Constitutional reforms in Venezuela By Embassy of Venezuela in the US

On August 15, 2007, Venezuelan President Hugo Chávez
proposed a number of reforms to the 1999 Constitution.
Focusing on a small segment of the constitution’s 350
articles, the reforms aim to speed the redistribution of the
country’s resources to benefit the poor and widen the base of
direct citizen participation in the democratic process. They
are also intended to move Venezuela towards a new model of
development — known as “Socialism for the 21st Century”
— in peace and democracy. This model embraces
participatory democracy, a mixed economy, meeting the
country’s social needs and promoting a multi-polar world.

History

In 1999, the Venezuelan people overwhelmingly voted to
install a constituent assembly with the express purpose of rewriting
the country’s constitution. As part of an attempt to
break with the past and create an equitable and fully
representative democratic system, citizens, community
groups and civic associations actively provided input
regarding necessary changes. Of the 624 proposals the
Venezuelan people submitted, over 50 percent were
eventually included as part of the new constitution’s 350
articles.

The resulting 1999 Constitution expanded the rights of all
Venezuelans, formally recognised the rights and privileges of
historically marginalized groups, reorganised government
institutions and powers, and highlighted the government’s
responsibility in working towards participatory democracy
and social justice. In a national referendum, 71 percent of the
Venezuelan people voted to adopt the new constitution.
Copies of the 1999 Constitution are widely available in
Venezuela, and even more widely read. According to one
journalist’s account, “You can buy a plastic-bound copy of
the Venezuelan Constitution for 60 cents, a leather-clad copy
for $3, a coffee-table edition for $5. Not that you really need
a copy of your own, since someone standing near you on the
subway in Caracas will have one in his pocket. Or you can
always listen to one of the ongoing debates at a downtown
park. ‘Look at this article,’ someone will shout, and a half
The Activist Volume 17, Number 13, November 2007 45
dozen people will flip through the constitution’s 35,000
words and 350 articles to find the pertinent passage. ‘Yes,’
someone else will cry out. ‘But this one here is more to the
point.’”

Democratic process

According to Article 342 of the constitution, the National
Assembly, the president or 15 percent of registered voters —
roughly 2.5 million voters — can propose reforms to the
constitution. The proposals must be debated by the National
Assembly in three rounds — the first round began on August
21 — and voted upon with a two-thirds majority, after which
they will be put before the Venezuelan people in a national
referendum.

On October 25, the National Assembly completed the
third round of debates on the proposed reforms. On top of the
three rounds of debates, members of the National Assembly
had also traveled throughout Venezuela to discuss the
proposed reforms with community groups, civic
organisations, opposition activists and regular citizens. From
August 16 to October 7, some 9,020 public events — over
192 a day for 47 days — were held throughout the country to
provide information and take citizen input on the
constitutional reforms. Similarly, a special hotline established
by the National Assembly took over 80,000 phone calls —
over 1,700 a day for 47 days — in which Venezuelan citizens
were able to offer critiques of the proposed reforms or offer
reforms of their own. Additionally, the National Assembly
distributed 10 million copies of the proposed reforms to
interested citizens. Due to those combined efforts, 77.8
percent of the Venezuelan people reported having read and
being informed about the reforms.

Based on the national process of consultations with the
Venezuelan people, 25 additional reforms were proposed and
11 smaller changes were made, for a total of 69 proposed
reforms. The proposed changes will be sent to the National
Electoral Council on November 2, and a national referendum
will be scheduled for early December 2007 that will allow
the Venezuelan people to either approve or reject the
reforms.

Reform of Presidential term limits

Article 230 of the 1999 Constitution establishes that the
presidential term limit will be of six years and that any
president can be re-elected once. Under the proposed reform,
the presidential term would be extended to seven years and
any sitting president would be allowed to seek another
consecutive term.

The purpose of the reform is to allow the wishes and
preferences of the voters to be fully respected when it comes
to electing a president. As President Dwight Eisenhower
noted in 1956 in reference to debate over presidential term
limits in the U.S., “The United States ought to be able to
choose for its President anybody it wants, regardless of the
number of terms he has served.” More recently, in 2005 Rep.
Steny Hoyer (D-Md.) and Rep. James Sensennbrenner (RWisc.)
introduced legislation to do away with presidential
term limits. In reference to the legislation, H.J. Res. 24,
Hoyer, who now serves as the Majority Leader in the U.S.
House of Representatives, stated, “I feel there are good
public policy reasons for a repeal of [term limits]…Under the
Constitution as altered by the 22nd Amendment, this must be
President George W. Bush’s last term even if the American
people should want him to continue in office. This is an
undemocratic result.”

While this reform has been criticized as being
undemocratic, it is important to note that various mechanisms
will remain in place to ensure that the country’s president is
legitimately elected and held to account by the Venezuelan
people. The president will still face re-election, and the recall
referendum — an innovative democratic tool that allows
voters to cut short an elected officials’ term — will remain in
the constitution. It’s worth noting that the recall referendum
was successfully activated by members of the opposition in
August 2004, when 60 percent of the Venezuelan people
voted to allow President Chávez to finish his first full term in
office.

