other constitutional instruments available for the direct intervention of the citizens in the decision making process of public affairs, which nevertheless have not been effectively developed. That is why, among “the participation and protagonism means of the people in exercise of their supremacy”, article 70 of the Constitution identifies, “in political matter: the election of public office, the referendum, the revocation of the term of office, the initiative for legislation, for constitutional reforms and for the constituent process, the open municipal council and the citizens assembly whose decisions will be of binding force”.

Also, the Constitution has directly regulated some mechanisms in order to nationally guarantee the direct participation of the representatives of the different sectors of the society in the adoption of some public decisions, particularly through the integration of “Nominating Committees” for the appointment, by the National Assembly, of the high public officers heads of the not popularly elected branches of government; Committees that according to the Constitution must be solely and necessarily formed by representatives of the diverse sectors of the society.

These reform regarding the said appointments, were incorporated as a consequence to the general critic formulated during the 80’ and 90’ to the traditional appointment system of high not elected public officials by the old National Congress (Attorney General, General Comptroller, and Magistrates of the Supreme Court) established in the 1961 Constitution, which provided the legislative body with the

17 See Case: Interpretación del articulo 71 de la Constitución in Revista de Derecho Público,

Nº 93-96, Editorial Jurídica Venezolana, Caracas 2003, pp. 530 ff.

21

discretional power to appoint by means of agreements between political parties18.

For this reason on this matter, during the 1999 Constituent National Assembly discussions, in some aspects the principle of participation prevail over the principle of representation, and if the power to appoint the heads of the not popularly elected bodies of the State was granted to the National Assembly, the most important reform introduced consisted in taking away from the Assembly the discretional power to make such appointments, and regulating a precise way for the active participation of the society, by assigning the exclusive power to make the proposals of candidates to occupy said high positions before the National Assembly, to several “Nominating Committees” formed by the “representatives of the various sectors of society”. Consequently, the constitutional system adopted, tried, first, to impede that the candidates proposals for said designations could be formulated directly before the National Assembly; and second, to establish that the National Assembly could not appoint people different to those proposed by the “Nominating Committees”, which then have the monopoly to propose the candidates for those appointments19.

Those Nominating Committees formed by representatives from the different sectors of the society, were conceived as non State organizations of the society, then, the representatives elected to the National Assembly could not be part of them. Unfortunately, this has been completely disrupted by legislation, making the reforms completely ineffective regarding the reduction of the Assembly discretionary

18 See for example, Allan R. Brewer-Carías, Los problemas del Estado de Partidos, Editorial

Jurídica Venezolana, Caracas 1988. 19 See Allan R. Brewer-Carías, “La participación ciudadana en la designación de los

titulares de los órganos no electos de los Poderes Públicos en Venezuela y sus vicisitudes políticas”, in Revista Iberoamericana de Derecho Público y Administrativo, Año 5, Nº 5-2005, San José, Costa Rica 2005, pp. 76-95

22

power to appoint the heads of other branches of government according to the majority party agreement rule of voting.

8. Constitutional principles and values about the collective entities: the community, the family and the civil society

On the other hand, participation in the democratic concept enshrined in the Constitution, has provoked the insertion in it, of other provisions referred to the community, the family and civil society.

Thus in addition to personal and individual rights, as it has been analyzed by the Constitutional Chamber of the Supreme Tribunal in a decision N° 1395 dated November 21, 2000, identified expressly a few “collective rights” in the following way: 1) To the organized community (article 84), the right to participate in the decision making process of the public health institutions; 2) To the Venezuelan people (articles 99 and 347), the right to culture values; 3) To the community (article 118), the right to develop associations of social and participative character; 4) To the indigenous people (articles 121, 123, and 125), the right to maintain their ethnic and cultural identity, and to maintain their own economic practices and to the political participation. This are, according to the Chamber’s doctrine, differentiated entities that are considered as holders of collective rights by express order of the Constitution20.

On the other hand, the Constitution grants certain guarantees to some of those entities, as is the case established in article 59, in favor of the “organized community”; in article 124, in favor of the “indigenous people”; in article 21,2 and in articles 75 and 111, in favor of groups, families and sportsmen and women; and also in article 102, in favor of society.

Likewise, the Constitution also seek for the aforementioned entities and others to give advise, to be represented or to participate, just as it occurs, for instance, in the following articles when referring to

20 See in Revista de Derecho Público, No. 84, Editorial Jurídica Venezolana, Caracas 2000, p.

331 ff.

23

the organized society (articles 182, 185, 211); to the Venezuelan people (articles 62, 70, 347); to the community (articles 184,2, 4,7; 264); to the people and indigenous communities (articles 119, 120,166); to the civil society (articles 206, 296, 326); to the society in general (articles 79, 80, 81, 102, 127, 270, 279, 295); to the families (articles 78, 79, 80, 81, 102), and to the organized communities (articles 166, 184)21.

From these constitutional provisions comes the need for the State t grant guaranties and participations, as well to makes consultations to the different collective entities, in answer to moral demands for justice, giving origin to what the Constitutional Chamber considers as “non enunciated moral rights”22.

The Constitutional Chamber of the Supreme Tribunal has tried to define, particularly, the “collective entities”, and among them, ”civil society”, adopting the following principles: that “civil society is different from the State and the entities that form it”, for that reason:

1) “Under any direct or indirect form, the State can not be part of the civil society”. In consequence, the “foundations, associations, societies or groups, completely financed by the State, even those of private character, can not represent it, unless they can demonstrate that the State has no influence on their direction and activities”.

2) The civil society has to be different from the political forces “whose exponents are the political parties or groups. Consequently, the political organizations are not part of the civil society, but of the political society, whose spaces are delimited by the Constitution and the laws. Therefore, every type of partisan participation in corporate persons, changes their condition as organizations representative of the civil society”.

3) “The civil society, taken into consideration by the Constituent, is the Venezuelan civil society”, for that reason, “those who represent it


331 ff. 22 See in Revista de Derecho Público, No. 84, Editorial Jurídica Venezolana, Caracas 2000, p.

331 ff.

24

can not by aliens, nor organs directed, affiliated, helped, financed or supported directly or indirectly, by foreign States or movements or groups influenced by those States; nor by associations, groups or global or transnational movements that follow political or economical ends for their own benefit”.

4) “Due to the ethereal character of the concept of civil society, it has to be formed by social actors organized in a democratic way which, by interpretation of article 293 of the 1999 Constitution (that states that the electoral processes for the organizations of civil society can be directed by the National Electoral Council), have to be entities that functions democratically, with a number of members that allow elections; for this reason the civil society can not be represented by self-postulated individuals, no matter how notable they are, or proposed by small groups without legal personality or similar organizations”.

