Venezuela: Is there  a Constitutional Solution?

Speech by Ambassador Jorge Valero at The George Washington University before the Center for Latin American Issues (CLAI)
(Washington, DC January 17th 2003)

Our political process is quite singular, and I would even say very special, and it derives fundamentally from Venezuela ’s particular circumstances.  We are carrying with us an inheritance of the ills and virtues of the last four decades of the Twentieth Century.  Of struggles linked to a certain extent with the problems that have beleaguered all Latin American peoples.  In our case, however, what for many seemed a remote utopia, is today becoming a reality.

The collapse of the Venezuelan political model had as one of its main causes the crony politics practiced by the traditional parties.  In a gradual process, those political organizations became increasingly debilitated and eroded, to the point that they lost their political viability.  They established a system of party rule that concentrated power in small cliques that were unconcerned with the problems of the people.  Everyday life in the poor sectors of the cities became increasingly miserable; the rank and file party members were only taken into account when the time for voting approached, and people participated in elections with the understanding that one time they would vote with the green ballot of the Social Christian party, and the next time they would vote the white ballot of the Social Democratic party.  The rhetorical and demagogic speeches gradually lost their credibility.  It was in the context of these circumstances that in the year 1992 the country witnessed the emergence of a patriotic and progressive a military movement.  A movement that erupted in a manner totally different from the traditional military uprisings of an authoritarian nature, with their violations of human rights, tortures and assassinations.  The movement that occurred in Venezuela , based on the libertarian ideals of Simon Bolivar and of the other American liberators, became singularly identified with the people in an unprecedented manner.  From the very beginning, the common people – tired of the continued deceptions by the corrupt leadership that dominated the country – perceived Hugo Chavez Frias, then a Lieutenant Colonel, as their fundamental leader.

During his presidential campaign, Hugo Chavez promised to change the National Constitution with another that would be drafted by the people themselves, so that it would respond to their needs and expectations as a nation.  When he became President, he called on the country to summon a Constituent National Assembly with Originary powers.  From July to December of 200, all the sectors of the country, fully represented by their popularly elected constituents, defended and debated the foundations of a new national project with vigor and passion.  We must highlight the fact that in that transcendental experience, three representatives of Venezuela ’s indigenous communities were elected to the Assembly, and they were able to achieve, for the first time in the history of the Republic, a full recognition of their rights as originary peoples. The debate allowed the nation to recognize itself as a multiethnic and pluricultural society.  On December 15^th of 1999, the sovereign people, through a popular referendum, gave its full and resounding support to the path set forward by the Constitution of the Bolivarian Republic of Venezuela .

The Venezuelan Constitution is recognized as one of the most advanced constitutions of the continent.  The fundamental structure of the constitutional rule has as its governing consideration the principle of progressivity, through which the State assumes the obligation to guarantee to every individual “the inalienable, indivisible and interdependent enjoyment and exercise of human rights.  The guarantee and respect of these rights is an obligation for all the bodies of public authority, in conformity with this Constitution, with the treaties on human rights signed and ratified by the Republic and with the laws that develop said instruments.”  Article 19

Among the most prominent aspects of the Supreme Charter we can mention the principle of participatory democracy, through which the rights of the citizens are expanded by guiding them towards the achievement of a participatory role in society that guarantees their full development, both individually and collectively.  Within the framework established by this principle, the following rights were given constitutional rank:  the right to health as an integral part of the right to life; the right to culture and education; the right to a healthy environment, along with other rights that have been traditionally recognized.

Another of the innovations that need to be mentioned is the creation of a State constituted by five powers, which include, along with the three traditional powers, a Citizens Power and an Electoral Power.  The Citizens Power is based on three institutions:  the Ombudsman, the Attorney General and the Comptroller General of the Republic.  Article 2 of the Constitution is the basis on which the Citizens Power and the Moral Power have been created, since in that article the constituent expressed its intent as follows:

Venezuela constitutes itself as a Democratic and Social State of Law and Justice, which proclaims as the superior values of its legal order and its actions those of life, liberty, justice, equality, solidarity, democracy, social responsibility and, in general, the preeminence of human rights, ethics and political pluralism.”

  Towards a Constitutional, democratic, peaceful and electoral solution.

