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Venezuela (country profile)

VENEZUELA (Bolivarian Republic of Venezuela) Allan R. Brewer-Carías 1. History and Development of Federalism The Republic of Venezuela is located in the northernmost section of South America. It is the seventh largest country in Latin America, with an area of 916,000 km2 and 24 million inhabitants. The territory is divided into 24 states, a Capital District that covers part of Caracas, and Federal Dependencies comprised of a number of islands located in the Caribbean Sea. Its economy has been greatly influenced by the presence of oil.1 In 1777, after three centuries of Spanish colonization, the seven provinces that later comprised Venezuelan territory were grouped into the General Captaincy of Venezuela. In April 1810, these provinces, beginning with the province of Caracas, one by one declared their independence from Spain, and even drew up their own constitutions. Thus, Venezuela became the first Latin American country to gain independence from the Spanish Crown. In 1810, their elected representatives formed the first General Congress of the Provinces of Venezuela. This Congress enacted the first of the constitutions of an independent Latin American country, the Federal Constitution for the States of Venezuela, on 21 December 1811. This constitution was directly influenced by the constitutional principles that had been conceived of and established in the constitutions arising from the US War of Independence and the French Revolution. Although democracy was not forthcoming for some years, the Venezuelan Constitution of 1811 contained all the principles of modern constitutionalism: state sovereignty and republicanism; supremacy of the constitution as a product of the will of the people; organic separation of powers; territorial distribution of power; declaration of the rights of the country and citizens; and constitutional control to ensure constitutional supremacy. The 1811 constitution adopted a federal form of government which means that, following the United States, Venezuela was the second country to adopt federalism. Venezuela’s adoption of federalism doubtlessly occurred under the influence of the US Constitution, and had territorial justification similar to that which gave rise to the federal form of government in the north—in particular, the existence in the territory occupied by the former General Captaincy of Venezuela of seven provinces isolated one from the other, and socially and politically configured in different ways. A federal constitutional system enabled the establishment of an independent state which could unite what had never before been united. Consequently, federalism is an important part of Venezuelan constitutionalism and discussions about centralism-federalism have occurred throughout the country’s history. Indeed, the Liberator, Simón Bolivar, attributed the demise of the First Republic in 1812 to the federal form of government which unleashed a war of independence that lasted more than a decade. Under Bolivar’s influence, centralism was introduced, as evidenced by the constitutional reorganization of Venezuela in 1819 and in its disappearance and integration into the Republic of Colombia in 1821. Among other factors, it was the centrifugal forces that developed in the Venezuelan provinces which contributed to the failure of the “Gran Colombia” project, and led, in 1830, to the re-establishment of Venezuela with a centralized but federal form of government. Struggles between the central region and provincial forces began in 1830, and ended with a five-year war that was known as the Federal War (1858-1863). The triumph of the federal forces led to the establishment of the United States of Venezuela (1864). From that moment the form of government in Venezuela has always been federal. During the second half of the nineteenth century the country was riven by civil war. The federal system of government was kept, even following a revolution, but it remained limited by the centralizing elements that historically characterized the system. The marked centralism (military, administrative, tax and legislative) continued during the first decades of the twentieth century under the autocratic regime of Juan Vicente Gómez which ended in 1935. By that time the territorial distribution of power and territorial autonomy had almost disappeared, even though the government continued to maintain its federal form. Democratization of the country began in the 1930s, but the process was interrupted by the 1945 October Revolution and a decade of control by the military (1948-1958), led by Marcos Pérez Jiménez, who was overthrown by other military officers in 1958. It was under this junta that the move to democracy was reinstated. Elections held in 1959 were won by Rómulo Betancourt, who served as President until 1964. According to the 1961 constitution, the democratic government continued to be federal in form, but with highly centralized powers at the national level. A political decentralization process was begun in 1989 and included transferring competencies and powers of the national government to the states. Also in 1989, for the first time since the nineteenth century, state Governors were elected by universal, direct and secret votes, and regional political life began to play an