The Constitution of the
Bolivarian Republic of Venezuela

by Susan Scott, attorney

MITF Report, Marin Interfaith Task Force on the Americas, Summer 2005

The first thing Hugo Chavez did when he was elected to the presidency of the Venezuela in 1998 was to call for a constitutional convention. For decades the country had been governed by two political patties (AD and COPE!), under an agreement (made at Punto Fijo) to exclude other parties and bounce support back and forth between AD and COPE!. Before 1998, to do anything in Venezuela, from running for political office to participating in a beauty contest, you had to be on the list of AD or COPEI.

When Chavez called for a constitutional convention there was universal support for a change. But when he proposed a way of appointing the members of the Constituent Assembly, his opponents filed suit and won. The Supreme Court (which pre-existed the Chavez administration) came up with a formula for appointing a Constituent Assembly, resulting in an assembly of 130 members from all over the country. For 10 months the Constituent Assembly worked on drafting a constitution, and community, labor, and women's groups from all over the country submitted their ideas and language, much of which was incorporated into the final document The final draft was approved by 100% of the Constituent Assembly - including the right wing and anti-Chavez members - and was submitted to the populace at large in a referendum in 1999.

With great fanfare, the draft was overwhelmingly approved on December 15, 1999, and a new set of elections was held in 2000, under the new Constitution. Chavez again won the presidency, with almost 60% of the vote. During the ultimately unsuccessful coup d'etat in April 2002, the first decree, announced during the short-lived "Presidency" of Pedro Cannona, was cancellation of the Constitution.

Today a small blue book, the Constitution of the Bolivarian Republic of Venezuela, is given away on city streets throughout the country, and virtually every Venezuelan has a copy. As the slogan of the MVR (Chavez' Fifth Republic Movement) says: "Venezuela, Ahora es de Todos" (Today Venezuela belongs to all.)

Here are a few things you might want to know about the Constitution of the Bolivarian Republic of Venezuela:

Unlike the US Constitution and the French-inspired constitutions of many countries, the Venezuelan constitution follows the model set forth by Simon Bolivar, who lead the 19th century liberation movement from Spain in the area that is now Venezuela, Colombia and Ecuador. Instead of the three separate and autonomous powers we have in the US Executive, Legislative and Judiciary, the Venezuelan constitution provides for FIVE powers: Executive, Legislative and Judiciary as well as an independent "Citizen's Power" and "Electoral Power." The Citizen's Power is composed of three agencies, whose heads are all appointed by an elaborate nomination and approval process over which the President has no control. Those agencies are what we would call the Department of Justice (headed by the Attorney General), the Public Defender or Ombudsman (with a more extensive jurisdiction than our federal public defenders), and the office of the Comptroller General. The Electoral Power is headed by a commission, which is also nominated and selected by a process independent of the President

Some other major differences between our system and the new Bolivarian system are that judges, including the Supreme Court, have limited terms (12 years for the Supreme Court) and all judges other than the Supreme Court are elected by the people. All elected officials - from the local municipal councils to the judges to the President of the Republic - are subject to popular recall and the Vice President, appointed by the President, is subject to censure and removal by a 2/3 vote of the National Assembly. Referenda on legislation can be initiated by citizens as well as legislators and civil society groups. Although our press repeatedly refers to Chavez as a dictator, he is in fact, subject to recall (as was attempted unsuccessfully in 2004), has no power to appoint the Supreme Court or Attorney General and has no veto power over legislation. The President's term of office is 6 years and is limited to two terms. So, since Chavez was re-elected in 2000, under the new Constitution, his current term expires next year and if he is re-elected, he could serve until 2012.

The Bolivarian Constitution, in 350 articles, contains most all of the provisions of our Bill of Rights, including due process, public trials, jury of peers, free speech, freedom of religion, habeas corpus, prohibitions against ex post facto laws and double jeopardy. It also contains the following provisions that do not appear in our Constitution, some of which our courts have haggled over for decades:

* No death penalty

* No penalty of imprisonment for over 30 years

* No amnesty or pardon or statute of limitations for human rights abuses

* Specific provisions against forced disappearances

* Provision ensuring state ownership of all mineral and hydrocarbon deposits and prohibition against their transfer or alienation

* Right to use one's own name and know the identity of one's parents

* Right to protection of parental rights regardless of one's marital status

* Right to health care provided by the state

* No privatization of hospitals or health care services

* Right to join a union and strike (subject to conditions to be determined by law)

* Right to Social Security, regardless of contribution, including for homemakers

* Right to a clean and healthy environment and state protection of genetic and biological diversity

* Prohibition against patenting of genome of living being

* Prohibition against importation, manufacture or use of nuclear, biological or chemical weapons

* Right to subtitles and sign language on TV (which apparently has yet to be implemented)

The entire document is written in both male and female genders, and the recently adopted

Election Law contains a 50% rule, requiring that there be an equal number of female as male candidates for an elected office.

Ed. Note: The author participated in the MITF/Global Exchange delegation to Venezuela, April 8-19, 2005

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