For the discussion being presented here, we need to examine two fundamental issues:

a)      The conflict of interests that is at the root of the Venezuelan situation

b)      The right and the obligation of the Public Authorities of the Venezuelan State to guarantee the control of Constitutionality.

a) The conflict of interests at the root of the Venezuelan situation.
Resistance to change always arises in every process of democratic transformation, in every process directed towards achieving justice.  The art of good governance is the capability to process that resistance – and even assimilate it – in a framework of respect for the Rule of Law.  And any government that takes pride in being democratic recognizes that dissidence is a source that can contribute to its own improvement.

In our country there are democratic sectors that are in opposition to the democratic Government.  They have the full right to do so.  The Constitution and, particularly, the exercise of our Government has guaranteed those rights to their greatest extent.  However, and I wish to say this categorically, in the opposition there are sectors that are not democratic.  Sectors that from the very day that President Chavez was sworn in as Head of State began to try to undermine his administration, using destabilizing methods and conspiring from the outset.  It is they who carried out the Coup D’Etat on April 11^th last year.  But it took only a few hours before the President was reinstated as Head of State by a clamorous, unprecedented popular movement.

Close to eight months after last April’s Coup D’Etat, a chain of events has been revealing the existence of destabilizing plans promoted by coup plotters in the opposition who are intent on creating widespread chaos in the country.  To this end irresponsible demands for the resignation of the President are voiced, and plans are being articulated to assassinate him; early elections are attempted at any cost, even if they alter the mandates of the National Constitution; some seek an intervention by external forces in Venezuela, and have even voiced of absurdity of requesting the UN “blue helmets” to intervene.

The strike initiated last December 2^nd is a perverse strategy aimed at removing Chavez from power, which began as a partial slowdown and is now proclaimed as an indefinite stoppage.  It is being kept alive through a media strategy carried out by the country’s news media, who to this end are using any and all means possible,with no respect for journalistic ethics, deforming the facts, manipulating the truth, and even using open and subliminal psychological mechanisms to induce a bias in public opinion.  This campaign is obviously also being conducted on an international scale in the most obscene way, trying to portray the democratic government of Hugo Chavez Frias as an “outlaw” regime that engages in systematic violations of human rights.  These lies are repeated a thousand times to give a semblance of truth and to generate confusion and uncertainty among some sectors of international public opinion.

The truth – the absolute truth – is that the Government we have in Venezuela is the most democratic, and the most respectful of human rights, that we have had in all our national history.  A good example of this is the absolute respect for freedom of expression.  In this regard it is important to recall what was said by ex President Jimmy Carter during one of his recent visits to Caracas , and I quote:  “I do believe that freedom of expression is quite alive in Venezuela , as much as is any other country that I have visited.  All you need to do is watch the television, listen to the radio, read the newspapers, where you can see condemnations, often inflammatory, of the Government’s policies, and that is how it should be…  So in my opinion, freedom of expression is fully developed here.”

Three national strikes have been activated against the Constitutional Government, one of which is the indefinite general strike presently in progress.  A Coup D’Etat took place during which all the institutions of the Rule of Law were dissolved, the name of the Bolivarian Republic of Venezuela banned, the legitimate President detained and kidnapped, and a repressive and bloody campaign directed against the followers of the political project that is being led by Hugo Chavez Frias.  Those who were responsible continue to take abusive advantage of the liberties that are fully respected today in our country.

In Venezuela destabilizing plans against the democratic institutions are in full swing, which include – again – the appearance on the political scenario of active officers of the National Armed Force who call to withdraw the support due to the legitimate Government.  At this time they also include the development of criminal acts of sabotage against the national petroleum industry, which, as you all know, is the heart and soul of the Venezuelan economy.  With these actions, extremely serious damages are being inflicted on the Nation’s public property, its assets and production installations and the refining process, as well as against national and international trade.

The destabilization plans have generated serious disturbances in the economies of neighboring countries that use significant percentages of our hydrocarbons, and have had a certain impact on the world energy market.  The Government of Venezuela, in conjunction with the other OPEC member countries, has exerted enormous efforts to maintain the stability of the price of oil in the international market.

