The 1999 Venezuelan Constitution- Making Process As an Instrument for Framing the Development of an Authoritarian Political Regime

19 The 1999 Venezuelan Constitution- Making Process as an Instrument for Framing the Development of an Authoritarian Political Regime

Allan R. Brewer-Carías

n December 1999, a new constitution state power, state centralization, extreme was approved in Venezuela as a result of presidentialism, extensive state participation a constitution-making process developed in the economy, general marginalization of Iduring that year. A national constituent as- civil society in public activities, exaggerated sembly elected that same year sanctioned the state social obligations reflecting state oil- new constitution, which was submitted to a income populism, and extreme militarism.4 referendum held on December 15, 1999, and Unfortunately, the warning signs of 1999– approved.1 20005 have become reality. The political sys- © CopyrightThis author was an elected by member the of the Endowmenttem that arose from the 1999 constitution- of national constituent assembly, participating making process has turned out to be the thein all Unitedits sessions and constitutional States discus- Institutecurrent authoritarian of regime, Peace led by former sions. Nonetheless, eventually he opposed lieutenant-general Hugo Chavez Frías, one the sanctioning of the constitution and was of the leaders of the failed 1992 coup d’état.6 one of the leaders of the political campaign Chavez was elected president of the republic against approving the constitution in the in the general elections of December 19987 referendum. This position was based on his and was reelected in December 2006.8 Af- multiple dissenting and negative votes in the ter nine years of consolidating the existing constituent assembly and on his publicly ex- authoritarian regime, in August 2007 he pressed fear that the new constitution,2 de- proposed to the national assembly a radical spite its advanced civil and political rights reform to the constitution to formally con- regulations,3 was an instrument framed to solidate a socialist, centralized, and militaris- develop an authoritarian regime. This fear tic police state.9 The assembly sanctioned the was based on the constitution’s provisions reforms on November 2, 2007; the people, allowing the possibility of concentration of however, rejected them in a referendum held

505 506 Allan R. Brewer-Carías

on December 2, 2007. In any event, these constitution, through a coup d’état, a revolu- sorts of fundamental transformations of the tion, or a civil war.14 state can only be sanctioned by a national The constitution-making process of 1999, constituent assembly,10 and cannot be ap- in contrast, had a peculiarity that made it proved by a “constitutional reform” proce- different from all the previous processes in dure under Article 342 of the constitution, Venezuelan history, and even from many as the president proposed in contravention similar processes that have occurred in other of the constitution. In 2009, one of the re- countries in the last decades: It was not the jected “constitutional” reforms proposals of result of a de facto rejection of the previous 2007, seeking to establish the possibility for constitution, through a revolution, a war, or a the continuous reelection of the president of coup d’état. Rather, similar to the 1991 Co- the republic, was again submitted to refer- lombian, 2006 Bolivian, and 2007 Ecuador- endum held on February 15, 2009, this time ian15 constitutional processes, the Venezu- by means of a “constitutional amendment,” elan constitutional process of 1999 began as which was finally approved.11 a democratic process that in its origins did The 1999 constitution replaced the pre- not involve a rupture of the previous political vious 1961 constitution,12 becoming the regime.16 twenty-sixth such document in the history That said, the process did take place in the of the country.13 The 1999 constitution- context of a severe political crisis17 that was making process was not the first of its kind affecting the functioning of the democratic in Venezuelan constitutional history. Origi- regime established in 1958.18 The crisis had nally, the independent and autonomous state arisen from the lack of evolution from a sys- of Venezuela was created through two initial tem of overly centralized political parties,19 constitution-making processes. The first one which existed then and still exists to this took place in 1811, after the declaration of day. The call for the referendum consult- independence ( July 5, 1811) of the Spanish ing the people on the establishment of the colonies that were integrated in 1777 into constituent national assembly, made by the the General Captaincy of Venezuela, creat- then–newly elected Chavez through a decree ing the Confederation of States of Venezu- issued on February 2, 1999, intended to ask ©ela (1811Copyright constitution). The second by process the the peopleEndowment their opinion on a constituent of na- occurred in 1830, after the separation of the tional assembly “aimed at transforming the provinces of Venezuela from the Republic of State and creating a new legal order that al- Colombiathe Unitedthat had been created States nine years lows Institute the effective functioning of of Peacea social and earlier, in 1821, by Simon Bolivar, when he participative democracy.”20 This formal raison managed to integrate the ancient Spanish d’etre of the constitutional process of 1999 is colonies established in what is today the ter- why, with few exceptions, it would have been ritories of Ecuador, Colombia, and Venezu- difficult to find anyone in the country who ela (1830 constitution). opposed it. Few would argue against trans- Seven later constitution-making processes forming the state and putting into practice a were carried out in 1858, 1863, 1893, 1901, social, participative, and effective form of de- 1914, 1946, and 1953 through constit­ mocracy. To accomplish this goal, undoubt- uent assemblies or congresses, with as many edly, a political conciliation and participative resulting constitutions. In each case, the process were necessary. constitution-making process was the conse- But unfortunately, Chavez did not for- quence of a de facto rejection of the existing mally conceive the constitutional process as Framing the State in Times of Transition 507

an instrument of conciliation aimed at recon- cial and participative democracy, unless one structing the democratic system and assuring can consider as democratic the election of a good governance. That would have required populist government that has concentrated the political commitment of all components all branches of government and crushed po- of society and the participation of all sectors litical pluralism. If political changes of great of society in the design of a new functioning importance have been made, some of them democracy, which did not occur.21 Instead, have contributed to aggravating the factors the constitutional process of 1999 facilitated that provoked the crisis in the first place. the total takeover of state power by a new New political actors have assumed power, but political group that crushed all the others, far from implementing a democratic concili- including the then-existing political parties. ation policy, they have accentuated the dif- Almost all opportunities for inclusion and ferences among Venezuelans, worsening po- public participation were squandered. More- litical polarization and making conciliation over, the constitution-making process be- increasingly difficult. The seizure of power came an endless coup d’etat22 when the con- that characterized the process has opened stituent assembly, elected in July 1999, began new wounds, making social and political ri- to violate the existing 1961 constitution by valries worse than they have been for more assuming powers it lacked under that text than a century. Despite Venezuela’s extraor- and under the terms of the April referendum dinary oil wealth during the first years of the that created it. As an independent nonparti- twenty-first century, the social problems of san candidate, this author was elected to the the country have increased. 1999 constituent assembly and participated in all its discussions; he dissented orally and in writing on all these unconstitutional and The Political System, the Crisis undemocratic decisions.23 of 1999, and the Need for Democratic The following sections trace the regime’s Reconstruction seizure of power, beginning with the con- To understand the failure of Venezuela’s sultative referendum on the calling of a con- 1999 constitution-making process as an in- stituent assembly in April 1999, continu- strument aimed at reinforcing democracy, © Copyrighting through the election of bythe constituent the Endowmentit is essential to analyze its political of back - assembly in July 1999 and the period from ground. As previously mentioned, the pro- August 1999 to January 2000, during which cess began in the midst of a crisis facing the thethe assemblyUnited exercised supraconstitutionalStates Institutepolitical system established of Peacein Venezuela at power, and finally through the drafting, dis- the end of the 1950s. That system was es- cussion, and approval of a new constitution tablished as a consequence of the democratic by referendum in December 1999. The re- (civil-military) revolution of 1958, during view shows that the 1999 constitution- which then-president of the republic Gen- making process failed as an instrument for po- eral Marcos Perez Jimenez, who had led a litical reconciliation and democratization.24 military government for almost a decade, With the benefit of hindsight, it is now clear fled the country. that the stated democratic purposes of the The democratic revolution was led mainly process have not been accomplished. There by three political parties, the consolida- also has not been an effective reform of the tion of which began in the 1940s: the social state, except for the purpose of authoritarian democratic Acción Democrática (AD), the institution building, or the creation of a so- Christian democratic Partido Social Cris- 508 Allan R. Brewer-Carías