important role in the country. A crisis in the party system gave rise to the 1999 Constituent Assembly process and to a radical change in the political players nationwide. This Constituent Assembly was the tool that the newly elected (1998) President, Hugo Chávez Frías—a former Lieutenant-Colonel who led an attempted coup d’état in 1992—used to provoke a democratic takeover of all the powers of government. The Assembly was elected in July 1999 and was made up of 131 members, 125 of whom were blind supporters of the President. Only a few dissident voices were heard during the six months it functioned—a very precarious “opposition”. In December 1999, a new constitution was sanctioned by the National Assembly and approved by referendum on 15 December 1999. The new constitution of 1999 did not, however, undertake the changes that were needed most—namely the effective political decentralization of the federation and the reinforcement of state and municipal political powers. The constitution of 1999 actually continued with the same centralized foundation and in some cases, centralized certain aspects even more. 2. Constitutional Provisions Relating to Federalism According to Article 4 of the constitution in effect as of 30 December 1999, the Republic of Venezuela “is a decentralized Federal State under the terms set out in the Constitution and is governed by the principles of territorial integrity, solidarity, concurrence and co-responsibility”. The standard, thus, is precise: it is a decentralized federal state according to “the terms set out in the Constitution”, although these terms are without a doubt centralizing. Venezuela has incorporated elements of federalism since 1811, but it has also been a “centralized federation”, and continues as such despite the affirmation to the contrary in Article 4. Article 136 of the constitution states that “[p]ublic power is distributed among the municipal, state and national entities”. This article thus establishes three levels of political autonomy in the territory: national power exercised by the republic (federal level); state power, exercised by the 24 states; and municipal power, exercised by the 338 existing municipalities. On each of the three levels, the constitution states that government must always be “democratic, participatory, elected, decentralized, alternative, responsible, plural and with revocable mandates” (Article 6). The organization of institutions on each territorial level is characterized by the principle of the organic separation of powers. On the national level, national public power is split among the “Legislative, Executive, Judicial, Citizen and Electoral” divisions (Article 136). The 1999 constitution thus surpasses the classic tripartite division of power by adding Citizen Power (Public Ministry, General Comptrollership of the Republic and the Public Defender), as well as Electoral Power (National Electoral Council). National executive power is exercised by the President of the Republic whose decisions often must be adopted in a Cabinet Meeting (Articles 236, 242). All Cabinet members are accountable to the National Assembly (Articles 242, 244), where the ministers are entitled to voice their opinions and may also be questioned (Article 245). The President is aided by an Executive Vice-President exclusively designated by the President (Article 238). The constitution of 1999 established a one-chamber National Assembly thus eliminating the country’s traditional bicameralism and specifically eliminating the Senate which had played a role as the egalitarian chamber of representatives of the states. The constitution simply established that the states “are politically equal” (Article 159). Consequently, Venezuela has become a federal state without a federal chamber in which the states can be equal. The constitution specifies that “the delegates [to the National Assembly] jointly are representatives of the people and the states and are not subject to mandates, nor instructions, but only to the dictates of their conscience” (Article 201), which effectively eliminates all vestiges of territorial representation. Representatives are elected based on a number calculated according to a basis of population equivalent to 1.1 per cent. Thus in 2000, as the estimated population of the country was 24 million, the population basis was 264,000 (24 million x 1.1% = 264,000). Each state, including the District Capital, is elected through the principle of proportional representation (Article 182), with one representative per each 264,000 inhabitants. The National Assembly elected in 2000 thus has 185 members. Each state has a Governor who is elected by universal, direct and secret vote (Article 160), and a State Legislative Council which is comprised of representatives elected according to proportional representation (Article 162). It is the responsibility of the Legislative Councils to enact the constitution of each state, in order to organize public powers along the guidelines of the Venezuelan Constitution which guarantees the autonomy of the states (Article 159). This, however, is seriously limited in the 1999 constitution which states that the organization and functioning of the State Legislative Chambers must be regulated by national law (Article 162)—a manifestation of centralism heretofore unforeseen in the history of