And I should note that as all of this is occurring, the democratic Government is maintaining an absolute respect for human rights.  There are no political prisoners, not one; no one is tortured, no one has disappeared, no media outlets have been closed, no political parties have been suspended.  What is occurring is rather – as has been said – a full exercise of the fundamental rights enshrined in our National Constitution, one of the most advanced in the world, that from its essence proclaims a full guarantee for the exercise of human rights.

Many make the mistake of believing that the Government, by acting in a magnanimous and tolerant manner, is giving signs of weakness.  This is totally false, for the respect for human rights is not incompatible with the exercise of authority, which is being fully exercised by our Government.

The Government led by Hugo Chavez Frias has been subjected to systematic destabilization plans, which include a smear campaign of defamation against the National Armed Force and the civilian and military national emergency reconstruction plan known as Plan Bolivar.  The Government has faced an institutional coup through which certain Magistrates of the Political and Administrative Court of the Supreme Justice Tribunal attempted to thwart the truth.  They ruled that on April 11^th no Coup D’Etat took place – although the event fully recognized by the international community – arguing that what transpired was an “institutional emptyness”, a decision that has given leeway to other military officers to continue undermining the democratic order and its institutions.

Military officers who are still in the service, armed and in uniform, have called for a military insurrection, incite disobedience against the legitimately established authorities, and foster disorder and anarchy in the city of Caracas .

The opposition has attempted to activate a consultative referendum, assigning to it a revocatory nature and therefore fracturing the democratic rules of the game established in the National Constitution.  This is a political ambush intended to deceive wide sectors of the public.  Irresponsible attempts are made to paralyze the distribution and availability of food in the country.  Important activities of the national petroleum industry are being interrupted, affecting production volumes and the energy supply.  Equipment and installations are being damaged, including refineries, pumping systems and energy distribution mechanisms.  Ships that are property of the Venezuelan State are being hijacked, and attempts are being made to block the channel of Maracaibo Lake that allows shipping access to the sea.  They are also trying to prevent the free movement of oil tankers from foreign fleets that transport Venezuelan petroleum.

The main channels and newspapers of the news media have turned into political parties that strike out against the constitutional order.  Freedom of expression is a fundamental value of democracy, but that liberty must be used to promote the truth, not to undermine it by damaging democratic institutions.  The “information” that they divulge is directed exclusively to the preservation of the economic and political interests that they represent, leaving aside the common interest.

After the shameful episode of the April coup, an NGO called “The Global Observatory of the Media, Venezuelan Chapter,” set up shop in Venezuela for the purpose of analyzing the role of the news media.  On December 10^th it published a communiqué to the national and international public opinion in which it reveals that:

“From the moment the general strike was called, and particularly during the last five days, the country’s news media, and particularly the television stations in Caracas, are broadcasting messages of open incitation to intolerance and violence, seeking to create, maintain or deepen the willingness of the citizens to accept and actively participate in a confrontation of unpredictable consequences.

The vast majority of Venezuelans, even those that have particular political positions, do not want war.  But this majority has no access to the mass media.  The only leaders and activists allowed are those who share the same opinions of the executives of these news media companies and of some of the journalists that they employ.

It is also important to highlight the concerns expressed in the October 9, 2002 declaration by Human Rights Watch and the Washington Office on Latin America – WOLA – which states, and I quote:  The situation of the press is also cause for concern.  Instead of informing with impartiality and precision, most of the news media try to promote dissatisfaction and popular irritation, supporting the hard line of the opposition”.

Another serious criticism was expressed by Mark Weisbrot, co-director of the Center for Economic and Policy Research in Washington , in a report published in the Washington Post on January 12 of this year, which I shall quote, as follows:

“The opposition controls the private media, and to watch TV in Caracas is truly an Orwellian experience. The five private TV stations (there is one state-owned channel) that reach most Venezuelans play continuous anti-Chavez propaganda. But it is worse than that: They are also shamelessly dishonest. For example, on Dec. 6 an apparently deranged gunman fired on a crowd of opposition demonstrators, killing three and injuring dozens. Although there was no evidence linking the government to the crime, the television news creators -- armed with footage of bloody bodies and grieving relatives -- went to work immediately to convince the public that Chavez was responsible. Soon after the shooting, they were broadcasting grainy video clips allegedly showing the assailant attending a pro-Chavez rally.”