tiano (COPEI), and the liberal Unión Re- ment by statute of a different system at the publicana Democrática (URD) parties. The local level, which partially occurred in the parties agreed to establish democracy in 1980s and the 1990s.27 The absolute domi- Venezuela through a series of written agree- nance of the congress by representatives of ments, the most famous of which was the so- two or three political parties with no direct called Pacto de Punto Fijo (1958). That doc- relationships to their supposed constituen- ument constitutes an exceptional example in cies provoked the progressive popular rejec- the political history of Latin America of an tion of the parties and the congress, which agreement among political elites to assure was seen as an exclusive partisan body and the democratic governance of a country.25 not as a house of representatives of the peo- The democratic political system consoli- ple. As a result, electoral support for the two dated during the 1960s and 1970s under that main traditional parties, AD and COPEI, agreement featured a democracy of parties, dropped from 92.83 percent in 1988 to 45.9 centralism of the state, and a system of presi- percent in 1993 to 36.1 percent in November dential government subject to parliamentary 1998. In December 1998, when Chavez was control. elected president, support dwindled to 11.3 percent.28 At the beginning of the 1980s, the public Party Domination and the Demand began to make new and diverse demands for for Participation representation and political participation, but The political parties increasingly monopo- those demands were not met. Among other lized the political regime established from things, they called for a reform of the elec- the 1960s as a representative and pluralist toral system. In general, they wanted to make democracy. Though they had established the the democracy more participative. There was democracy, they did not understand that the thus an urgent need for local government re- effects of the democratization process- re form, as it was the only effective way to as- quired the system of governance to become sure democratic participation. However, this more representative and participatory.26 was not generally understood. Democratic representation ended up be- Municipalities in Venezuela were and still ©ing anCopyright issue exclusively for parties themselves.by the are soEndowment disconnected from their citizens asof to The d’Hondt method of electing party rep- be of no benefit to them. They are not the resentatives constituted a system of propor- primary political unit or the center of politi- tionalthe representation, United in which States party repre- cal Institute participation, nor are theyof an effectivePeace in- sentatives felt more and more accountable to strument to manage local interests. They are their party rather than to their constituents or accountable to no one; no one is interested community. In addition, public participation in them except the political parties, and they became a monopoly of the political parties, have become a mechanism of political activ- which progressively penetrated all of civil so- ism and unpunished corruption.29 ciety, from trade unions and professional as- Thus, while not eliminating political rep- sociations to neighborhood organizations. resentation, the 1999 reforms should have The proportional representation system created mechanisms that would have allowed was established directly in the 1961 consti- people to participate on a daily basis in their tution and applied to all representative elec- local affairs. This should have been one of the tions at the national, state, and municipal purposes of the constitutional process of that levels, allowing only the possible establish- year.30 Framing the State in Times of Transition 509

State Centralism and the Crisis modern era faced formidable challenges. Not of Decentralization only was it difficult to enhance the autonomy Venezuela has been a federal state since the of local authorities, but there was resistance Constitution of the Confederation of the also to admit the need to devolve power States of Venezuela, dated December 21, even to intermediate levels of government. 1811. Just as federalism was the only con- This state of affairs impeded the democrati- stitutional force uniting the previously in- zation of the country. Decentralization is a dependent thirteen colonies of the United consequence of democracy and, at the same States, in 1811 in Venezuela, it was the only time, a necessary condition to its survival and constitutional means of bringing together improvement. It is an instrument to exercise the dispersed and isolated seven provinces power at the intermediate level in the terri- that comprised the General Captaincy of tory, which should, in turn, link the activities of the center to regions and communities. Venezuela. Subsequently, Venezuelan po- 34 litical history has been marked by swings of There are no decentralized autocracies ; de- the pendulum between centralization and centralization of power is only possible in a decentralization31: In the early stages of the democracy. Consequently, the public outcry republic, despite the centralist orientations of of 1989 called for the parties to accelerate Simon Bolivar (1819–21),32 regionalist pres- state reforms related to political decentral- sure led in 1830 to the formation of a mixed ization on the basis of provisions in the 1961 central-federal form of state, which became constitution. As a result of these demands, in definitively consolidated as a federal system 1989 state governors were directly elected for in 1864 when the United States of Venezuela the first time in 100 years, and the introduc- was established. tion of direct elections of mayors superseded However, the federation as it existed in exclusive government by council on the local 35 the nineteenth century was abandoned in level. 1901, and throughout the twentieth century, Without a doubt, the above democratic the country experienced a process of political remedies breathed life into the system and centralization.33 Centralized governance was allowed democracy to survive in the 1990s. autocratic in its first phase, but beginning in Nevertheless, the decentralizing advances © Copyright1935, it evolved into the moreby democratic the Endowmentmade as of 199336 were abandoned of and the form of the past decades. At the end of the political system entered into a terminal crisis twentieth century, Venezuela remained a cen- in the last years of that decade.37 That crisis, thetralized United federation, with powerStates concentrated Instituteas mentioned above, ofprovoked Peace the calling of at the national level and illusory delegations a constituent assembly, the main objectives of power to the federal states. At the same of which should have been to realize the time, the centralism of the state led to the decentralization of power and consolidate centralization of the political system, as the democracy. political parties became dominated by party leaders and party organizations governed from the center (i.e., from Caracas). The Demand for Reform With the regional and local caudillo lead- Latin American constitutionalism in recent ership of the nineteenth century long over decades has experienced an expansion of and the twentieth-century consolidation of the traditional horizontal concept of separa- the national state, the call for increased de- tion of powers beyond the classic legislative, mocratization and decentralization in the executive, and judicial powers. Many Latin 510 Allan R. Brewer-Carías

American states have introduced a series pointments, which also lacked transparency of constitutional and autonomous institu- and participation of civil society.40 The de- tions outside of the three classical branches mands for reform called for both increased of government, such as general controller- checks and balances to break the monopoly ships, defenders of the people or of human of the political parties and reduce partisan- rights, judiciary councils, and public minis- ship, as well as increased judicial guarantees tries (or public prosecutors). In addition, to of constitutional rights to ensure greater citi- increase the participation of citizens in the zen participation in the democratic order. democratic order, they have introduced new Thus, the calling of a constituent assembly remedies to protect citizens’ rights. These in 1999 should have been used as a vehicle to measures have included judicial review of the include and reconcile all political stakehold- constitutionality of legislation and judicial ers beyond traditional political parties41 in guarantees of constitutional rights, together the redesign of the democratic system. The with improvement in citizens’ abilities to constituent assembly should have focused on use the action of amparo—a specific judicial establishing a system that would guarantee remedy for the protection of constitutional not only elections but also all the other es- rights38—all of which have required more sential elements of democracy, as were later judicial independence and autonomy. The set forth in the Inter-American Democratic reforms have significantly transformed the Charter enacted by the general assembly system of checks and balances regulating the of the Organization of American States on traditional powers in those states. There were September 11, 2001. These elements include demands to institute similar reforms in Ven- “the respect for human rights and funda- ezuela in the late 1990s, which would have mental freedoms, the access to power and its required a transformation of the balance and exercise subject to the rule of law, the mak- counterbalance among the traditional state ing of periodic, free and fair elections based powers; accomplishing these reforms should on universal and secret vote as an expression have been the purpose of the constitution- of the sovereignty of the people, the plural making process of 1999. regime of parties and political organizations There was a particular need for reform in and the separation and independence of the ©Venezuela. Copyright Although the Venezuelan by system, the public Endowment powers” (Article 3). of like other Latin American systems, has been characterized by presidentialism, it was mod- eratedthe by aUnited series of parliamentary States controls The Institute Process and Its Deformation of Peace on the executive. Paradoxically, the crisis of the Venezuelan system stemmed not from The Choice of a National Constituent Assembly excessive presidentialism, but from excessive Although the call for a constituent assembly parliamentarism, which took the form of a materialized in 1999, the demand for such a monopolistic control of power by the po- body as a vehicle of conciliation or political litical parties.39 Criticisms of this control in reconstruction had actually arisen earlier: It the late 1990s focused in particular on the had been proposed before and in the after- congress’s appointments of the heads of the math of the two attempted military coups of nonelected organs of public power—the Su- 1992,42 which had been carried out, among preme Court, judicial council, general con- others, by Chavez, then a lieutenant-colonel. troller of the republic, general prosecutor of The subject was publicly discussed from the republic, and electoral supreme council. 1992 on,43 but the leaders of the main politi- Blatant partisanship was shown in these ap- cal parties failed to appreciate the magnitude Framing the State in Times of Transition 511

of the political crisis, and instead of attempt- to call an assembly, but about the way to do ing to democratize institutions, they tried to it.47 The question was whether the election maintain the status quo. This response dis- of the assembly required a previous consti- credited the leaders and their political par- tutional amendment or whether the concept ties, creating a leadership vacuum in a re- of popular sovereignty justified the election gime that had been previously characterized of an assembly in the absence of preexist- by the hegemony of the political parties and ing constitutional authority. In short, it was their leaders. a conflict between constitutional supremacy In the middle of the political crisis, in 1998, and popular sovereignty.48 Chavez as a presidential candidate raised the In hindsight, considerations of rule of issue of the calling of a constit­uent assembly, law should have resolved the debate. Viewed only a few years after criminal charges against from this perspective, there is no doubt that him stemming from his 1992 attempted a constitutional amendment was required. It military coup were withdrawn. The proposal was the only way that the issue could have was disputed by some of the traditional po- been resolved without violating the text of litical parties and rejected by others; all poli- the existing constitution.49 On the contrary, tical elements rejected the idea that the con- violating the constitution for a constitution- gress elected in December of 1998 could take making process, giving preference to the the lead in the constitution-making process.44 supposed will of the people (popular sover- Consequently, the calling of the assembly eignty) over the rule of law (constitutional became Chavez’s exclusive project45 and re- supremacy), always leaves an indelible im- mained so after he was elected president in print of political legitimacy doubts, which December 1998, with an overwhelming ma- eventually can serve as an excuse to revert jority of 60 percent of the cast votes. How- the situation.50 ever, the call for a constituent assembly posed However, buoyed by his popularity of the a seemingly insurmountable constitutional moment, the president-elect publicly pres- problem: The text of the 1961 constitution sured the Supreme Court to decide the ques- did not provide for the institution of such an tion. Members of civil society had brought assembly as a mechanism of constitutional the issue before the court through a request © Copyrightreform. That text set out only by two procedures the Endowmentfor interpretation, which was available of under for revising the constitution, one that would the statute governing the court. On January apply in the case of a simple amendment, 19, 1999, almost two weeks before the presi- theand anotherUnited that would applyStates in the case of Institutedent took office, theof court Peace issued two deci- a larger “general reform.”46 Both procedures sions that failed to resolve the issue in an ex- required the vote of both houses of congress, press manner.51 The decisions acknowledged with additional approval by popular referen- the possibility of calling for a consultative dum or by the majority of the states’ assem- referendum to seek popular opinion regard- blies, without any provision for the creation ing the election of a constituent assembly of a separate constituent assembly. and presented a theoretical summary of the constitutional doctrine of constituent power. However, they said nothing about whether Legitimacy and the Rule of Law a constitutional amendment was required,52 In December 1998 and January 1999, after which was the main purpose of the request Chavez’s election and due to his commitment for interpretation. to the constituent assembly process, the po- That decision emboldened the president, litical debate was not about whether or not in his first official act after assuming office 512 Allan R. Brewer-Carías