Venezuelan federalism. It is true that the state Legislative Councils have the jurisdiction to legislate with respect to matters that are in the state’s competency (Article 162), but the problem is that the matters that are in their competency depend on national decisions and regulations, which in effect means that the legislative competency of the states is very limited, as it has always been in the past. The effectiveness of all federations lies in the territorial distribution of jurisdictional competencies—Governors and Legislative Councils in the states are of little use if they do not have specific competencies to exercise. This is the case of Venezuela where the 1999 constitution did little to ease the centralizing tendencies in the country, and indeed, contributed to intensifying that centralization. As to the municipalities, their autonomy is provided for in the constitution. This autonomy does not, however, have any constitutional guarantees, because it can be limited by national law (Article 168). The separation of power at the municipal level is maintained between the executive, represented by Mayors who are elected by universal, direct and secret vote (Article 174), and Municipal Councils, whose members are elected on the basis of proportional representation (Article 175). The constitution enumerates a number of issues for which competency is attributed to the bodies representing the National Power (Article 156) and Municipal Power (Article 178). According to Article 156, the National Power has competency in, for example, international relations, security and defence, nationality and alien status, national police, economic regulations, mining and oil industries, national policies and regulations on education, health, the environment, land use, transportation, industrial and agricultural production, and post and telecommunications. The administration of justice also falls within the exclusive jurisdiction of the national government (Article 156.31), except with regard to justices of the peace who are regulated by municipalities (Articles 178.7 and 285). Article 178 outlines that Municipal Powers have competency in, for example, urban land use, housing, urban roads and transport, advertising regulations, urban environment, urban utilities, electricity, water supply, garbage collection and disposal, basic health and education services, and municipal police. Some of these powers are of an exclusive nature but most of them are concurrent. As to State Power, the constitution fails to enumerate substantive, exclusive competencies and rather concentrates on formal and procedural ones. Furthermore, the limited number of those that it establishes are concurrent in nature—for example, municipal organization, non-metallic mineral exploitation, police, state roads, administration of national roads, and commercial airports and ports (Article 164). The constitution has limited the concurrent competencies—which traditionally have provided a broad field for possible action by state bodies—by subjecting their exercise to what the National Assembly establishes by means of “fundamental laws” that may subsequently be developed by the state Legislative Councils (Article 165). The legislation referring to concurrent competencies must adhere to the principles of interdependence, coordination, cooperation, co-responsibility and subsidiarity (Article 165). Except in the constitution of 1953 (1953-1961) which regulated in favour of the central government, residual power favouring the states has been a constitutional tradition in Venezuela. In the 1999 constitution, however, this residual competency of the states has been limited by expressly attributing to the national government a parallel and prevalent residual competency in taxes not expressly attributed to the states or municipalities (Article 156.12). It is important to note that although the constitution of 1999 is characterized by pronounced centralism, it did, however, preserve and re-affirm some decentralizing principles. Consequently, it repeated the standard of the 1961 constitution which allowed the National Assembly to transfer specific matters that are of national competency to the municipalities and states in order to promote decentralization (Article 157). It likewise expanded the decentralizing principle regarding the states to include the municipalities (Article 165), and with respect to both territorial levels, the constitution went one step further to include communities and organized neighbourhood groups as well (Article 184). Therefore, there is a pronounced tendency in the constitution to favour decentralization, which is even defined as “national policy” that “must strengthen democracy by bringing power closer to the people” (Article 158). Mention should be made of the sections in the constitution that discuss the financing of the federation. Virtually everything concerning the taxation system is more centralized than in the 1961 constitution, and the competency of the states in tax matters has been basically eliminated. Not only does the constitution list the competencies of the national government with respect to basic taxes (income tax, inheritance and donation taxes, taxes on capital, production, value added, taxes on hydrocarbon resources and mines, taxes on the import and export of goods and services, and