5) “The social actors that form the civil society are non governmental organizations whatever their diverse nature, and their spokespersons can not be active military or religious”. 6) “The civil society… is an intermediary between the citizen and the State” formed by “institutions or organizations with legal personality, which will be regulated according to the requirements imposed by the law”23.

As for the concept of “community”(articles. 84, 120, 166, 184, 264 and 326 of the Constitution), according to the same Constitutional Chamber decision, it identifies “restricted groups of persons occupying sectors of the territory, that at the same time can be considered as element of the society in general, or coincide occasionally with the civil society in particular. In order to communicate itself, the community, just like the civil society, requires of organized groups; that is why article 184 of the Constitution compares the community with organized groups of neighbors and non governmental organizations, which for


331 ff.

25

being organizations, are corporate persons structured to obtain determined achievements”24.

II. SOME CASES OF PRIORITIZATION

Some of the values declared in the Constitution, even though not in expresis verbis can be considered as having been prioritized through judicial decisions, in the sense that they have been considered as having some kind of superior hierarchy regarding other principles that are governed by the former. In the declaration of constitutional right (bill of rights), it is the case, for instance, of the concept of “human dignity” implying the existence of constitutional rights inherent to human beings; and the “principle of progressiveness” in the interpretation and enforcement of human rights. Regarding the political system, it has also been the case of “democratic participation”.

1. The value of human dignity

Regarding “human dignity”, the Constitutional Chamber of the Supreme Tribunal, in a decision N° 2442, dated September 1, 2003, has considered as “one of the values on which the Social rule of law and Justice State is based, and around which all the legal system of a State must turn and, thus, all the actions of the branches of government (public powers); having defined the concept as follows:

“The human dignity consists in the supremacy that persons have as an inherent attribute of its rational being, which imposes the public authorities the duty to watch for the protection and safe-conduct of the live, freedom and autonomy of men and women for the sole fact of existing, independently of any consideration of nature or positive extent.

Thus, the sole existence of man grants him the right to exist and to obtain all the guarantees needed to assure him a dignified life, that is, its proper existence, proportional and rational to the recognition of his essence as a rational being. At the same time that it imposes to the State the duty to adopt the necessary protection measures to safeguard the legal goods that define


331 ff.

26

man as a person, that is, life, integrity, freedom, autonomy, etc.

With this purpose, the Constitution of the Bolivarian Republic of Venezuela, in its article 3 establishes that the recognition of the human dignity constitutes an structural principle of the Social rule of law State and for that, it forbids, in its Title III, Chapter III, the forced disappearances, the degrading treatments, the tortures or cruel treatments that could harm the life as an inviolable right, the degrading punishments and all other inherent rights of the human person (articles 43 ff. eiusdem)25.

On the other hand, the Political-Administrative Chamber of the same Supreme Tribunal of Justice has made special emphasis in the preeminent notion of the dignity and the rights of persons, considering, in decision N° 224 dated February 24, 2000, that:

This axiological material, recollected and widely developed by the 1999 Constituent, given its priority position, represents the ideological base that supports the dogmatic order of the current Constitution, imposing to the exercise of public power and establishing a trustworthy and effective guarantee system. That is why every Constitutional State or Rule of Law and Justice, brings with itself the prevalent position of the human dignity and of the rights of the people, the obligation of the State and of all its bodies to protect and guarantee them as the main purpose and objective of its public action…

The 1999 Venezuelan Constitution enshrines the preeminence of the rights of person as one of the superior values of its legal system and also states that their defense and development are one of the essential objectives of the State (Articles 2 and 3)26.

2. The supremacy and the principle of progressiveness on human rights

As aforementioned, article 19 of the 1999 Constitution begins the Title regarding “Duties, Rights and Constitutional Guarantees” by stating that the State must guarantee to every person, “according to the

25 See Case: Alejandro Serrano López, in Revista de Derecho Público, No. 83-96, Editorial

Jurídica Venezolana, Caracas 2003, pp. 183 ff. 26 See in Revista de Derecho Público, Nº 81, Editorial Jurídica Venezolana, Caracas, 2000,

pg. 131 ff. See also, decision of the Constitutional Chamber of the Supreme Tribunal Nº 3215 dated June 15, 2004, in Revista de Derecho Público, Nº 97-98, Editorial Jurídica Venezolana, Caracas, 2004, p. 428.

27

principle of progressiveness and without discrimination of any kind, the enjoyment and the non renunciable, indivisible and interdependent exercise of human rights”.

Then, the respect and guarantee of the rights are mandatory for the bodies of the State and of all branches of government in conformity with the Constitution, the treaties on human rights signed and ratified by the Republic and the laws that develop them; demanding, in every case of actions from the Administration, the most favorable interpretation to freedom and to the exercise of rights.

It is therefore established, first, the State guarantee of human rights, according to the principle of progressiveness, which necessarily implies that the interpretation of the corresponding norms and that any future constitutional revision, must be performed in the most favorable way for the exercise and enjoyment of the rights and, also, according to the principle of non discrimination. About this concept of progressiveness, the First Court of the Administrative Jurisdiction in a decision dated June 1, 2000 has argued that:

It refers to the obligation of the State to incorporate the recognition of each and everyone of the human rights described in the constitutional text, and in the international instruments that deals with this matter, to the legal system; that is, this principle defines the obligation of the States to recognize and watch for the defense of human rights in a consecutive way, in order to guarantee the enjoyment of said rights as long as they have been considered as inherent to the human condition, affirming then human dignity as a condition existing before the State and defining the activity of the branches of government at the service of the human being.

It is such the importance of this principle that its application obliges the States to update their legislation in favor of the defense of the human rights and in views to dignify the human condition, adapting the interpretation of the norms “to the sensibility, thought and needs of the new times” in order “to set them up to speed with the new order established and to reject every anachronic precept that opposes to their effective force”.

In this order of ideas, the Constitution of the Bolivarian Republic of Venezuela, in article 44, recognizes the right for freedom and it only allows, in very specific and clear cases, the exceptions to said principle, commented supra, which in concordance with the principle of progressiveness forces the

28

Venezuelan State to recognize, in the existing legal system, the supremacy of the right for freedom, in terms defined and foreseen by the Constitution, under penalty of unconstitutionality of the norm in case that this does not occur.