on February 2, 1999,53 to issue a decree or- The Electoral Rule dering a consultative referendum without Despite the Supreme Court’s rulings and constitutional authorization, in which he in the absence of any political negotiations proposed to ask the people to authorize him, among the various sectors of society, the and him alone, not only to call the constit­ president proceeded unilaterally with the uent assembly but also to define its composi- consultative referendum on the calling of a tion, procedure, mission, and duration. Thus, constituent assembly on April 25, 1999. In he purported to hold a referendum on an as- a voting process in which only 38.7 percent sembly in which people would vote blindly of eligible voters cast their ballots—62.2 without knowing the procedure for its elec- percent of eligible voters did not turn out to tion, its composition, or the nature or dura- vote—the votes in favor obtained 81.9 per- tion of its mission. cent of the vote and votes against captured It is hardly surprising that the constitu- 18.1 percent.59 The approved proposal pro- tionality of Chavez’s decree was challenged vided for the election of a 131-member con- 54 before the Supreme Court, which ruled in stituent assembly: 104 members to be elected a series of judicial review decisions that the in 24 regional constituencies corresponding manner in which the president had acted in to the political subdivisions of the territory calling for the referendum on the assembly (states and the federal district); 24 members 55 was unconstitutional. It also declared that to be elected in a national constituency; and the composition, procedure, mission, and three members representing the Indian peo- duration of the assembly would have to be ples, who comprise a very small portion of submitted to the people. It further ruled the Venezuelan population. that there was no authority under the 1961 The referendum set up an electoral system constitution to endow an assembly with in which candidates were to run individually. 56 “original” constituent power, as the presi- The 104 regional constituency seats were al- dent’s proposal had purported to do. lotted according to the population of each The members of the Supreme Court state and the federal district. A list of all the had been elected years before by the party- candidates in each regional constituency was ­controlled congress, and it was that same placed on the ballot in each constituency, and ©court Copyright which, under tremendous by political the the votersEndowment had the right to vote for the numof- pressure from president-elect Chavez, issued ber of candidates on their constituency’s list the aforementioned ambiguous decision of corresponding to the number of seats allotted Januarythe 1999, United by which it allowed, States without to Institutetheir constituency. The ofelected Peace candidates expressly deciding it, the possibility of the corresponding to the number of seats allot- election of a constituent assembly. After ted were those receiving the highest number having freed the political constituent forces of votes. Voting proceeded in the same way of society as a means for participation, when on the national level for the 24 seats allotted, the Supreme Court tried to control them by except that the voters were only allowed to ruling that the assembly to be elected had choose 10 candidates from the list of those to observe and act according to the 1961 who were running. constitution,57 it was too late to achieve that The electoral system had no precedent goal. After its election in July 1999, the as- in previous elections in Venezuela. It really sembly crushed all the constituted powers, amounted to a ruse by Chavez and his fol- including the Supreme Court itself, violating lowers to assure their absolute control of the the 1961 constitution then in force.58 constituent assembly. In a campaign financed, Framing the State in Times of Transition 513

among others, as it was later known, by Ven- political parties were excluded. As men- ezuelan insurance companies and foreign tioned, only one of the members out of 131 banks,60 the president appeared personally in belonged to the traditional parties (one re- every state of the country proposing his list gional member), and four others were elected of candidates to be elected in each constit­ independently opposing the president.62 To- uency. On the national level, he proposed gether, they instinctively became the opposi- only 20 candidates for the 24 seats allotted; tion group in the assembly. dividing the country in two, he proposed a A constituent assembly formed by a ma- list of 10 candidates to the voters of the east- jority of that nature was not a valid instru- ern states of the country and a separate list ment for dialogue, political conciliation, or of 10 to the voters of the western states. This negotiation. It really was a political instru- was rather unusual in Venezuelan political ment to impose the ideas of a dominating tradition. After more than a hundred years group on the rest of society, totally excluding of a nonreelection constitutional rule, Ven- other groups. ezuelans were not used to having presidents directly involved in electoral campaigns, and any governmental involvement in elections Seizure of Constituted Powers had been considered illegitimate. Before the election of the constituent as- The election was carried out on July 25, sembly, not only Chavez but all the repre- 1999. Only 46.3 percent of eligible voters sentatives to the national congress had been cast their ballots; 53.7 percent of eligible elected in December 1998, as per the provi- voters did not turn out to vote.61 The candi- sions of the 1961 constitution. The governors dates that the president supported obtained of the twenty-three states, the representa- 65.8 percent of the votes cast, but the elec- tives of the state legislative assemblies, and tion resulted in control by his followers of 94 the mayors and members of the municipal percent of the seats in the constituent assem- councils of the 338 municipalities also had bly. All the president’s supported candidates been elected in November 1998. That is to except one were elected, for a total of 123. say, all the heads of the public powers set Of the 104 candidates elected at the regional forth in the constitution had been popu- © Copyright(state) level, only one belonged by to the the tradi- Endowmentlarly elected before the constitution-making of tional parties (AD), and of the 24 candidates process of 1999 began. In addition, the non- elected at the national constituency, only 4 elected heads of the organs of state, such as theindependent United candidates States who opposed the Institutethe judges of the Supreme of PeaceCourt, the gen- president were elected without his support, eral prosecutor of the republic, the general perhaps because the president only proposed controller of the republic, and the members 20 candidates at the national level out of of the supreme electoral council, had been the 24 to be elected. The three elected In- appointed by the national congress, again in dian representatives were all followers of the accordance with the 1961 constitution. president and his party. By the time the constituent assembly was As a result of the electoral scheme, in- elected on July 25, 1999, the constituted stead of contributing to democratic plural- public powers elected and appointed only ism, the election established a constituent months before were functioning in parallel, assembly totally controlled by the very newly with different missions. The constituent -as established government party and by the sembly was elected, according to the consul- president’s followers, in which all traditional tative referendum of April 1999 and to the 514 Allan R. Brewer-Carías

Supreme Court’s interpretation, to design All the above actions were challenged be- the reform of the state and establish a new fore the Supreme Court, but in a decision of legal framework institutionalizing a social October 14, 1999, in contrast with its ruling and participative democracy, which was to in its earlier decision, the court upheld their be submitted to popular approval in a final constitutionality, recognizing the assembly as referendum. It was not elected to govern or a supraconstitutional power.70 This implied to substitute itself for or interfere with the the attribution to the assembly of sovereign constituted powers. Moreover, as the Su- power, which it did not have, because the preme Court had declared, it had no original only sovereign power in a constitutional state constituent authority.63 However, in its first is the people. However, the implication was decision—adopting its own statute govern- the only way to justify the otherwise uncon- ing its functioning—the constituent assem- stitutional intervention of the constituted bly declared itself as “an original constituent branches of governments, a confusion that power,” granting itself the authority to “limit was expressly pointed out by various mag- or abolish the power of the organs of state” istrates’ dissenting votes.71 In issuing its de- and setting forth that “all the organs of the cision, the court actually gave itself its own Public Power are subjected to the Constitu- death sentence.72 ent National Assembly” and are “obliged to The Supreme Court did not rule consis- comply with the juridical acts.”64 In short, tently with its previous decisions relating to the constituent assembly declared itself a the constituent assembly, even the ambigu- state superpower, assuming powers that even ous decision. The political pressure exercised the referendum of April 1999 had failed to upon it provoked this change, and the Su- grant. In this way, the constituent assembly, preme Court not only adopted a ruling in which functioned between July 1999 and support of the constituent assembly’s inter- January 2000, usurped public power, violated vention in the judiciary but also appointed the 1961 constitution, and, in sum, accom- one of its magistrates as a member of the plished a coup d’état.65 commission of judicial emergency. In this During the first months of the assem- situation, only the president of the Supreme bly’s functioning, from August to September Court resigned.73 The others, by action or ©1999, Copyright instead of conciliating and by forming the omission, Endowment submitted themselves to the ofnew a new political pact for society, it usurped power, but only for two months, until almost the role of the constituted powers elected all were sacked by the same assembly, using inthe December United 1998, which were States functioning its Institute supraconstitutional power of to replacePeace the according to the 1961 constitution still in court.74 force. In August 1999, the assembly decreed As a result, the initial period of the func- the reorganization of all the public powers— tioning of the constituent assembly was a that is, the three branches of government.66 period of confrontation and political conflict It encroached upon the judicial branch by between the public power and the various creating a commission of judicial emergency political sectors of the country. The constit­ to intervene in judicial matters, to the detri- uent process, in this initial phase, was not a ment of the autonomy and independence of vehicle for dialogue and consolidating peace existing judges.67 It dissolved both the sen- or an instrument for avoiding conflict. On ates and the chambers of representatives of the contrary, it was a mechanism for con- the national congress and the legislative as- frontation, crushing all opposition or dis- semblies of the states.68 Finally, it suspended sidence. The constituent assembly was thus municipal elections.69 subject to exclusive domination by one new Framing the State in Times of Transition 515