Economic reforms

During the last three years Venezuela has seen consistent
and record economic growth and diversification. More
importantly, new forms of economic activity, business and
entrepreneurship have been facilitated, allowing more
Venezuelans productive opportunities. A number of proposed
reforms to articles 112, 113, and 115 of the constitution
would expand upon these initiatives and formalize an
economic model centered on social welfare and a diverse
range of enterprises.

Article 112 currently guarantees the freedom of all
Venezuelans to engage in economic activity, while
mandating that the government promote private enterprises
that “create and guarantee the just distribution of wealth” and
direct economic activity towards the integral development of
the country. The proposed reform would mandate that the
government work to secure an economic system that is
“diversified and independent” and founded on the “human
values of cooperation and the preponderance of the general
interest.” The reform would expand the scope of economic
activity to not only include private enterprise, but also
socially oriented, cooperative and community-based models
of activity.

Article 113 currently states that economic monopolies will
not be permitted. The proposed reform would formally
prohibit economic monopolies and other actions to
concentrate economic power or resources. Moreover, the
reform would mandate that the government protect socially
oriented, cooperative and community-based models of
economic activity — the number of cooperatives has
increased from 800 to over 180,000 in recent years — and
would formalize the government’s ability to exploit the
country’s natural resources for the general good. Private
enterprises would still be allowed to exploit natural
resources, though in conjunction with government
enterprises.

Article 115 currently articulates the right to private
property, while stating that any property may be taken by the
government if just cause — the public good — is given and
adequate compensation granted. The proposed reform would
leave the right to and protection of private property
unchanged while adding a number of new classifications of
property. According to the reform, property not held in
private hands can be classified as follows:
Public: Fully owned and managed by the government.
Social: Owned by the Venezuelan people and either
managed by the government or by communities or other
institutions.

Collective: Owned and managed by groups of individuals
for their particular uses.

Mixed: A combination of ownership and management.
It is important to stress that private property will remain
and will enjoy the same protections it enjoys in other
countries. As detailed by the constitution and similar to the
U.S. and Western Europe, private property would only be
taken by the government only if the public good requires it
and if full compensation is offered. As an example, past
processes of land reform have shifted over 8.8 million acres
of unused lands to poor families, but in the case of private
lands, only with due compensation. Similarly, when the
government announced its intention to nationalize the electric
and telecommunications sectors, they paid the market value
of the two industries.

Reform of the Central Bank of Venezuela

Key to long-term growth and stability in Venezuela are
the policies of the Central Bank of Venezuela, an institution
charged with setting monetary policy and interest rates.
Central Bank policies over the last decades, though, have
limited economic growth and social development, a trend a
proposed reform seeks to correct.

Article 318 details the responsibilities, rights and structure
of the Central Bank of Venezuela. The proposed reform
would mandate that the Central Bank and the executive,
through the Ministry of Finance and the Ministry of Planning
and Development, more closely coordinate efforts to
implement policies that promote economic growth and
development. The reform would also limit the bank’s
autonomy while putting the country’s reserves under the
control of both the Central Bank and the executive branch for
the purpose of promoting “productive investments,
development and infrastructure, financing of social programs
and integral, endogenous and humanistic development.” This
reform will be an extension of a reform first made in 2005
that successfully allowed excess reserves — initially some $6
billion — to be directed to social programs and infrastructure
through the Fund for National Development (FONDEN in
Spanish).

While Central Banks have traditionally been insulated
from the governments they serve, this reform is vital to
Venezuela’s continued economic growth and development.
As Nobel laureate Joseph Stiglitz has argued, the many
tradeoffs involved in crafting monetary policy and promoting
economic growth in developing countries “cannot be
relegated to technocrats, particularly when those technocrats
place the interests of one segment of society above others.”
Historically, the central banks of the region have maintained
high interest rates and adopted policies that overvalued the
currency, thus limiting borrowing and investing (and, as a
consequence, economic growth) and making imports
artificially cheap and exports too expensive on world
markets. The reform intends to allow better coordination
between the executive and the Central Bank so as to
guarantee policies that secure sustained economic growth,
job creation and social development while maintaining
sustainable levels of inflation.

Political-territorial reforms

Like every other country in the world, Venezuela’s
political and territorial boundaries are divided into a number
of categories — nation, state, municipalities and a federal
district. A number of proposed reforms would expand and
clarify these political-territorial boundaries. These reforms
would further decentralize political power, thus allowing
communities the ability and resources to participate in
democratic processes and employ national resources to
identify and resolve local problems. They would also ensure
that areas that have remained underdeveloped due to location
and lack of infrastructure are better incorporated into national
and regional development schemes.

Article 16 currently defines the country’s politicalterritorial
boundaries, including states, municipalities, a
federal district, federal territories and federal dependencies.
Under the proposed reform, these boundaries would remain
in place and be fully respected, but would also be
complemented by the addition of maritime regions, insular
districts and cities. Within the latter, smaller units named
“communes” would be granted formal recognition, thus
allowing more active participation in municipal affairs by
individuals and community organisations. The reform would
also allow certain areas — those suffering from a lack of
development and poor infrastructure — to be designated
federal provinces, federal cities or functional districts in
which the government would be allowed to more easily direct
necessary resources for development.