Regarding the aforementioned, there is an obligation of the Administrative Jurisdiction Judge, to interpret the entire legal system in the light of the Right of the Constitution, even more, when acting in exercise of the constitutional power for protection, which also means, that we have to interpret the system congruently with the fundamental rights or human rights, that must be respected above all, making a progressive and complete interpretation”27.

3. The prioritization of democracy and participation as a constitutional value

The Constitutional Chamber of the Supreme Tribunal of Justice, in a decision Nº 23 dated January 23, 2003 has also emphasized about the issue of perfecting the democracy as the fundamental goal of the constitutional text, arguing that the 1999 Constitution:

“Founds the axiological bases and institutions in order to deepen the democracy in Venezuela, by complementing the traditional ways of representative instances of the contemporary democratic systems, with novel and effective mechanisms of participation through which the citizens can, in the different political-territorial levels, be protagonists in public activities and in the decision making process for the management of the public interest and the common good, breaking with the “participation illusion” created during the existence of the 1961 Constitution, and that conspired so many times against the stability of the democratic system in our country… This way, as it is well explained in the Exposition of Motives of the Constitution, the current constitutional regime answers to a felt aspiration of the organized civil society that struggles to change the negative political culture generated by decades of a centralized State of political parties (Cfr. Allan R. Brewer-Carias, Problemas del Estado de Partidos, Caracas, 1988, pp. 39 ff.) that meditated the development of the democratic values, through the participation of the people which is no longer limited to electoral processes, because the need for the intervention of the people in the formation, formulation and execution of public politics is recognized, as a mean to

27 See Case: Julio Rocco A., in Revista de Derecho Público, Nº 82, Editorial Jurídica

Venezolana, Caracas 2000, pp. 287 ff.

29

overcome the deficits of governability that have affected our political system due to the lack of harmony between the State and the society.

This implies that the elective, participative and protagonic democratic model established in Venezuela with the 1999 Constitution, conceives the public management and the preservation and encouragement of the common good as a process with permanent communication between the government and the people, and between the representatives and their represented, which implies a radical modification, that is, from the root, in the orientation of the relations between State and society in which the latter receives back its legitimate and undeniable protagonist role, by means of the exercise of its fundamental political rights, mentioned in Chapter IV of Title III of the Supreme Norm.

Said process call to deepen the democratic culture of the Venezuelan people, via the constituent process and Constitution, is reinforced in its purposes by the international instruments, signed and ratified by the Bolivarian Republic of Venezuela in the matter of human rights; being perfect examples of this, articles 21 of the Universal Declaration of Human Rights, article XX of the American Declaration of the Rights and Duties of Man, article 25 of the International Covenant of Civil and Political Rights, and article 23 of the American Convention on Human Rights, all part of the so called constitutionality block in accordance with article 23 of the Fundamental Text.

Therefore, as affirmed in the Inter-American Democratic Charter signed September 11, 2001 in Lima, Peru, the participative character of the democracy in Venezuela, in the different ambits of the public activity, progressively tends to the consolidation of the democratic values and the freedom and the solidarity in the different political-territorial levels in which the public power is distributed through the Republic, and for that same reason, although the representative democracy is the foundation of the rule of law and of the constitutional regimes of the States Members of the Organization of American States, this is reinforced and deepened solely with the participation and permanent protagonic, ethic and responsible role of the people28.

According to this doctrine, one of the first values of political constitutionalism, as we have mentioned before, is democracy, being

28 See Case: Interpretación del articulo 71 de la Constitución in Revista de Derecho Público, Nº

93-96, Editorial Jurídica Venezolana, Caracas 2003, pp. 530 ff.

30

the Democratic State enshrined in the fundamental principles of the constitutional text, beginning with the way the sovereignty of the people is exercised, whether through representative methods or as direct democracy (article 70).

III. SOME INCONGRUENCES REGARDING THE CONSTITUTIONAL VALUES IN PRACTICE

Unfortunately, the constitutional process in Venezuela has not remained in the insertion in the Constitution of a set of constitutional values and principles to guide the performance of the government and the governed, nor in giving some prioritization or prevalence to some rights over others by means of judicial decisions; unfortunately, in some cases some incongruences can be identified, originated in the political legislative practice and inclusive on court decisions. Some examples can be identify regarding the exact value of the constitutional values and principles, as superior or global values above the Constitution itself; the exact hierarchy of international treaties on human rights regarding internal law, and particularly the Constitution; and the exact scope of citizens participation allowed by the State and the exact role of civil society in the process of participation and its State control.

1. The subjection of the superior values of the Constitution to the “political project” of the Constitution

As it can be concluded from the aforementioned, the 1999 Venezuelan constitution can be characterized as a Constitution of principles, whose norms are subjected to a set of values and superior principles that the Constitution itself enumerates extensively, in order to establish its axiological foundations and to impede that by means of interpretation, the application of the Constitution could be diverted from what is set forth by them. In that sense, it is difficult to find a Constitution in the contemporary world, with so express enumeration of so many values and principles, as the Venezuelan one has.

31

The important thing regarding this approach is that being about values and constitutional principles, these must inform and condition the sanctioning of statutes by the National Assembly and they also must guide the application of the Constitution by all branches of government and particularly by the courts. For that reason, the Constitutional Chamber in a decision Nº 963 dated June 5, 2001, has said:

“First, that the Magna Carta is an instrument with legal spirit that connects, according to the nature of the applicable precept, both the bodies of the State and the individuals; second, that the Constitution itself grants or imposes constitutional juridical situations – either for rights or duties – with reference to indispensable values for the assurance of the human freedom, equality and dignity; and finally, that the Constitution has designed a system that guarantees such juridical constitutional situations, in which the Judiciary plays a first order role”29.

In another decision, N° 1278 dated June 17, 2005, the Constitutional Chamber indicated that:

“Being the Constitution the document in which the values generally share by the society are reflected, those clarifications of purposes have an indubitable value, both for the bodies of the State that must be guided by them, and for the judges, specially this Chamber as maximum juridical protector of the constitutionality. The diverse purposes that the State assumes are orders that must be executed. It would be of little use, a text lacking enforceability regarding its addressees: public authorities and individuals”30.

Nonetheless, in a completely incongruent way with the superior character of these values enshrined in the Constitution, the same Constitutional Chamber of the Supreme Tribunal of Justice, in prior decision Nº 23 dated January 22, 2003 when arguing about the constitutional interpretation, has “subjected” those supra constitutional

29 See Case: José A. Guía y otros vs. Ministerio de Infraestructura, in Revista de Derecho

Público, Nº 85-88, Editorial Jurídica Venezolana, Caracas, 2001, p. 447. 30 See Case: Aclaratoria de la sentencia de interpretación de los artículos 156, 180 y 302 de la

Constitución, in Revista de Derecho Público, Nº 102, Editorial Jurídica Venezolana, Caracas, 2005, pp. 56 ff.