political party—Movimiento V República ted to the assembly, one by a tiny left-wing (MVR)—which was the party of the govern- party and another by a non-governmental ment, answering to the president. In this way, organization (NGO) named Primero Jus- the constitution-making process was used to ticia, which in 2002 became a center-right abolish the political class and parties that had political party. Neither of these were adopted dominated the scene in previous decades. as drafts for the discussions, and due to their origins, they had no particular influence in the drafting commissions. The Drafting Phase: Haste and Exclusion After two months of functioning, the con- After the constituted powers had been ei- stituent assembly began the process of elabo- ther encroached upon or entirely usurped, rating a draft by appointing twenty commis- the constituent assembly entered its second sions that dealt with the essential subjects phase of work in September and October of any constitution. Each commission was 1999. This involved the elaboration of the charged with coming up with a proposed text of a draft constitution. The extreme brev- draft for its respective subject area. This all ity of this phase did not allow for any real occurred during only a few days, between public discussion or popular participation. September 2 and September 28, 1999. Dur- The assembly rejected the method adopted ing this very short period, each commission in other constitutional processes whereby a acted in an isolated manner, consulting only broadly representative constitutional com- briefly with groups the commission consid- mission elaborates a draft that is later pre- ered appropriate.77 sented in a plenary session.75 Once the assembly had usurped all public Just before Chavez took office, he had power, the president urged it to complete the informally created a constitutional council constitution drafting quickly, to end the po- composed of independent political figures, litical instability provoked by the constit­ but that council actually had devoted its uent process and use the new constitutional time to the issues surrounding the election framework to relegitimize the public powers of the assembly. It never worked to develop through new elections. The timetable to fin- a coherent constitutional draft, nor were its ish the drafting of the constitution was not © Copyrightproceedings public or participative. by the It held Endowmentestablished by the referendum of Aprilof 1999, no public meetings and met only with the nor by the constituent assembly, but by its president in the weeks before and after the board of directors in response to presidential theinstallation United of the Chavez States government. Institutepressure. of Peace Thus, the constituent assembly began to By the end of September 1999, the twenty work collectively without an initial draft. commissions sent their drafts to an addi- The president did submit to the assembly a tional constitutional commission of the con- document prepared with the assistance of stituent assembly, in charge of integrating the the constitutional council he had appointed. texts received. Collectively, the commissions’ Its intention was to propose ideas for the submissions included almost eight hundred new constitution, but its contents were not articles. The commission was charged with completely coherent.76 The assembly did not forming a single draft. Unfortunately, the adopt the document as the draft constitution, board of directors of the constituent assem- but the drafting commission used parts of it, bly gave the commission only two weeks to particularly because their members in general integrate all the isolated drafts. The hasty had no expertise in constitutional studies. process of elaborating the draft left no room Also, two constitution drafts were submit- for public discussion or for the participation 516 Allan R. Brewer-Carías

of civil society, whose input could have been Turnout was low: Only 44.3 percent of eli- incorporated into the discussions in plenary gible voters cast their votes (57.7 percent of sessions.78 eligible voters did not turn out to vote), with The draft that the constitutional commis- 71.8 percent voting for the constitution and sion submitted to the constituent assembly 28.2 percent against it.84 on October 18 turned out to be very unsat- However, the text approved did not con- isfactory, as it was an aggregate or catalogue form to the operational language of the con- of wishes, petitions, and good intentions in- sultative referendum of April 1999. It failed tegrated into an excessively large text.79 The to provide the new democratic and pluralistic draft followed many of the provisions of the vision the society required, nor did it define 1961 constitution, with the addition of some the fundamental principles required to re- portions of the president’s proposed docu- organize the country politically or create a ment. Some foreign constitutional provisions, decentralized state based on participative de- particularly copied from the Colombian and mocracy. Despite some good intentions and Spanish constitutions,80 were included in the brief attempts at public education, the hasti- draft constitutional text, and part of the text ness of the process rendered any effective of the American Convention on Human public and political participation impossible. Rights enriched the draft as well. Neverthe- One of the twenty commissions of the con- less, in the constituent assembly’s process in stituent assembly was a participatory com- general, no particular publicly known role was mission, but it was totally controlled by the played by foreign experts81 or governments, president’s followers, who developed explan- or by international or regional organizations. atory activities related to the drafting process There was no time for that possibility. and to the content of the other commissions’ The government imposed urgency in fin- drafts, including television programs. The ses- ishing the constitutional draft by requiring sions of the constituent assembly were also the constituent assembly to discuss and ap- directly broadcast on television, allowing the prove the draft in just one month, from Oc- public to follow the daily discussions. But the tober 19 to November 17, 1999, in order to great debate that should have taken place in submit the constitution for approval by refer- the assembly, on such issues as the monopoly ©endum Copyright in December 1999. This scheduleby exthe- of theEndowment political parties, decentralization ofand plains why only nineteen days were devoted the power of local government, the expan- to the first round of discussion sessions (Oc- sion of institutional protections of human toberthe 20 toUnited November 9) and Statesthree days to rights, Institute or the basic mission of of the Peace constitu- the second round (November 12 to 14), for a tion, never took place. There was no program total of twenty-two days. During the discus- of public education to encourage civil-society sions, this author intervened in all sessions, groups and NGOs to submit proposals. The proposing drafts and expressing his opinions only minorities that can be said to have been and dissenting votes,82 and with the other offered an opportunity to participate were in- opposition members of the assembly, led the digenous peoples, who, as mentioned above, political campaign for the vote against the were allowed three seats in the assembly. In constitution in the referendum because of its the end, public participation was reduced to authoritarian content.83 After one month of the votes cast by the public in the two ref- campaigning, the constitution was approved erendums, in which the majority of eligible in the referendum of December 15, 1999. voters did not vote. Framing the State in Times of Transition 517

The Prologue of the new constitution and in the absence The ramifications of the departure from the of any participation by civil society, directly rule of law entailed in the deformation of the appointed the members of the new supreme constitutional process, described above, can tribunal of justice, the members of the new be perceived not only in the events that im- national electoral council, the general pros- mediately followed but also in the crisis that ecutor of the republic, the defender of the continues to plague the political system. people, and the general controller of the In the week following the adoption of republic, ending the tenure of those previ- the constitution by popular referendum, ously appointed. The constituent assembly, the constituent assembly, without question- moreover, eliminated the congress defini- ing the duration of its authority, adopted a tively, and created and appointed a new leg- new decree establishing a transitory con- islative national commission that had not stitutional regime85 on December 20, 1999, been provided for in the 1999 constitution; which was not approved by popular referen- until the new national assembly was elected dum and which violated the newly adopted to supplant the dissolved congress, this new constitution, including its transitional pro- commission assumed legislative power. This visions.86 The 1999 constitution gives a very unconstitutional transitional regime was important participatory role to diverse sec- challenged on judicial review before the new tors of civil society in appointing the heads supreme judicial tribunal created as part of of the branches of government not elected the very same regime. Deciding in its own by universal vote—the judges of the supreme cause, the tribunal upheld the transitional tribunal of justice, the general prosecutor of regime’s constitutionality, justifying it on the the republic, the general controller of the re- basis of the constituent assembly’s supracon- 87 public, the defender of the people, and the stitutional powers. members of the national electoral council Once the new national assembly was (Articles 264, 279, 295). The proposal for the elected in August 2000, it adopted a special 88 appointments of such officials by the legisla- statute that granted to it almost the same ap- tive body was due to be submitted by various pointment powers that the dissolved congress nominating committees, the membership of had held and that the constituent assembly © Copyrightwhich would include representatives by theof civil Endowmenthad exercised unconstitutionally duringof the society. Under the terms of the new consti- transitional period: the power to appoint the tution, the national assembly was to appoint judges of the supreme tribunal of justice, thepersons United to these posts only States on the basis of Institutethe general prosecutor of of thePeace republic, the ­ proposals submitted by the nominating com- general controller of the republic, the de- mittees. This innovation in the constitution fender of the people, and the national electoral was an attempt to reduce the power of politi- council. Before the newly elected assembly cal parties in the national assembly, which, had a chance to make appointments under as described above, had been making those that special statute, an action challenging it appointments on the basis of patronage, in was brought before the transitional ­supreme the absence of transparency. tribunal by the people’s defender. Several As part of the unconstitutional transition other judicial actions were brought before set forth in the transitory constitutional re- the supreme tribunal against other actions gime decree, the constituent assembly rati- the transitional authorities had taken, but all fied the president in his post and, in violation of them were upheld as constitutional.89 518 Allan R. Brewer-Carías