Article 184 currently encourages the implementation of a
law to direct municipalities to provide resources and services
to those community and neighborhood organisations that
request them. The proposed reform mandates that a national
law be debated and passed articulating this transfer of
resources and services, which include housing, sport, culture,
environment, political participation, social economy and
endogenous development, job creation and other resources
and services currently handled by municipal bodies. The
national law would also create a fund to provide resources to
projects identified by communal councils.

Military reforms

Three reforms of articles related to the armed forces are
aimed at further securing Venezuela’s territorial integrity,
bringing all branches under a unified command structure and
better allowing the fight against drug trafficking and other
illegal activities.

The proposed reform of Article 11 would include mention
of Venezuela’s maritime possessions (some 270,000 square
miles) in the definition of its sovereign territory, while
allowing the executive to declare “Special Military Regions”
for the purposes of national defense or strategic activity
(fighting drug trafficking and international crime) and better
protection of border and/or remote areas. The proposed
reform of Article 329 would list the branches of the
Venezuelan armed services as the Army, the Navy, the Air
Force, the Territorial Guard and the Popular Militia (formerly
the National Reserves). While the National Reserves used to
be governed by a national law regulating the armed forces,
the new Popular Militia will be governed by the constitution
and under the same command as the other branches of the
armed forces. Finally, the armed forces would be renamed
the Bolivarian Armed Forces in reference of Simon Bolivar,
Venezuela’s independence hero.

Limitations on rights during emergencies
During the second round of debates, the National
Assembly proposed a reform to article 337 of the constitution
that would call for the suspension of certain political liberties
during what is known as a “state of exception,” or national
emergency. Articles 240 and 241 of the 1961 Constitution
similarly included limitations on civil and political rights
during times of national emergency.

While this reform has been criticized, it is fully consistent
with similar powers granted to democratic governments
around the world. Since the time of the French revolution,
governments have recognised that during moments of
massive disasters or extreme and imminent threats to the
standing and security of the nation additional and temporary
powers could be claimed by the executive to restore order.
Currently a number of Western democracies have laws
outlining the imposition of a state of exception or a state of
emergency, including Australia, Canada, France, Ireland,
Spain and the United Kingdom. In the United States, the
1976 National Emergencies Act allows the president to
invoke a state of emergency and limit certain rights —
including the right of habeas corpus — for up to two years.
There were 32 declared national emergencies between 1976
and 2001.

Moreover, international law recognises the right of
governments to limit certain rights in extreme circumstances.
Article 4 of the International Covenant on Civil and Political
Rights, which Venezuela ratified on August 10, 1978, notes,
“In time of public emergency which threatens the life of the
nation and the existence of which is officially proclaimed, the
States Parties to the present Covenant may take measures
derogating from their obligations under the present
Covenant.”

While the reform of Article 337 calls for the limitation of
certain rights during a national emergency, a number of
rights would remain, including the right to life and personal
integrity, the right to a defense, the right to a fair trial, and
the right not to be tortured, disappeared or held
incommunicado. This ensures that Venezuela remains
consistent — or in some cases even exceeds -- with its
international obligations.

Other reforms

When Venezuela’s Constituent Assembly re-wrote the
constitution in 1999, a large proportion of the articles focused
on granting new rights or expanding their application to
groups that had been historically marginalized. All told, 111
of the constitution’s 350 articles deal with political,
economic, social and cultural rights. Many of the proposed
reforms seek to deepen the protection and promotion of
certain rights and liberties:
The proposed reform of Article 21 would add sexual
orientation and health to the categories under which
discrimination is prohibited.
The proposed reform of Article 64 would lower the voting
age to 16, following the lead of Austria, Nicaragua and
Brazil.

The proposed reform of Article 82 would codify the right
to adequate housing for all Venezuelans and prohibit the state
from taking any home as part of a judicial sanction.
The proposed reform of Article 87 would call for the
creation of a social security fund for those Venezuelans that
are self-employed or in the informal sector.
The proposed reform of Article 90 would decrease the
workweek from 44 hours to 36 hours.
The proposed reform of Article 98 would protect the
creation and communication of cultural goods.
The proposed reform of Article 100 would formally
recognise and protect Afro-Venezuelan heritage and culture.
The proposed reform of Article 103 would articulate the
right to education for all Venezuelans, and mandate that all
public education through university be free of charge.
The proposed reform of Article 158 would mandate that
the government take all steps to ensure the active
participation of the citizenry in the country’s democratic
system.

The proposed reform of Article 272 would establish that
the Venezuelan penitentiary system direct its efforts towards
the full rehabilitation of prisoners and respect their human
rights during incarceration.

Conclusion

Just as the 1999 Constitution was written with massive
and widespread participation and input from the Venezuelan
people, the proposed reforms have been widely discussed and
debated. Additionally, in early December, the Venezuelan
people will have the opportunity to vote the reforms up or
down in a national referendum. These reforms will better
allow Venezuela to create a political, economic and social
system that is equitable, peaceful and democratic. _