The National Government has maintained, in the course of the actions it has taken, a strict and absolute respect for the Rule of Law.  It has not invoked the State of Exception , which is allowed by the Constitution of the Republic and that could be called upon by any government that finds itself in similar circumstances.  And one of the reasons for which the Government has refrained from invoking the State of Exception is because it would require the restriction of certain liberties.

After April 11 the Government had two alternative options: to impose a policy of repression or to choose a path of dialogue.  As we all know, immediately after the people and by the National Armed Force liberated him, the President of the Bolivarian Republic of Venezuela made a call for National Dialogue, with no exclusions.  This call received the support of the Foreign Ministers of all the OAS countries gathered in Barbados on June 4, 2002 .

From the first day of his administration, President Chavez called upon all the national sectors to join and participate in the construction of the new country, with no exclusions or exceptions.  A real Dialogue with the participation of a wide range of national sectors, and not simply a dialogue among the elites.  A Dialogue directed towards putting in practice the democratic, libertarian and justice seeking concepts contained in the constitutional text.  A Dialogue to overcome injustices and achieve equality.  A Dialogue to overcome poverty through policies of solidarity.  However, the opposition refused to participate in this dialogue.  The obstruction of governmental policies became a constant practice.  By cynically manipulating the expectations of thousands of people, it deployed a fratricidal confrontation:  the Coup D’Etat of April 11, which was so firmly condemned by the international community and the OAS.

This must be known in the world.  This you must know:  in Venezuela certain political and economic elites wish to continue enjoying unwarranted privileges.  They wish to continue assaulting the National Treasury.  To continue practicing antinational behaviors that deserve the highest condemnation.  They are the same elites that for more than 40 years induced the collapse of the country.  That have unjustly appropriated the most fabulous wealth that may have been treasured by any nation.  The petrodollars are placed in immense proportions in the foreign bank accounts held by scoundrels who are the most corrupt in all history.  They took advantage of their extended hold on power in order to establish unsavory relationships with international interests.  The dialogue that the Government promotes is with the honest sectors of society.

A few days after the April coup, the Head of State signed a decree creating the Presidential Commission for Dialogue.  This Commission is been headed by the Executive Vice President, Dr. Jose Vicente Rangel, who has been a paradigm for the defense of human rights in Venezuela .

In view of the evasive attitude of the opposition, the Government agreed with the need to request the facilitation of three international entities, so that they could contribute with the task of national reconciliation.  For this purpose, and in full exercise of its sovereignty, the Government invited the Secretary General of the OAS, former President Jimmy Carter and the Carter Center , as well as the United Nations Organization.

Consequently, my dear friends, the Table of Negotiation and Agreements was an initiative of the Venezuelan Government, derived from a conscious strategy geared towards convincing the democratic opposition to embrace the advantages of dialogue.  The spokespersons of the opposition at the Dialogue Table are, nevertheless, constantly subjected to pressures from the radical opposition that seeks a coup.

This sector does not wish to engage in dialogue and, to the contrary, makes every attempt to block and undermine it.

The Government has highlighted the fact that the opposition has a double discourse.  One opposition speaks of dialogue and elections.  The other, the one that seeks a coup, promotes destabilizing plans against democracy.  To a certain extent the Table of Dialogue serves as a front for the coup-seeking opposition to communicate with the international community by pretending to support the Table.  And the truth is that in practice it does everything to undermine it.

The indefinite strike presently being executed is an action taken against dialogue.  Against the Table of Dialogue.  Against democracy.  Against the national interest.  The right to strike is a legitimate recourse for Venezuelan workers, whose execution requires compliance with the procedures established by our legal system.  A strike is intended to defend the legitimate rights of the workers, but it cannot be used with the intent to overthrow a legitimate government.  The only way to substitute a democratic Government is through democratic means.  The alternation between parties in a republic is achieved through peaceful, democratic and constitutional means.  Not through Coups D’Etat.  Not through indefinite strikes of a subversive and violent nature.  The agents of destabilization in Venezuela are trying to destroy the most valuable sector of our economy: the petroleum industry.  They do not care about the costs that their aberrant designs may impose on the country as a whole.