Of all the decisions the supreme tribunal Process and Substance made, the response to the challenge of the The nceptco paper that forms the basis of people’s defender was perhaps the most star- this case study95 refers to two substantive is- tling, as it called upon the tribunal to be a sues that are relevant to the 1999 constitu- judge and party in its own cause. It was a tion. One of those substantive issues relates ruling on the constitutionality of its own ap- to the so-called immutable principles found pointment. Even though the supreme tribu- in many of the world’s modern constitutions: nal did not finally decide the action regard- Title I, Articles 1 and 3 of the 1961 consti- ing the constitutionality of the 2000 special tution established the independence of the statute, in a preliminary decision, it accepted state and the republican and democratic form that the newly elected national assembly was of government as immutable. Title I, Articles also exercising transitional constitutional au- 1 and 6 of the 1999 constitution retain that thority, and that the constitutional condi- feature. Apart from those very fundamental tions to be elected member of the supreme principles, no other immutable principles are tribunal did not apply to those signing the to be found expressis verbis in either text. preliminary decision, because they were not 90 Regarding the concept of the democratic to be “appointed” but to be “ratified.” form of government, however, the 1999 The subsequent statutes regulating the constitution, notwithstanding the immutable other constitutional branches of government provision, breaks the essential democratic also failed to respect the new constitution. principles of separation of powers and of ver- Instead of forming the constitutionally re- tical distribution of state powers,96 allowing quired nominating committees, integrating the development of a centralized and plebi- representatives of the various sectors of civil scitary system of government that is crush- society, the new national assembly estab- ing democracy. This inconsistency within the lished as vehicles for making appointments text is a direct consequence of the successful parliamentary commissions, which included effort by the president and his followers to only scattered participation by some mem- use the constitution-making process to con- 91 bers of civil society. solidate their power while at the same time But the transitional constitutional regime maintaining a surface appearance of adher- ©set forthCopyright in 1999 by the constituent by assembly the ence Endowment to democratic norms. of without popular approval fixed the general The centralized and plebiscitary system framework for the subsequent process of that the 1999 constitution establishes is concentrationthe United of powers and theStates consequent characterized, Institute first, by the ofmarginalization Peace of development of the current authoritarian the concept of political parties. In the consti- political regime. This regime, which unfor- tutional text itself, even the expression politi- tunately has enjoyed the support of the con- cal parties has disappeared. The 1999 consti- stitutional chamber of the supreme judicial tution forbids public (i.e., state) financing of tribunal, has taken shape in Venezuela as political organizations as well as the existence President Chavez envisaged when he came of party parliamentarian groups. It requires to power in 1998. Under it, the president conscience voting by the members of the leg- completely controls all branches of govern- islative assembly, forbidding any kind of vot- ment.92 In particular, control of the supreme ing instructions. Moreover, the constitution tribunal has led to a judiciary composed of in principle limits the possibility of parties more than 90 percent provisional or tempo- reaching agreement on the appointment of rary judges93; it is thus without any autonomy nonelected high public officials—such as jus- or independence.94 tices of the supreme tribunal, general comp- Framing the State in Times of Transition 519

troller, public prosecutor, and members of the no procedural safeguards—is contrary to electoral council—by requiring the previ- their independence, which has been corrobo- ously mentioned nominating committees to rated in recent political practice.100 be formed only on the basis of representation With the above provisions, the separa- of the various sectors of civic society. tion of powers framework has developed However, not one of the above prescrip- into a systemic concentration of powers, to- tions is really in force. The president of the tally controlled by the president through the republic is the acting head of his own party, abovementioned control he exercises over the which completely controls the national as- national assembly. In particular, the judiciary sembly. He is the director of his party par- has lost its independence, confirmed by the liamentary group, in which he has imposed fact that 90 percent of the judges are provi- rigid party discipline. Through these mecha- sional or temporary judges and thus, by defi- nisms, he has intervened in the designation nition, political dependents. The mastermind of the justices of the supreme tribunal and of this system of concentration of powers has the members of the national electoral council, been the supreme tribunal itself—particularly as well as the other nonelected high officials, its constitutional chamber, which by means disregarding the constitutional conception of successive constitutional interpretation of the nominating committees, which have has cleared all the violations of the consti- been converted effectively into extended par- tution committed by the other branches of liamentary commissions firmly controlled by government.101 the government’s party.97 Within this framework of concentration Another aspect of such plebiscitary de- of powers, even more alarming is the unprec- mocracy that has been built under the new edented exaggeration of the power of the constitution is the progressive concentration president that appears in the new constitu- of state powers, abrogating the principle of tion. As noted above, the excessive presiden- separation of powers among the branches of tialism that has characterized other Latin government. This has happened even though American systems has been traditionally the 1999 constitution explicitly set forth a checked in Venezuela by the powers of parlia- separation of powers among the executive, ment. Nonetheless, several provisions of the © Copyrightlegislative, judicial, citizen, 98by and electoralthe Endowmentnew constitution reverse that tradition. of First, branches of government. The constitution re- the president continues to be elected by a rel- peatedly specifies the independence of such ative majority, even though an absolute ma- thebranches United of government, butStates in practice, this Institutejority had long been ofrecommended Peace (Article independence is undermined by the same text 228).102 Second, the president’s term has been when it grants the national assembly (legisla- increased by five to six years (Article 230).103 tive branch) not only the power to appoint, Third, for the first time in a century, the pres- but to remove the justices of the supreme ju- ident could be elected for a consecutive addi- dicial tribunal, the members of the national tional term (Article 230),104 a provision that electoral council, the general comptroller, the in the 2009 “constitutional amendment” ap- public prosecutor, and the people’s defender, proved by referendum has been eliminated, in some cases by a simple majority vote.99 That allowing the possibility of the continuous the heads of the nonelected branches of gov- and indefinite reelection of the president. ernment can be removed from their offices Fourth, the national assembly may delegate by means of a parliamentary political vote— lawmaking power to the president, and there with no requirement of proof of misconduct is no limit on the powers that can be the sub- or other objective grounds for removal, and ject of such a delegation (Articles 203 and 520 Allan R. Brewer-Carías

236.8).105 Fifth, the president has the power level, progressively drowning any real possi- to dissolve the national assembly after three bility of political participation by the states votes of censure against the vice president of the federation and by the municipalities (Article 236, Section 21), who nonetheless (local governments).108 is conceived as an executive-branch official Some historical analysis will help to un- appointed by the president, with no parlia- derscore the incongruity. As noted above, mentary role. The parliamentary censure vote before the establishment of the constituent has a long tradition in Venezuela regarding assembly, there had been great public de- cabinet ministers, but the provision concern- mand for reforms that would bring about the ing the vice president was an invention of the decentralization of the federal state. These 1999 constitution. reforms were to build upon those initiated in Finally, and perhaps most significantly, the 1989, resulting in the direct election of state unprecedented increase in presidential power governors and the transfer of national pow- under the 1999 text has been accompanied ers to the states. However, in contrast to the by an equally unprecedented increase in the general declaration of policy found in the text power of the military. For the first time in of Article 158, the new constitution has re- the history of Venezuelan constitutionalism, sulted in major setbacks to the prior reforms. the new constitution exempts the military First, Article 159 eliminates the senate and from all civilian control apart from that of the bicameral nature of the legislature. This the president himself.106 The consequence has removes all possibility of equality among been the executive’s progressive intervention the federal states as a result of the unequal in the armed forces, as well as the creation of number of votes in the new single legislative militias (reserve forces)107 tending toward the chamber.109 Second, the national government creation effectively of a military party. has been given authority in all tax matters not The concept paper that guided prepara- expressly delegated to the states and munici- tion of this case study also refers to “certain palities (Article 156, Section 12). Third, no fundamental issues, such as the power and tax power has been given to the states; even status to be accorded to geographic subdi- their power over sales tax has been eliminated visions, and the centralization or devolution (Article 156, Section 12). Fourth, Article 167, ©of power,”Copyright and states that they “mayby be sothe Section Endowment 5 provides that the states shall ofonly integral to the construction of a stable peace have tax powers in matters expressly assigned as to be inseparable from an examination by national law. Fifth, with the new text, ofthe the constitution-making United process.”States This powers Institute that had previously of been Peacedesignated observation is particularly poignant in the as exclusive to states have been subjected to Venezuelan case, as this is another area in the regulations of national legislation (Article which the deformation of the constitutional 164). Sixth, even the exercise of concurrent process described in the previous sections powers has been made subject to the dictates has resulted in an alarming incongruity be- of national law. Seventh, the autonomy of the tween different portions of the text of the states has been seriously limited by the con- constitution. Article 4 of the 1999 Consti- stitutional provisions that allow the national tution defines the state as a “Federal decen- assembly to regulate by means of statute, ap- tralized State,” and Article 158 defines de- plicable throughout the federation by desig- centralization as a national policy, but other nation of the states’ general comptrollers as sections of the constitution make possible an well as the organization and functioning of entirely different reality. Those sections allow the states’ legislative councils or assemblies the centralization of powers at the national (Article 162).110 Framing the State in Times of Transition 521