32

values to the category of sub constitutional norms, allowing even the prevalence of the interpretation that the judge makes of the Constitution, regardless of the universal meaning of those values, arguing that “to interpret the legal system according to the Constitution, means then, to protect the Constitution itself from every diversion of principles and from every separation from the political project that it embodies by will of the people”, and adding:

“Thus, a system of principles, assumed to be absolute and supra historical, can not be placed above the Constitution, nor that its interpretation could come to contradict the political theory that supports it. From this perspective, any theory that propose absolute rights or goals must be rejected and, even though intra-constitutional antinomies between norms and between these and the legal principles (unconstitutional constitutional norms) are not excluded, the interpretation or integration must be done according to the living culture tradition whose sense and scope depend on the concrete and historical analysis of the values shared by the Venezuelan people. Part of the protection and guarantee of the Constitution of the Bolivarian Republic of Venezuela is established then, in an in fieri politic perspective, reluctant to the ideological connection with theories that can limit, under pretext of universal validities, the supremacy and the national self-determination, as demanded in article 1° eiusdem”31. This political-positivistic conception of the Constitution,

unfortunately leaves the interpretation of the very rich constitutional values and principles extensively enumerated if the Constitution, and of the Constitution itself, at the mercy of the constitutional judge –that as all judges are circumstantial-, to the point for instance, of having disposed that only the Constitutional Chamber of the Supreme Tribunal is the one that can interpret when a programmatic norm in the Constitution is of immediate application and, particularly, when its content is justiciable; understanding the Chamber as programmatic norms, “those that, inspired by a goal, foresee the need to materialize it, but leave their development to the legislator, representative of the

31 Case: Interpretación del article 71 de la Constitución, in Revista de Derecho Público, Nº 93-

96, Editorial Jurídica Venezolana, Caracas 2003, pp. 530 ff.

33

popular will”32. The Constitutional Chamber resolved the following in a decision N° 332 dated March 14, 2001:

“The provisions of the Constitution have a complete force and direct application, and when the statutes have not developed their exercise and it is required to resort to the courts of justice, due to the direct application of said norms, it is the constitutional jurisdiction represented by this Constitutional Chamber, who will resolve the controversies that might arise as the result of the legislatively undeveloped constitutional provisions, until the laws that regulate the constitutional jurisdiction decide otherwise”33.

This monopoly assumed by the Supreme Tribunal to decide when for instance a right inherent to human beings derives from a programmatic provision and is enforceable, has created in this matter, limits to the general application and interpretation powers the Constitution assigned to all courts that can not be founded in the Constitutional Jurisdiction attributions framed in the same Constitution.

2. The illusion of separation of powers (check and balance) and the concentration of State powers

As it has been said, one of the most fundamental principles regarding the organization of the State in the 1999 Constitution, is the principle of separation of powers, particularly at the national (federal) level of government, giving way to a penta division of branches of government. This division is established as a democratic tool for limiting the exercise of State powers, in order to preserve freedom, by means of the balance that must exist between the different branches of government.

But unfortunately, this division of branches of government in five independent and autonomous ones, the Legislative, Executive, Judicial,

32 See Case: Aclaratoria de la sentencia de interpretación de los artículos 156, 180 y 302 de la

Constitución, decision N°. 1278 dated June 17, 2005, in Revista de Derecho Público, Nº 102, Editorial Jurídica Venezolana, Caracas, 2005, pp. 56 ff.

33 See Case: INSACA vs. Ministerio de Sanidad y Asistencia Social, in Revista de Derecho Público, Nº 85-88, Editorial Jurídica Venezolana, Caracas, 2001, p. 492.

34

Citizens and Electoral Powers, seeking to avoid the concentration of the same, results in an illusion, has been distorted in the Constitution itself by providing the germ for the “disequilibrium” of those branches, allowing a concentration of powers that has open the way for the installment of an authoritarian regime.

This germen of power concentration is expressly established in the Constitution by assigning the National Assembly (the legislative branch of government), the authority not only to appoint, but to dismiss from office the Magistrates of the Supreme Court of Justice and the head of the Electoral and Citizens powers bodies in a way that in the end is only based on political motives.

Regarding the appointment of such public officials, even tough the Constitution tried to limit the political discretional power of the Assembly to make the appointments by means of creating “Nominating Committees” integrated by representatives of sectors of civil society, they have not worked as initially envisage, because of the legislation that has been sanctioned distorting the effective civil society participation, and on the contrary, as it is argued below, have assure the almost exclusive discretional political power of the National Assembly to nominate the candidates.

But regarding the political dismissal from office of the Magistrates of the Supreme Tribunal of Justice and of the heads of the Electoral (National Electoral Council) and Citizens (General Prosecutor, General Comptroller and Peoples’ Defendant) branches of government, the Constitution itself contradict any idea of autonomy and independence between them, by allowing their almost unrestrained dismissal from office. In effect, the Constitution gives the National Assembly the authority to dismiss from office the Judges of the Supreme Tribunal of Justice (article 265), the General Comptroller of the Republic, the General Prosecutor of the Republic, and the Peoples’ Defendant (article 279); as well as the members of the National Electoral Council (article 296). For such purposes, in general terms, a two third of the votes of the Assembly is required, and for grave and vaguely defined motives. But even in some cases, it has been the National Assembly

35

that has bypassed this restriction, and in the cases of the Magistrates of the Supreme Tribunal of Justice, by statute has set forth for their dismiss, by simple majority, converting in fact the autonomy and independence of the Judiciary in a simple illusion34. The sole fact that this power to dismiss exists in the hands of the most political of all the branches of government, impede the development of real independent and autonomous bodies.

The fact is that with these attributions, an inconvenient supremacy of the Legislative Power (National Assembly) over the Judiciary and the Citizens and Electoral powers has been developed during the past years, following the provisions set forth in the Constitution itself, which has provoked that the members of said bodies have become mostly dependent regarding the political will of the Legislator, without any check and balance whatsoever. This regulation, through the partisan political control of the National Assembly, has eventually derived in the supremacy of the Executive, converting it in a power controlling all the others, and effectively concentrating State powers.

So the separation of powers, even in a penta division framework, is no more than a constitutional illusion.