Meanwhile, a decisive majority of our people is mobilizing peacefully from one end of the country to the other in defense of democracy.  In defense of the petroleum industry.  In defense of the political project led by Hugo Chavez Frias.  Millions of human beings are participating.  But the news media does not cover these expressions of the popular sentiment.  The simple folk are rebuffed.  They are dismissed as a rabble, as lumpen, and are addressed with all kinds of disparaging language.  The poor are satanized, as are all supporters of President Chavez, even if they are of middle or upper class extraction.  The millions of men and women who live in the poor sections of the cities known as “barrios” are treated with contempt.  Those who march in demonstrations against the government – who of course have every right to express and promote their convictions – are described in the media as the “civil society.”  Those who back President Chavez, many of whom are organized in Bolivarian Circles, are called members of the “circles of terror.”

The Government of President Chavez has no fear of consulting the people through elections, since it is certain that it has the support of the majority of the Venezuelan people.  In three years and a half it has promoted and given its support to seven national electoral processes.  The President was even relegitimized through national elections, without a need to do so.  On two occasions he was elected President by the popular vote, during a period of two years.  In no other period of the nation’s history have there been so many elections in so short a period of time.  The National Constitution itself is the product of a referendum, another first in Venezuelan history.  The Government is aware of the fact that many Venezuelans do not share its political project.  They have a legitimate right to their disagreement.  The Constitution provides the means through which public officials elected by the popular vote can be removed from the exercise of their duties.

Our Supreme Charter contemplates, in its Article 72, the Referendum to Revoke Elected Mandates, in which it is stated that “All posts and judgeships that are attainable by popular election can be revoked.”  According to the constitutional rule, the revocation of an elected mandate can be carried out after half of the period for which the official has been elected has transpired.  This means that any official, from a mayor or municipal council deputy up to the President of the Republic himself can be relieved from the exercise of their functions, as long as the legal requirements are fulfilled.  This possibility available in Venezuela is an exceptional situation, living proof of the operation of a participatory democracy.  In no other hemispheric country does a rule such as this exist.  President Chavez’ term in office reaches its halfway point in August of this year.  This is only eight months away.  Why not wait until that moment?

The majority of the Venezuelan people waited for more than 40 years to renew a political class that had given ample proof of its obsolescence.  The National Government is willing to consider any electoral option, as long as it is contemplated within the constitutional text.  And we will not accept, whoever may propose it, and wherever they may wish to propose it, any electoral formula that violates our Supreme Charter.  For we are willing to sacrifice our lives for the Constitution of the Republic, and only the people shall determine the path to be followed by their Nation.  We are hopeful that solutions can be found at the Table of Dialogue that may lead to a national understanding.

b) The Right and the Obligation of the Public Authorities of the Venezuelan State to guarantee the control of Constitutionality.

The National Constitution of the Bolivarian Republic of Venezuela is the product of an originary constituent assembly or of the constituent power that resides in the sovereign people.  From this perspective it is fitting to inquire what authority the established power, the National Assembly or the people itself has to introduce changes to a text that has derived from the constituent power.  Taking into account also the fact that the Supreme Charter establishes the bodies and mechanisms that are responsible for the observance of the compliance with the constitutional text that must characterize all the actions of the public authorities and of the citizenry in general.  Such Authority is what has been described as the control of constitutionality.

In its Articles 340 to 346, the First and Second Chapters of Title IX, the Venezuelan National Constitution regulates all matters related to the Reform of the Constitution, and establishes the difference between Amendment and Reform.  The articles that define Amendment (art. 340) and Reform (art. 342) set limits to the established power when they state that actions can only be taken “without altering the fundamental structure” or “without modifying the fundamental principles and structure of the constitutional text.”

Another element must also be taken into account:  Article 346 that refers to the Enactment of the Amendment or the Reform by the President of the Republic after the amendment or reform has been ratified through the required approval referendum, “within the ten days following its approval.”  And it adds that “If he fails to do so, the applicable provisions of this Constitution shall apply.”  This means that the “applicable provisions” may include alternatives such as a request made to the Constitutional Court of the Supreme Tribunal of Justice for a decision on the constitutionality of all or part of the amendment of reform (Article 214) within the period of ten days, as well as the option that after the ten days have passed the President refrains from enacting the reform, so that the National Assembly itself must proceed to enact it, in the manner contemplated by Article 216 of the National Constitution.