Clearly, despite the language of Article in modern constitutionalism. Referenda can 158, the 1999 constitution has actually re- be useful instruments to perfect democracy, versed the previous decentralizing reforms but by themselves cannot satisfy the aim instead of building upon them.111 This criti- of participation. This can be understood by cal substantive development is a direct studying the 2002–04 process concerning consequence of the manipulation of the the Venezuelan presidential recall referen- constitution-making process by the presi- dum, which was converted into a ratification dent and his followers. referendum of a plebiscitary nature.117 A re- In particular, regarding the local govern- call referendum is a vote asking the people ments (municipalities), in practice and in if the mandate of an elected official must be the constitutional text, they continue to be revoked or not; it is not a vote asking if the very far from citizens’ reach, impeding any elected official must remain or not in office. kind of real political participation.112 Under But in the 2004 recall referendum, the Na- the centralized and antiparticipatory demo- tional Electoral Council, in giving the voting cratic system of the 1999 constitution, the results, converted it into a plebiscite ratifying instruments for direct democracy have been the president. deliberately confused with effective political The result of the implementation of the participation. That is why local governments 1999 constitution is that the Venezuelan de- are gradually being replaced by newly cre- mocracy has been transformed from a cen- ated communal councils (2006) and citizens tralized representative democracy of more assemblies, all directed from the center, and or less competitive and pluralist parties that without any electoral origin, creating the ap- alternated in government to a centralized pearance that the people are participating. 113 plebiscite democracy, in which effectively all In fact, to participate is to be part of, to apper- power is in the president’s hands, supported tain to, to be associated with, and that is only by the military and by what amounts to a possible for the citizen when political power one-party system. The plebiscite democracy is decentralized and close to them. Thus, par- system has created an illusion of popular ticipative democracy, apart from elections, is participation, particularly by means of the only possible when effective decentralization uncontrolled distribution of state oil income © Copyrightof power exists. That is why by only democrathe- Endowmentamong the poor through governmental of so- cies can be decentralized.114 Only with lo- cial programs that are not precisely tailored cal governments established throughout the to promoting investment and generating theterritory United of a country can Statesdemocracy be part Instituteemployment. of Peace of everyday life.115 Nonetheless, in 2006 the Without a doubt, the plebiscite democracy national assembly sanctioned the Commu- is less representative and participatory than nal Council Law, creating such councils as the traditional representative party democ- “participatory” institutions directly attached racy, which, notwithstanding all the warn- to the Office of the President of the Repub- ings that were raised,118 the traditional parties lic, and whose members are not elected by failed to preserve. All this is unfortunately popular vote, but appointed by Citizens As- contributing to the disappearance of democ- semblies controlled by the government and racy itself as a political system in Venezuela, the official party.116 which is much more than only elections and It is certain is that the goal of participation referendums, as has been made clear by the cannot be achieved only by inserting instru- 2001 Inter-American Democratic Charter— ments of direct democracy into a representa- a development that was intended to be fur- tive democratic framework, as has occurred thered by the November 2, 2007, constitu- 522 Allan R. Brewer-Carías

tional reforms, sanctioned by the national from the president’s speech at the presenta- assembly but nonetheless rejected by popular tion of the draft constitutional reforms,120 in vote in the December 2, 2007, referendum. which he said that the reforms’ main objec- tive is “the construction of a Bolivarian and Socialist Venezuela.”121 This was intended, as Conclusion he explained, to sow “socialism in the politi- The Venezuelan constitution-making process cal and economic realms,”122 which the 1999 of 1999 failed to achieve its stated mission constitution did not do. When the document regarding political conciliation and improv- was sanctioned, said the president, ing democracy. Contrary to the democratic We were not projecting the road of socialism. . . . principle, instead of offering the participa- Just as candidate Hugo Chavez repeated a mil- tion sought by so many, the process resulted lion times in 1998, “Let us go to a Constit-­ in the imposition of the will of one political uent [Assembly],” so candidate President Hugo group upon the others and upon the rest of Chavez said [in 2006]: “Let us go to Socialism” and, thus, everyone who voted for candidate the population. As an instrument to develop Chavez then, voted to go to socialism.123 a constitutional authoritarian government, it can be considered a success. Undoubtedly, Thus, the draft constitutional reforms the democratically elected constituent as- that Chavez presented, according to what sembly conducted a coup d’état against the he said in his speech, propose the construc- 1961 constitutional regime, facilitated the tion of “Bolivarian Socialism, Venezuelan complete takeover of all the branches of gov- Socialism, our Socialism, and our socialist 124 ernment by one political group, crushing the model.” It is a socialism the “basic and in- other political parties, and drafted and ap- divisible nucleus” of which is “the commu- proved a constitution with an authoritarian nity,” one “where common citizens shall have the power to construct their own geography framework that has allowed the installment 125 of a government that has concentrated and and their own history.” This was all based on the premise that “real democracy is only centralized all state powers. 126 As the constitution did not result from possible in socialism.” However, the sup- ©a political Copyright pact among all the main by political the posed Endowment “democracy” referred to was one whichof factions of the country, but rather from one “is not born of suffrage or from any elec- group’s imposition upon all the others, the tion, but rather is born from the condition of newthe document United is likely to endure States for as long organized Institute human groups asof the basePeace of the as those who imposed it remain in control. population,” as the president suggests in his True reforms of the political system, founded proposed reform to Article 136. Of course, in the democratization and political decen- this democracy is not democracy; there can tralization of the country, remain as pending be no democracy without the election of tasks that the constituent assembly of 1999 representatives. could not accomplish. The president in his speech summarized On August 15, 2007, the president pre- all the proposed reforms in this manner: sented to the national assembly a constitu- on the political ground, deepen popular Bolivar- tional reform proposal intending to consoli- ian democracy; on the economic ground, create date a socialist, centralized, and militaristic better conditions to sow and construct a social- ist productive economic model, our model; the police state, minimizing democracy and lim- same in the political field: socialist democracy; 119 iting freedoms and liberties. The main on the economic, the productive socialist model; purpose of the proposals could be understood in the field of public administration: incorporate Framing the State in Times of Transition 523

new forms in order to lighten the load, to leave 2001); and Alfonso Rivas Quintero, Derecho Consti- behind bureaucracy, corruption, and administra- tucional (Valencia: Paredes Editores, 2002). tive inefficiency, which are heavy burdens of the 2. See the text of all this author’s dissenting past still upon us like weights, in the political, and negative votes in Brewer-Carías, Debate consti- 127 economic and social areas. tuyente (Aportes a la Asamblea Nacional Constituyente), vol. 3, October 18–November 30, 1999, Fundación All the 2007 constitutional reform pro- de Derecho Público, Caracas, pp. 107–308ff. posals were sanctioned by the national as- 3. See the proposal of this author in this sembly on November 2, 2007, and rejected matter in Brewer-Carías, Debate constituyente in the December 2, 2007, popular referen- (Aportes a la Asamblea Nacional Constituyente), vol. 2, dum, increasing the extreme polarization September 9–October 17, 1999, pp. 76–155ff. the country has experienced since 1999. The 4. See Brewer-Carías, “Razones para ‘No’ president and the national assembly, none- firmar el proyecto” and “Razones para el voto ‘No’ en el Referéndum sobre la Constitución,” in Debate theless, announced that the rejected reforms constituyente, vol. 3, pp. 311ff. were going to be implemented through leg- 5. See this author’s critical comments regard- islation which, although in an unconstitu- ing the new constitution expressed immediately af- tional way, has occurred.128 ter its approval, in “Reflexiones críticas y visión gen- No one should discard the possibility that eral de la Constitución de 1999,” inaugural lecture in the future, there will be a new demand on the Curso de Actualización en Derecho Con- stitucional, Aula Magna de la Universidad Católica for a new constituent assembly—a mecha- Andrés Bello, Caracas, February 2, 2000; see also nism that the president and his supporters “La Constitución de 1999 y la reforma política,” discarded in 2007—to be given the same Colegio de Abogados del Distrito Federal, Caracas, challenge of serving as an agent of political February 9, 2000; “The Constitutional Reform in conciliation and democratic reform. When Venezuela and the 1999 Constitution,” seminar on Challenges to Fragile Democracies in the Ameri- the time comes, to succeed where the 1999 cas: Legitimacy and Accountability, organized by constituent assembly failed and reverse the the Faculty of Law, University of Texas, Austin, tendency toward which the 2007 constitu- February 25, 2000; “Reflexiones críticas sobre la tional reforms were headed, in conceiving Constitución de 1999,” seminario internacional: El and electing such a body, Venezuela must constitucionalismo latinoamericano del siglo XXI bear in mind that it is always better to con- en el marco del LXXXIII aniversario de la promul- © Copyright by the Endowmentgación de la Constitución Política de losof Estados ciliate and achieve agreements before pass- Unidos mexicanos, Cámara de Diputados e Insti- ing through the pain of civil strife than to tuto de Investigaciones Jurídicas UNAM, México, thearrive United at the same agreements States by means of InstituteJanuary 31, 2000; “La nuevaof Constitución Peace de Ven- a postconfrontation armistice, which never ezuela del 2000,” Centro Internationale per lo Stu- eliminates the wounds of civil conflict. dio del Diritto Comparato, Facoltà di Giurispru- denza, Facoltà de Scienze Politiche, Universita’degli Studi di Urbino, Urbino, Italia, March 3, 2000; and “Apreciación general sobre la Constitución de Notes 1999,” Ciclo de Conferencias sobre la Constitución 1. See Allan R. Brewer-Carías, La Consti- de 1999, Academia de Ciencias Políticas y Sociales, tución de 1999 (Caracas: Editorial Jurídica Venezo- Caracas, May 11, 2000. The text of these papers was lana, 2000); and La Constitución de 1999: Derecho published, respectively, in Diego Valadés, Miguel Constitucional Venezolano, 2 vols. (Caracas: Edito- Carbonell, ed., Constitucionalismo Iberoamericano del rial Jurídica Venezolana, 2004). See also Hildegard siglo XXI, Cámara de Diputados, LVII Legislatura, Rondón de Sansó, Análisis de la Constitución venezo- Universidad Nacional Autónoma de México, México lana de 1999 (Caracas: Editorial Ex Libris, 2001); 2000, pp. 171–93; Revista de Derecho Público, no. Ricardo Combellas, Derecho Constitucional: una in- 81 ( January–March 2000), pp. 7–21; Revista Fac- troducción al estudio de la Constitución de la República ultad de Derecho, Derechos y Valores, vol. 3, no. 5 ( July Bolivariana de Venezuela (Caracas: McGraw Hill, 2000), pp. 9–26; and in La Constitución de 1999, 524 Allan R. Brewer-Carías