taxes on the consumption of liquor, alcohol, cigarettes and tobacco) (Article 156.12), and expressly attribute to the municipalities taxation competencies with respect to local taxes (Article 179), but it also, as was earlier stated, gives the national government residual competencies in tax matters (Article 156.12). The constitution, thus, does not grant the states competency in terms of taxation, except with respect to official stationery and revenue stamps (Article 164,7). States can only collect taxes when the national government expressly transfers to them, by law, specific taxation competencies (Article 167.5). Lacking therefore their own resources from taxation, state financing is accomplished basically by the transfer of national financial resources through three different channels. First, it is done by means of the so-called “Constitutional Contribution by the Federal Government”, which is an annual item in the National Budget Law that is equivalent to a minimum of 15% and a maximum of 20% of total ordinary national income, estimated annually (Article 167.4). Second, a national law has established a system of special economic allotments for the benefit of those states in the territories of which mining and hydrocarbon projects are being developed. According to this law these benefits that have also been extended to include other states (Article 156,16). And third, financing for states and municipalities comes from national funds, such as the Intergovernmental Fund for Decentralization, created in 1993, or the Interstate Compensation Fund which is foreseen in the constitution (Article 167.6). 3. Recent Political Dynamics The democratic system established in 1958 developed over the past four decades as a democracy of parties, or a nation of parties, in which traditional political parties that were formed in the 1940s monopolized representation and political participation by controlling all the levels of power. Although during the first two decades of democracy this system ensured the implementation of democracy in one of the Latin American countries with the least democratic tradition, in recent decades that same system has had a perverse effect on democracy and on the functioning of the political system. Political parties and the institutions themselves progressively lost democratic legitimacy and the capacity to evolve and adopt the reforms that democracy needed. Those few reforms that were undertaken, such as political decentralization of the federation, did not make much headway. This led to a crisis in the political system and a serious power void as a result of the lack of leadership among the political parties. In 1998, that power void led to the collapse of the parties and to the ascent, by popular vote, of a military and grassroots leader (Hugo Chávez Frías). Chávez gave impetus to what was inevitable—change in the system. This is why a new constitution was drafted by a Constituent Assembly in 1999. As stated earlier, the constitution of 1999 consolidated the “Centralized Federation” that Venezuela has had for more than a century by centralizing power even more. In addition, it accentuated presidentialism by allowing unlimited legislative delegation by the President of the Republic (Articles 207, 237.8) whose term was extended to six years. Moreover, the constitution is characterized by a markedly military style that obscures the principle of the subjugation of military power to civil power with broad and obsolete regulations no longer used in the contemporary democratic world. As well, it contains detailed provisions regarding national security and defence that are reminiscent of the national security doctrine so in vogue in the Southern Cone Latin American countries of the 1970s. The blend of centralism, presidentialism and militarism gives Venezuela a constitution with a marked authoritarian inclination. This can be seen as the outcome of the crisis in the democratic system of parties whose leadership did not know how to introduce, in time, the changes needed to perfect democracy by making it less focused on parties and the state. 4. Sources for Further Information Brewer Carías, Allan R., La Constitución de 1999, Caracas, 2000. —, Las Constituciones de Venezuela, Caracas, 1997. —, Federalismo y Municipalismo en la Constitución de 1999 (Una reforma insufuciente y regresiva), Caracas, 2001. —, «Los problemas de la federación centralizada en Venezuela» en Revista Ius et Praxis, Facultad de Derecho y Ciencias Políticas, Perú: Universidad de Lima, N˜ 12, diciembre 1988, pp. 49-96. Brewer-Carías, Allan R., et al., Leyes y Reglamentos para la descentralización política de la Federación, Caracas, 1994. Combellas, Ricardo, Derecho Constitucional. Una introducción al Estudio de la Constitución de la República Bolivariana de Venezuela, Caracas, 2000. Delfino, María de los Angeles, La Descentralización en Venezuela, Caracas: Parámetros Legales y Constitucionales, PNUD, COPRE, 1996. Rondón de Sansó, Hildegard, Comentarios a la Constitución de 1999, Caracas, 2000. Villalba, Gustavo León, Descentralización en Venezuela, Caracas: FIDES, 1996. Note 1. In 1928 Venezuela was the world’s leading oil exporter, and the country was instrumental in the creation of the Organization of Petroleum Exporting Countries (OPEC) in 1960. In 1975 the oil industry was nationalized.