Among the mechanisms designed to ensure and guarantee the integrity of the Constitution (Title VIII, Chapter 1), Article 334 in its last paragraph establishes the constitutional jurisdiction with which the Constitutional Court of the Supreme Tribunal of Justice is exclusively qualified to “declare the annulment of the laws and other acts of bodies that exercise public authority which are carried out in direct and immediate execution of this Constitution.”  Article 335 establishes that the aforementioned body “shall guarantee the supremacy and efficacy of the constitutional rules and principles … and shall see to the uniformity in its interpretation and application.”

It must be noted that the competent body (National Assembly or President of the Republic) or the group of electors that promote a constitutional amendment or reform do not become the bearers or subjects of the constituent power, and their faculties are limited by the very identity and continuity of the Constitution as a whole.  If the amendment or the reform incur in a breach of the rules contained in the text of the supreme law that is in effect or of its basic tenets and content, it is without a doubt an unconstitutional act, and can be declared as such by the appropriate jurisdictional body of the Supreme Tribunal of Justice:  the Constitutional Court.

We must also make reference to Article 24 (General Provisions of the First Chapter of Title III: On Human Rights and Guarantees, and On Duties) that contains the principle that “No legislative provision shall have retroactive effect, except when it imposes a lesser penalty,” which is an integral part of what in Legal Doctrine is known as the Fundamental Foundations of the Constitution.

Constitutional Solution: Consultative Referendum or Revoking Referendum.

The intent of the originary constituent established, within the framework of participatory democracy, mechanisms and procedures to expand and deepen the participation of citizens in all matters associated with the life of the nation and of their destiny as a people.

To this effect, the Venezuelan National Constitution contemplates four kinds of  referenda:  consultative, for approval, for revoking mandates, and for repeal or abrogation.  Very briefly we can state that the purpose of the approval referendum is to submit to the consideration of the citizenry legal bills being discussed by the National Assembly according to the procedures established in the constitutional text itself, as in the case, for example, of international agreements that could potentially compromise national sovereignty or transfer authorities to supranational bodies (Article 73).  As for the abrogation or repeal referendum, this instrument grants the citizenry the right to abolish laws or decrees with force of law, according the constitutionally established procedures (Article 74).

Consultative Referendum, Article 71.  “The matters of special national transcendence may be submitted to consultative referendum by initiative of the President of the Republic adopted with the Council of Ministers; by agreement of the National Assembly approved by the majority vote of its members; or by request of a number of electors no smaller than 10% of the electors included in the Civil and Electoral Register.”

Revoking Referendum, Article 72.  “All posts and judgeships that are attainable by popular election can be revoked.

Once half of the period for which the official has been elected has transpired, a number of electors no smaller than 20% of the electors registered in the relevant electoral territory may request the celebration of a referendum to decide on the revocation of said official’s mandate.

When a number of electors equal or greater than the number of those that elected the official vote in favor of revoking the mandate, but only if the number of electors who participate in the referendum is equal or greater than 25% of all the electors registered, the mandate of the official shall be deemed to be revoked, and immediate steps shall be taken to correct the absolute absence of authority, following the procedures established in this Constitution and in the law.”

Table of Dialogue, Negotiation and Agreements.

The Venezuelan political opposition introduced to the National Electoral Council a request for a Consultative Referendum in order to consult the citizens whether “they believe that the President of the Republic should Resign.”

The National Government maintains as its premise the defense of the Control of Constitutionality.  This means that any solution to the present crisis must be in accordance with the Supreme Law.  For this reason the Government and the political forces for change that support the Government maintain that the revoking referendum is the only applicable constitutional avenue.

The consultative referendum, applied in the way that the opposition wishes to use it, is unconstitutional; it is politically “sterile,” since it is not binding; it is judicially illegal if through this means what is sought is to force a person to adopt a decision against his will.  Besides, it would generate a state of ungovernability and chaos, since the use of the consultative referendum in this manner, with its lower threshold of 10% of the electors, would multiply the number of consultative requests directed towards revoking mandates, since the requirements for it to be held are easier to fulfill with a smaller number of requesting electors.

Texto en español