Biblioteca de la Academia de Ciencias Políticas y 2007), pp. 13–74; and in Brewer-Carías, Estudios Sociales, Caracas 2000, pp. 63–88. sobre el Estado Constitucional 2005–2006 (Caracas: 6. Regarding the February 4, 1992, coup Editorial Jurídica Venezolana, 2007), pp. 79ff. d’état attempt, see H. Sonntag and T. Maingón, 11. Brewer-Carías, Allan R., “Venezula 2009 Venezuela: 4-F 1992: Un análisis socio-político (Cara- Referendum on Continuous Reelection: Constitu- cas: Editorial Nueva Sociedad, 1992); and Gustavo tional Implications.” Paper written for panel discus- Tarre Briceño, 4 de febrero–El espejo roto (Caracas: sion on Venezuela Referendum: Public Opinion, Editorial Panapo, 1994). Economic Impact and Constitutional Implications 7. In the 1998 presidential election, Hugo (panelists: Luis Vicente León, Alejandro Grisanti, Chávez Frías obtained the 56.20 percent of the cast Allan R. Brewer-Carías; Moderator: Christo- votes, followed by Henrique Salas Römer, who ob- pher Sabatini), Americas Society/Council of the tained 39.99 percent of the votes. Approximately, Americas. New York, February 9, 2009. Available at 35 percent of the eligible voters did not turn out www.allanbrewercarias.com/Content/449725d9- to vote. See the references in El Universal, Decem- f1cb-474b-8ab2-41efb849fea2/Content/I,%201, ber 11, 1998, p. 1-1. %20984.%20VENEZUELA%202009%20 8. In the 2006 presidential election, Hugo REFERENDUM%20ON%20CONTINUOUS Chávez Frías obtained 62.84 percent of the cast %20REELECTION.%20New%20York%20coa. votes, and the opposition candidate, Manuel Ro- pdf (accessed July 18, 2009). sales, obtained 36.9 percent of the votes. Approxi- 12. See Brewer-Carías, La Constitución y sus mately 25.3 percent of the eligible voters did not enmiendas (Caracas: Editorial Jurídica Venezolana, turn to vote. 1991); and Instituciones políticas y constitucionales, vol. 1 (Evolución histórica del Estado), (San Cristóbal- 9. See Proyecto de reforma constitucional: Caracas: Universidad Católica del Táchira and Edi- Elaborado por el ciudadano Presidente de la República torial Jurídica Venezolana, 1996), pp. 455ff. Bolivariana de Venezuela, Hugo Chávez Frías (Ca- racas: Editorial Atenea, 2007). See the comments 13. See the text of all the previous constitu- on the draft in Brewer-Carías, Hacia la consoli- tions (1811–1961) in Brewer-Carías, Las Con- dación de un Estado Socialista, centralizado, policial stituciones de Venezuela (Caracas: Biblioteca de la y militarista: Comentarios sobre el alcance y sentido de Academia de Ciencias Políticas y Sociales, 1997). la Reforma Constitucional 2007 (Caracas: Editorial Regarding the constitutional history behind those texts, see this author’s “Estudio Preliminar” in the Jurídica Venezolana, 2007); and La Reforma Con- stitucional de 2007 (Sancionada inconstitucionalmente same book, pp. 11–256. por la Asamblea Nacional el 2 de Noviembre de 2007) 14. See Elena Plaza and Ricardo Combillas, (Caracas: Editorial Jurídica Venezolana, 2007). The eds., Procesos constituyentes y reformas constitucionales ©reform Copyright was sanctioned by the national assemblyby onthe en la Endowmenthistoria de Venezuela; 1811–1999, vols. 1 andof 2 November 2, 2007, and was voted on in the referen- (Caracas: Universidad Central de Venezuela, 2005); dum of December 2, 2007, where a majority of the Brewer-Carías, “Las asambleas constituyentes en la peoplethe rejected United it. The votes against States comprised 51 historia Institute de Venezuela,” El Universal, of SeptemberPeace 8, percent (4.5 million) of the cast votes (9.2 million); 1998, pp. 1–5; and Brewer-Carías, Historia Con- approximately 44.11 percent of the eligible voters stitucional de Venezuela, Caracas: Editorial Alfa, 2 did not turn out to vote. vols., 2008). 10. This is now expressly set forth in the 1999 15. See Brewer-Carías, “El inicio del proceso constitution (art. 347). See Brewer-Carías, “El au- constituyente en Ecuador en 2007 y las lecciones toritarismo establecido en fraude a la Constitución de la experiencia venezolana de 1999,” in Estudios y a la democracia y su formalización en Venezu- sobre el Estado Constitucional 2005–2006 (Caracas: ela mediante la reforma constitucional. (De cómo Editorial Jurídica Venezolana, 2007), pp. 766ff. en un país democrático se ha utilizado el sistema 16. See Brewer-Carías, “Reflexiones sobre la eleccionario para minar la democracia y establecer crisis del sistema político, sus salidas democráti- un régimen autoritario de supuesta ‘dictadura de la cas y la convocatoria a una Constituyente,” in Los democracia’ que se pretende reg-ularizar mediante candidatos presidenciales ante la academia, Ciclo la reforma constitucional),” in Temas constitucio- de Exposiciones, Biblioteca de la Academia de nales: Planteamientos ante una Reforma (Caracas: Ciencias Políticas y Sociales, August 10–18, 1998, Fundación de Estudios de Derecho Administrativo, Caracas, pp. 9–66; also published in Ciencias de Framing the State in Times of Transition 525