3. The contradictory centralized federal State

But regarding the other constitutional principle for limiting State power by its vertical or territorial distribution, tending to frame a “decentralized Federal State” as it is defined in article 4 of the Constitution, and to convert decentralization into a national policy as is also defined in article 158, again, it is the Constitution itself,

34 See the comments in Allan R. Brewer-Carías, “La progresiva y sistemática demolición

institucional de la autonomía e independencia del Poder Judicial en Venezuela 1999-2004”, in XXX Jornadas J.M Dominguez Escovar, Estado de derecho, Administración de justicia y derechos humanos, Instituto de Estudios Jurídicos del Estado Lara, Barquisimeto 2005, pp.33-174.

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throughout its own provision that contradicts such assertion, originating, in contrary sense, a “Centralized federation”35.

Federalism by definition is a decentralized form of government, based in an effective distribution of powers within the various territorial levels of the State. It is true that the Constitution enumerates the competencies attributed in an exclusive way to the national (Article 156), state (Article 154), and municipal (Article 178) levels of government, but reserving almost all to the national and municipal levels, with just a very few attributed to the States. On the other hand, State Legislative Councils can enact legislation on matters that are in the States’ scope of powers (Article 162), but being almost all of them concurrent matters, according to the same Constitution their exercise depends on the previous enactment of national general statutes, being the possibility for states to regulate them very small.

On the other hand, in terms of residual powers, the principle of favoring the states as in all federations, that was a constitutional tradition in Venezuela, in the 1999 Constitution has also been limited by expressly assigning the national level of government a parallel and prevalent residual taxation power in matters not expressly attributed to the states or municipalities (Article 156.12).

In the Venezuelan federation, the Senate, and the bicameral nature of the legislature, has been eliminated (article 159), resulting in a rare federal state without a federal chamber or Senate, where the States, through its representatives, have no way to be equals in the sense of equal vote. In the National Assembly there are no representatives of the States, and its members are global representatives of the citizens and of all the States collectively.

35 See Allan R. Brewer-Carías, Federalismo y Municipalismo en la Constitución de 1999

(Alcance de una reforma insuficiente y regresiva), Editorial Jurídica Venezolana, Caracas-San Cristóbal 2001; Allan R. Brewer-Carías, “La ‘Federación Descentralizada’ en el marco de la centralización de la Federación en Venezuela. Situación y perspectivas de una contradicción constitucional”, in Allan R. Brewer-Carías, Constitución, Democracia y Control el Poder, Centro Iberoamericano de Estudios Provinciales y Locales, Universidad de los Andes, Mérida 2004, pp. 111-143.

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On the other hand, except on matters of official stationery and revenue stamps (Article 164.7), no taxation power has been given to the states, and virtually everything in the 1999 Constitution concerning the taxation system is more centralized. Lacking their own resources from taxation, state financing is accomplished by the transfer of national financial resources through three different channels, which are all politically controlled by the national government.

The States, according to the federal Constitution have the power to enact their own sub nationals Constitution, mainly for the organization of their branches of government (article 162); but this power has been seriously limited by the 1999 Constitution, which empowers the National Assembly to enact national statutes on the matter, in a manifestation of centralism never before envisioned. In particular, the National Assembly must and have sanctioned an Organic Law for the State Legislative Councils (2001) in which detailed regulations have been established on their organization and functioning, provoking the voiding of the State’s Constitutions on the matter. Additionally, the possibility of organizing the Executive branch of each states’ government is also being limited by the 1999 Constitution, which has established the basic rules concerning the Governors as head of the executive branch, as well as for all public administration. And even the National Assembly has sanctioned a Law on the appointment of the States’ Controller (2001), which limits, the powers of the State Legislative Councils without constitutional authorization36.

4. The Constitutional Jurisdiction as a limit to the constitutional hierarchy of international treaties in matters of human rights

As aforementioned, Article 23 of the 1999 Constitution, with out doubts, is one of the most important ones in matters of human rights, not only because setting forth the supra-constitutional rank of international treaties on human rights, but because prescribing the direct and immediately applicability of such treaties by all courts and

36 See Allan R. Brewer-Carías, Derecho administrativo, Vol II, Universidad Externado de

Colombia, Bogotá 2005, pp. 197 ff.

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authorities of the country. Its inclusion in the new Constitution was a significant advancement in the completion of the protection framework of human rights.

But unfortunately, this very clear constitutional provision has also been interpreted in a restricted way by the Constitutional Chamber of the Supreme Tribunal, in a sense openly contrary to what it states, and to what was the intention of the Constituent Assembly when sanctioning it37. In effect, in a decision No 1942 of July 7th, 2003 when resolving a judicial review action on the constitutionality of some Penal Code articles regarding the freedom of expression that where challenged because contrary to international treaties, the Constitutional Chamber ruled as follows:

First, the Chamber stated that article 23 of the Constitution, contained two key elements, first, that “It refers to human rights applicable to human beings”(not to artificial persons); and second that “It refers to provisions (of international treaties) setting forth rights and not to decisions or opinions of institutions, resolutions of bodies, etc, established in the treaties; thus only it refers to provisions that created human rights”38.

The Constitutional Chamber was repetitive by stating that “It is a matter of prevalence of provisions of treaties, covenants or agreements referred to human rights, but not to reports or opinions of international bodies which pretends to interpret the scope of international instruments”. The Chamber concluded that it is clear that according to article 23, “the constitutional hierarchy of treaties, covenants or conventions refers to its norms which once integrated into the Constitution, the only institution capable of interpreting them

37 Allan R. Brewer-Carías, “Quis Custodiet ipsos Custodes: De la interpretación

constitucional a la inconstitucionalidad de la interpretación”, in VIII Congreso Nacional de derecho Constitucional, Perú, Fondo Editorial 2005, Colegio de Abogados de Arequipa, Arequipa, septiembre 2005, pp. 463-489.

38 See the text in Revista de Derecho Público, No 93-96, Editorial Jurídica Venezolana, Caracas 2003, pp. 136 ff.

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regarding Venezuelan law, is the constitutional judge being according to article 335 of the Constitution, only the Constitutional Chamber”; insisting in the same proposition by stating that:

“Once the human rights substantive provision contained in Conventions, covenants and treaties have been incorporated to the constitutional hierarchy, the maximum and last interpreter of them, regarding internal law, is the Constitutional Chamber, which determine the content and scope of the constitutional norms and principles (Article 335), and among them are the treaties, covenants and conventions on human rights, duly subscribed and ratified by Venezuela”

From this proposition, the Constitutional Chamber concluded that “is the Constitutional Chamber the only one that determines which norms on human rights contained in treaties, covenants and conventions, prevails in the internal legal order; as well as which human rights non incorporated in such international instruments have effects in Venezuela”; concluding that:

“This power of the Constitutional Chamber on the matter, derived from the Constitution, and cannot be diminished by adjective norms contained in the treaties or in other international texts on human rights subscribed by the country, which allows the States parties to ask international institutions for the interpretation of rights referred to in the Convention or covenant, as it is established in article 64 of the Approbatory statute of the American Convention of Human Rights, San José Covenant, because otherwise, the situation would be of a constitutional amendment, without following the constitutional procedures, diminishing the powers of the Constitutional Chamber, transferring it to international or transnational bodies, with the power to dictate obligatory interpretations” 39.

The Constitutional Chamber concluded its decision based on sovereignty principles, arguing that decisions adopted by international courts cannot be enforced in Venezuela, but only when they are according to what is stated in the Constitution. Thus, the supra constitutional rank of treaties when establishing more favorable

39 See the text in Revista de Derecho Público, No 93-96, Editorial Jurídica Venezolana,

Caracas 2003, pp. 136 ff.

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regulations regarding human rights was suddenly eliminated by the Constitutional Chamber, assuming an absolute monopoly of Constitution interpretation for determining when a treaty provision prevails in the internal order; power that according to the Constitution the Constitutional Chamber does not have.

This restrictive interpretation was really issued in a ruling devoted to deny any constitutional value and rank to the recommendations of the Inter-American Commission on Human Rights, thus refusing to consider unconstitutional some articles of the Penal Code regarding restrictions to the freedom of expressions of thought when referring to public officials that were contrary to the recommendations of the Commission which was argued were obligatory for the country40.

The restrictive approach of the Venezuelan Constitutional Chamber regarding the value on internal law of the Inter American Commission on Human Rights decisions was previously stated in a decisions dated May 5th, 2000, in which the Constitutional Chamber objected the quasi-jurisdictional powers of the Inter American Commission when issuing provisional measures regarding a State, qualifying it as “unacceptable”, stating that:

“[The Constitutional Chamber] also considers unacceptable the instance of the Inter American Commission on Human Rights of the Organization of American States in the sense of asking for the adoption of measures that implies a gross intrusion in the country Judiciary, like the suspension of the judicial proceeding against the plaintiff, measures that can only be adopted by the judges exercising their judicial attributions and independence, according to what is stated in the Constitution and the statutes of the Republic”41.

40 See decision N° 1942 of July, 15, 2003, in Revista de Derecho Público, No 93-96, Editorial

Jurídica Venezolana, Caracas 2003, pp. 136 ff. 41 See Case: Faitha M.Nahmens L. y Ben Ami Fihman Z. (Revista Exceso), Exp. nº 00-0216,

decisión nº 386 dated May 17, 2000. See the reference in Carlos Ayala Corao, “Recepción de la jurisprudencia internacional sobre derechos humanos por la jurisprudencia constitucional” en Revista del Tribunal Constitucional, nº 6, Sucre, Bolivia, Nov. 2004, pp. 275 ff.

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This unfortunate ruling can also be considered contrary to article 31 of the Venezuelan Constitution which ser forth the rights of everybody to bring before the international organizations on human rights, as it is the Inter American Commission on Human Rights, petition or complaints to seek protection (amparo) of their harmed constitutional rights. It is really difficult to enforce this specific constitutional right to seek international protection if it is the same Constitutional Chamber the one that refuses to accept the jurisdiction of the Commission.

5. The distortion of the civil society participation in the appointment of high public officials

As already mentioned, the 1999 Constitution can be consider as repetitive regarding the issue of the citizens’ political participation, and has directly regulate one of such means for the participation of civil society in public decision making process, establishing the existence of a few “Nominating Committees” formed by representatives of the different sectors of the society, with the attribution to propose candidates to be appointment by the National Assembly for the non elected high public positions of the branches of government (Magistrates of the Supreme Court of Justice, the Prosecutor General, the General Comptroller of the Republic and the Peoples defendant, as well as the members of the National Electoral Council).. Nonetheless, in the political and legislative practice, said participation has not been assured, because the National Assembly has practically kept the same discretional power that the old National Congress had over the designation of said public officials, which the new 1999 Constitution wanted to change.

The Constitution conceives the “Judicial Nominating Committee” (article 270), as a counseling organization of the Judiciary for the selection of candidates to be appointed Magistrates of the Supreme Tribunal of Justice (article 264), which must be “formed by representatives of the different sectors of the society, in accordance to what is established by the law”. In this way, a mechanism directly regulated in the Constitution was established in order to assure the

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direct participation of the “diverse sectors of the society” in a public decision-making process. However, in the 2004 Organic Law of the Supreme Court of Justice of 200442, the Judicial Nominating Committee, instead of being formed solely and exclusively “by representatives of the diverse sectors of the society” as demanded by the Constitution, was formed by “eleven (11) principal magistrates, with their corresponding substitutes, five (5) of them to be elected inside the National Legislative organ, and the other six (6) members, from the other sectors of the society, elected in a public proceeding” (Article 13,2). In fact, the result has been the creation of an “amplified parliamentary Commission” of the National Assembly (Article 13), half integrated by its members (representatives), even though as aforementioned, the Supreme Tribunal has ruled that by essence, representatives can not be considered representatives of the civil society.

Also, in the case of the Electoral Power, in order to guarantee the autonomy of the National Electoral Council, the Constitution limited the discretional power that the previous Congress has had for the appointment of the its holders, regulating also, an “Electoral Nominating Committee” formed by representatives of the different sectors of the society. However, in the 2002 Organic Law of the Electoral Power43, regardless of the constitutional demands, the integration of the Electoral Nominating Committee with representatives from the different sectors of the society was not respected; establishing instead another “amplified parliamentary commission” with that same name, integrated by twenty one (21) members, from which eleven (11) are representatives assigned by the plenary of the National Assembly with the two thirds (2/3) of the members present, and ten (10) postulates from the other sectors of the

42 See in Official Gazette Nº 37.942 de 20-05-2004. See the comments on the matter in

Allan R. Brewer-Carías, Ley Orgánica del Tribunal Supremo de Justicia. Procesos y procedimientos constitucionales y contencioso-administrativos, Editorial Jurídica Venezolana, Caracas, 2004.

43 See Official Gazette Nº 37.573 dated 11-19-2002.

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society”. With this regulation, the right to the political participation of the different sectors of the civil society to be part, exclusively, of the Nominating Committee, was confiscated44.

In this way, the constitutional mechanism created to guarantee the possibility of a direct participation of the citizens, through the representatives of the various sectors of society, in the process of selection and nomination of high public officers of the State, was completely distorted by the National Assembly.

With these nominating mechanism that are contrary to what is set forth in the Constituent, the diverse branches of government have become more dependant of the political power, giving way in the constitutional order, to a concentrated system of powers that is contrary to the proclaimed principles of autonomy and independence which where to derived form the penta-division of the branches of government. Through legislative practice and the omission of the Supreme Tribunal to exercise judicial review over the unconstitutional statutes, what was a very important constitutional innovation, unique in the world, has been left in paper. With this, unfortunately, the constitutionally guaranteed political participation of the citizens has also been left in paper and has been deceived by those who controls Power from parliament.

6. The contradictory State intervention in the internal life of civil society entities

But in some cases, the incongruence between constitutional provisions is not the product of judicial rulings or of political application of the Constitution, but of same norms of the Constitution. In this sense, the 1999 Constitution, contrary to all the participative phraseology it contains, can be considered as an interventionist and limiting text regarding the organizations of civil society itself, by

44 See the comments on the matter in Allan R. Brewer-Carías, La Sala Constitucional versus

el Estado democrático de derecho. El secuestro del poder electoral y de la Sala Electoral del Tribunal Supremo y la confiscación del derecho a la participación política, Los Libros de El Nacional, Colección Ares, Caracas 2004.

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establishing the jurisdiction of the National Electoral Council for “the organization of the elections of trade unions, professional associations and organizations with political objectives” and in general, to guarantee “the equality, reliability, impartiality, transparency and efficiency of the electoral processes…” (Article 293,6).

According to this provision, it is the Constitution that sets forth that the internal elections that can take place within the political parties, the trade union and professionals associations of any kind, in a compulsory way must be organized by the State, thorough one of the branches of governments (Electoral power), which constitute an open contradiction with the participatory feature attributed to the Constitution and with its declared goal to promote citizens participation.

Consequently, all the internal electoral processes within the political parties in Venezuela, from 2000 on must have been organized by the National Electoral Council; which in fact has not always occur due to the progressively configuration of the political arena in the country, as a one party prevalent one.

On the other hand, the State intervention has been active regarding civil society organizations. For instance, even though the trade unions are considered as not been “inside the structure of the Venezuelan public organization”45, the Electoral Chamber of the Supreme Court, in a decision N° 46 dated March 11, 2002, has justify such anomalous State intervention and supervision regarding social organizations, arguing that it tend:

“To guarantee [internal] democracy in said organizations through the transparency and celerity of their electoral processes and the selection of the legitimate authorities that are called to represent the interests and rights of those affiliated in the negotiations and collective conflicts of labor; in the procedures of conciliation and arbitrage; in the promotion, negotiation, celebration, revision and modification of collective labor conventions, and in

45 See in Revista de Derecho Público, Nº 84, Editorial Jurídica Venezolana, Caracas, 2000,

pp. 132 ff.

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everything necessary for the guarantee of the patrimony and the interests of the trade union organization”46.

On the other hand, regarding other civil associations of individuals or corporations, based on the same constitutional provision, the Electoral Chamber of the Supreme Tribunal of Justice has decided in many cases to participate in their internal functioning, as has happened for instance regarding neighbors associations, In a decision N° 61 dated May 29, 2001, the Constitutional Chamber considered that the matter was about an organizations “that the constitutional text, itself, refers to as ‘civil society’, being able to request, from the National Electoral Council, it intervention in order to organize their internal elections.”47 It has also happened even regarding social clubs or recreational associations, as it has been determined in a decision dated November 1, 2000, , in which the Electoral Chamber, once it was informed about the filing of an action for protection (amparo), ruled against the electoral regulations issued by the Electoral Commission of a social club, considering that the club even though been an association “that the constitutional text itself refers to as forming part of “civil society”, with authority to be freely constituted by its members, providing for their own organization, being nonetheless able to “request the intervention of the National Electoral Council for the organization of their internal elections”48.

As for other civil associations, like those referred to businesses and businessmen of industrial or commercial character, constituted as Boards (Cámaras), the Electoral Chamber of the Supreme Tribunal, in decision Nº 18, dated February 15, 2001, considered that a civil

46 See in Revista de Derecho Público, Nº 89-92, Editorial Jurídica Venezolana, Caracas, 2000,

pp. 148-149. 47 See Exp. 000064, Case: Asociación de Residentes de la Urbanización La Trinidad. See the

reference in Allan R. Brewer-Carías, Derecho Administrativo, Vol. I, Universidad Externado de Colombia, Bogotá 2005, pp. 413 ff.

48 See Exp. 0115, Case: Asociación Civil Club Campestre Paracotos. See the reference in Allan R. Brewer-Carías, Derecho Administrativo, Vol. I, Universidad Externado de Colombia, Bogotá 2005, pp. 413 ff.

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association called “Cámara de Comercios e Industrias del Estado Aragua” in virtue of its objectives to “encourage for the economical development and the social progress of the region, providing the collective effort of the sectors that form it”, as well as “the defense and the strengthening of the free initiative and the freedom of the enterprise”, constitutes an indirect participative mechanism – both economically and socially – of a sector of the people (industrials and commercials) in the national society life; thus “ even if the referred civil association is of a private character, its objectives transcend to the core particular interest“. For that reason, the Chamber considered that it was “justified to include it as one of the organizations of the “civil society” implicitly stated in article 293,6 of the Constitution”, reason for which it declared its jurisdiction to resolve on the challenging of the electoral held in the association “independently of the nature of the entity from which these proceed”49.

But in other more emblematic cases, the Electoral Chamber has admitted the obligatory intervention of the National Electoral Council in the electoral processes of civil associations like those of university professors, as it has occurred regarding internal elections in the professors association of the Universidad Central de Venezuela. Regarding these associations, the Electoral Chamber ruled in a decision No. 51 dated May 19, 2000, that article 293.6 refers to those “groups of people that in their condition of professionals, unite to defend their common interests and to achieve improvements also of common character, independently from the fact that their conformation is not done by expressed disposition of a statute, but by common agreement from its members, under a form of private right”. Within these, the Electoral Chamber precisely included the associations established inside the Universities, formed by the professionals of diverse

49 See Exp. 000017, Case: Cámara de Comercios e Industrias del Estado Aragua. This

jurisprudence was ratified by the same Chamber, according to verdict Nº 162, Exp. 2002-000077 dated 10-17-02 (Case: Cámara de Comercio e Industrias del Estado Bolívar). See the reference in Allan R. Brewer-Carías, Derecho Administrativo, Vol. I, Universidad Externado de Colombia, Bogotá 2005, pp. 413 ff.

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disciplines or knowledge areas that are part of the institution in their condition of professors, teachers or instructors, imposing on them the intervention of the State to organize their internal electoral processes50.

7. The illusion of the participatory democracy

Participatory democracy cannot be reduced to direct democracy mechanisms. To participate means to be part of, to appertain to, to be associated with, which in fact, is only possible for the citizen when political power is decentralized and thus, close to them.

So participative democracy, beside elections, is only possible when effective decentralization of power exists, which explains why only democracies can be decentralized51, and why authoritarian regimes can never installed in effective decentralized States. Only with local governments established throughout the territory of a country can democracy be part of everyday life.52

In particular, regarding the local governments (Municipalities), even though considered in the Constitution as the primary political unit (article 168), in practice and in the constitutional text they continue to be very far from the citizens’ reach, impeding any kind of real political participation. In fact, what has been created under the 1999 Constitution is a centralized and anti-participatory democratic system, in which the instruments for direct democracy have been deliberately confused with effective political participation. That is why local governments are gradually being bypassed by newly created councils and citizens assembly, within a statutory framework of “popular

50 See Case: Asociación de Profesores de la Universidad Central de Venezuela, in Revista de

Derecho Público, Nº 82, Editorial Jurídica Venezolana, Caracas, 2000, pp. 92 ff. 51 See Allan R. Brewer-Carías, “Democracia municipal, descentralización y desarrollo

local”, en Revista Iberoamericana de Administración Pública, No. 11, Ministerio de Administraciones Públicas. Madrid, Julio Diciembre 2003, pp.11-34.

52 See Allan R. Brewer-Carías, “Democratización, descentralización política y reforma del Estado” and “El Municipio, la descentralización política y la democracia”, in Allan R. Brewer-Carías, Reflexiones sobre el constitucionalismo en América, Editorial Jurídica Venezolana, Caracas 2001, pp. 105-141 and 243-253.

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power” all directed from the center by means of a Presidential Commission for the Popular Power, creating the idea that the people are “participating”.

In any event, what is certain is that the goal of participation cannot be achieved only by inserting instruments of direct democracy in a representative democratic framework, or by financing community actions controlled by the national Executive power.

Referendums can be useful instruments in order to perfect democracy, but by themselves cannot satisfy the aim of participation. This can be understood by studying the 2002-2004 process concerning the Venezuelan presidential recall referendum, which was converted into a presidential “ratification” referendum of a plebiscitary nature53. A recall referendum is a vote asking the people if the mandate of an elected official must be revoked or not; it is not a vote asking if the elected official must remain or not in office. But in the 2004 recall referendum, the National Electoral Council, when giving the voting results, converted it into a plebiscite ratifying the President.

The result of the implementation of the 1999 Constitution is that the Venezuelan democracy, from being a centralized representative democracy of more or less competitive and pluralist parties which alternated in government (1958-1998), since 2000 has been transformed into a centralized plebiscite democracy, in which effectively all power is in only one hand, that of the President of the Republic, supported by politically partisan vote of the national Assembly and the military, very close to a one-party system.

This plebiscite democracy system has created a popular participation illusion, particularly by means of the uncontrolled distribution of state oil income among the poor through governmental

53 See Allan R. Brewer-Carías, “El secuestro del Poder Electoral y de la Sala Electoral del

Tribunal Supremo y la confiscación del derecho a la participación política mediante el referendo revocatorio presidencial: Venezuela: 2000-2004” in Revista Costarricense de Derecho Constitucional, Tomo V, Instituto Costarricense de Derecho Constitucional, Editorial Investigaciones Jurídicas S.A. San José, Costa Rica 2004. pp. 167-312; and in Revista Jurídica del Perú, Año LIV, nº 55, marzo-abril. Lima 2004. pp. 353-396

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social programs that are not precisely tailored to the promotion of investment and to create employment. This plebiscite democracy, without doubt, is less representative and less participatory than the traditional representative party democracy, which, notwithstanding all the warnings54 that were raised, the traditional parties failed to preserve. All this is unfortunately contributing to the disappearance of democracy itself as a political regime, which is much more than only elections and referenda, as has been made clear by the 2001 Inter American Democratic Charter.

FINAL REMARKS

As aforementioned, the Venezuelan 1999 Constitution is one of those that in contemporary world has incorporated in its text a very enumerative, express an extensive list of constitutional values and principles defined as goals intending to guide the conduct and activities of the State, the Society and the individuals.

Thus, those global values and principles do not derive from the process of interpretation and application of the Constitution particularly by the courts, but from what it is expressly established in the text of the Constitution.

Undoubtedly, by means of constitutional interpretation mainly through the Constitutional Chamber of the Supreme Tribunal Court decisions issued as Constitutional Jurisdiction, the sense, the scope and the priority character of many of the constitutional principles and

54 See regarding this author’s wittings, Allan R. Brewer-Carías, El Estado. Crisis y reforma,

Academia de Ciencias Políticas y Sociales, Caracas 1982; and Problemas del Estado de partidos, Editorial Jurídica Venezolana, Caracas l988; Allan R. Brewer-Carías, “La crisis de las instituciones: responsables y salidas” (Cátedra Pío Tamayo, Centro de Estudios de Historia Actual, Facultad de Economía y Ciencias Sociales, Universidad Central de Venezuela, Caracas 1985), published in Revista del Centro de Estudios Superiores de las Fuerzas Armadas de Cooperación, N° 11, Caracas 1985, pp. 57-83; and in Revista de la Facultad de Ciencias Jurídicas y Políticas, N° 64, Universidad Central de Venezuela, Caracas 1985, pp. 129-155. Also see Allan R. Brewer-Carías, Instituciones Políticas y Constitucionales, Vol I, Evolución histórica del Estado, Universidad Católica del Táchira, Editorial Jurídica Venezolana, San Cristóbal-Caracas, 1996, pp. 523-541

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values have been defined and enriched, even by giving some of them a prioritization regarding others; but unfortunately, in other cases, they have been distorted by political legislative practice and inclusive by court decisions, originating some constitutional incongruence between what is said in the Constitution and what has been decided in the political practice of government.

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