Gobierno, no. 4 ( July–December 1998), Go- en América (Caracas: Editorial Jurídica Venezolana, bernación del Estado Zulia, Instituto Zuliano 2001), pp. 243–53. de Estudios Políticos Económicos y Sociales 25. Regarding the Punto Fijo Pact, the ori- (IZEPES), Maracaibo, Edo. Zulia, 1998, pp. 49­– gins of the 1961 constitution, and the political party 88; and in Brewer-Carías, Asamblea Constituyente y system, see Juan Carlos Rey, “El sistema de partidos ordenamiento constitucional (Caracas: Biblioteca de venezolano,” in Problemas socio políticos de América la Academia de Ciencias Políticas y Sociales, 1999), Latina (Caracas: Ateneo de Caracas, 1980), pp. 255, pp. 13­–77. 338; Brewer-Carías, Instituciones Políticas y Consti- 17. See Brewer-Carías, La crisis de las insti- tucionales, vol. 1, pp. 394ff.; Brewer-Carías,Las Con- tuciones: responsables y salidas, Cátedra Pío Tamayo, stituciones de Venezuela, p. 201ff.; and Brewer-Carías, Centro de Estudios de Historia Actual (mimeo) La Constitución y sus enmiendas, p. 13ff. The text of Facultad de Economía y Ciencias Sociales, Uni- the pact was published in El Nacional, January 27, versidad Central de Venezuela, Caracas, 1985; pub- 1998, p. D-2. lished in Revista del Centro de Estudios Superiores de 26. See Brewer-Carías, El Estado: Crisis y las Fuerzas Armadas de Cooperación, no. 11 (1985), reforma, pp. 7–89; and Brewer-Carías, El Estado pp. 57–83; and in Revista de la Facultad de Cien- Incomprendido: Reflexiones sobre el sistema político y cias Jurídicas y Políticas, no. 64 (1985), pp. 129–55. su reforma (Caracas: Editorial Jurídica Venezolana, See also Brewer-Carías, Instituciones políticas, vol 1, 1985). pp. 523–41. 27. See Brewer-Carías, “La reforma del 18. Regarding the democratic political pro­ sistema electoral,” in Revista Venezolana de Ciencias cess after 1958, see Brewer-Carías, Cambio poíitico Políticas, no. 1 (December 1987), pp. 55–75; Brewer- y reforma del Estado en Venezuela: Contribución al Carías, Ley Orgánica del Sufragio (Caracas: Edito- estudio sobre el Estado democrático y social de derecho rial Jurídica Venezolana, 1993); J.G. Molina and (Madrid: Editorial Tecnos, 1975). C. Pérez Baralt, “Venezuela ¿un nuevo sistema de 19. See Brewer-Carías, El Estado: Crisis y re- partidos? Las elecciones de 1993,” Cuestiones Políti- forma (Caracas: Biblioteca de la Academia de Cien- cas, no. 13 (1994), pp. 63–99. cias Políticas y Sociales, 1982); Problemas del Estado 28. See the references in El Universal, De- de partidos (Caracas: Editorial Jurídica Venezolana, cember 11, 1998, p. 1-1. 1988). 29. See Brewer-Carías, “Municipio, demo- 20. See the text of the decree in Gaceta Oficial cracia y participación: Aspectos de la crisis,” Revista no. 36.634, February 2, 1999, and its modification in Venezolana de Estudios Municipales, no. 11 (1988), Gaceta Oficial no. 36.658, March 10, 1999. See the pp. 13–30; and “Democracia municipal, descentral- criticisms of the decree as a “constitutional fraud” in ización y desarrollo local,” Revista Iberoamericana © CopyrightBrewer-Carías, Asamblea Constituyente, by pp. the229ff. Endowmentde Administración Pública, no. 11 ( July–December of 21. See the 1998 political discussion re- 2003), pp. 11–34. garding the necessarily inclusive character of the 30. See in this regard one of the author’s pro- theconstitution-making United process Statesproposed, in Brewer- Instituteposals to the 1999 constituent of assemblyPeace in Brewer- Carías, Asamblea Constituyente, pp. 38ff. Carías, Debate Constituyente, vol. 1, pp. 156ff. 22. See Allan R. Brewer-Carías, Golpe de 31. Regarding the Venezuelan Federation Estado y proceso constituyente en Venezuela (México: evolution, see Brewer-Carías, Instituciones Políticas Universidad Nacional Autónoma de México, 2002), y Constitucionales, vol. 1, pp. 351 and ss.; and vol. 2, pp. 181ff. pp. 394ff. 23. See the author’s dissenting votes in 32. See Brewer-Carías, “Ideas centrales sobre Brewer-Carías, Debate Constituyente, vols. 1 and 3, la organización el Estado en la Obra del Libertador pp. 17ff and 109ff. y sus Proyecciones Contemporáneas,” in Boletín de la 24. See Brewer-Carías, “El proceso consti- Academia de Ciencias Políticas y Sociales, nos. 95–96 tuyente y la fallida reforma del Estado en Venezu- (1984), pp. 137–51. ela,” in Estrategias y propuestas para la reforma del 33. See Allan R. Brewer-Carías, “El desarrollo Estado (México: Universidad Nacional Autónoma institucional del Estado Centralizado en Venezuela de México, 2001), pp. 25–48; also published in (1899–1935) y sus proyecciones contemporáneas,” Brewer-Carías, Reflexiones sobre el constitucionalismo en Revista de Estudios de la Vida Local y Autonómica, 526 Allan R. Brewer-Carías

nos. 227 and 228 (1985), pp. 487–514 and 695– a los derechos y garantías constitucionales: Una aproxi- 726; Instituciones Políticas y Constitucionales, vol. 1, mación comparativa (Caracas: Editorial Jurídica pp. 351ff.; and “La reforma política del Estado: La Venezolana, 1993); and in Instituciones Políticas y descentralización política,” in Brewer-Carías, Estu- Constitucionales, vol. 5. dios de Derecho Público (Labor en el Senado 1982), 39. See Brewer-Carías, Problemas del Estado vol. 1 (Caracas: Ediciones del Congreso Nacional, de Partidos (Caracas: Editorial Jurídica Venezolana, 1983), pp. 15–39. 1988), pp. 92ff. 34. See Brewer-Carías, Reflexiones sobre la 40. Ibid. Organización Territorial del Estado en Venezuela y 41. See the author’s proposal regarding the en la América Colonial (Caracas: Editorial Jurídica convening of the 1999 constituent assembly in Venezolana, 1997), pp. 108ff. Brewer-Carías, Asamblea Constituyente, pp. 56–60. 35. See Brewer-Carías, “Los problemas de 42. See, e.g., Frente Patriótico, Por una Asam- la federación centralizada en Venezuela,” Revista blea Constituyente para una nueva Venezuela (Cara- Ius et Praxis, no. 12 (1988), pp. 49–96; and “Bases cas: 1991). legislativas para la descentralización política de la Federación Centralizada (1990: el inicio de una 43. Regarding the initial 1992 proposals, see reforma),” in Leyes y Reglamentos para la Descen- Brewer-Carías, “La democracia venezolana ha tralización política de la Federación (Caracas: Edito- perdido legitimidad,” El Nacional, March 1, 1992, rial Jurídica Venezolana, 1994), pp. 7–53. See also p. D-2, published in Asamblea Constituyente, Brewer-Carías, Instituciones Políticas y Constitucio- pp. 30–34; Consejo Consultivo de la Presidencia de nales, vol. 2, pp. 394, ss. la República, Recomendaciones del Consejo Consultivo al Presidente de la República (Caracas: Presidencia de 36. See discussion of the 1993 last ef- la República, 1992), p. 15; Oswaldo Alvarez Paz, El forts to reinforce the decentralization process in Camino Constituyente (Maracaibo: Gobernación del ­Venezuela, in Informe sobre la descentralización en Estado Zulia, 1992); Ricardo Combellas, “Asamblea Venezuela 1994, Memoria del Dr. Allan R. Brewer- Carías, Ministro de Estado para la Descentral- Constituyente: Estudio jurídico-político” and Angel ización, Caracas 1994. Alvarez, “Análisis de la naturaleza de la crisis actual y la viabilidad política de la Asamblea Constituy- 37. See Pedro Guevara, Estado vs. Democ- ente,” in ­COPRE, Asamblea Constituyente: Salida racia (Caracas: Universidad Central de Venezuela, democrática a la crisis, Folletos para la Discusión no. Facultad de Ciencias Jurídicas y Políticas, 1997); 18, Caracas, 1992; R. Escovar Salom, “Necesidad de Miriam Kornblith, Venezuela en los 90: Crisis de la una Asamblea Nacional Constituyente,” en Cuader- Democracia (Caracas: Ediciones IESA, Universidad nos Nuevo Sur, no. 2–3 ( July–December 1992), pp. central de Venezuela, 2002); Brewer-Carías, Cinco 156–160; Frente Amplio Proconstituyente “¿Qué es siglos de historia y un país en crisis (Caracas: Aca- la Constituyente?” El Nacional, June 30, 1994; Her- ©demia Copyright de Ciencias Políticas y Sociales byy Comisión the Endowment of mánn Escarrá Malavé, Democracia, reforma constitu- Presidencial del V Centenario de Venezuela, 1998), cional y asamblea constituyente (Caracas: 1995). pp. 95–117; Brewer-Carías, “La crisis terminal del sistemathe político,” United in Una evaluación States a estos cuarenta Institute44. See this author’s comments of Peace on Novem- años de democracia, El Globo, November 24, 1997, ber 1998 in Brewer-Carías, Asamblea Constitu­yente, pp. 12–13; Brewer-Carías, “La crisis terminal del pp. 78–85. sistema político venezolano y el reto democrático 45. See his “Propuestas para transformar de la descentralización,” in Instituciones Políticas y Venezuela” in Hugo Chávez Frías, Una Revolución Constitucionales, vol. 3, pp. 655–78. See also Brewer- Democrática (Caracas: 1998), p. 7. Carías, “Presentación,” in Los Candidatos Presiden- 46. See Brewer-Carías, “Los procedimien- ciales ante la Academia, pp. 9­–66, and Brewer-Carías, tos de revisión constitucional en Venezuela,” in Asamblea Constituyente, pp. 15–85. I Procedimenti di revisione costituzionale nel Di- 38. See Brewer-Carías, Judicial Protection ritto Comparato, Atti del Convegno Internazion- of Human Rights in Latin America. A Comparative ale organizzato dalla Facoltà di Giurisprudenza di Constitutional Law study on the Latin American Urbino, April 23–24, 1997, Università Degli Studi Injunction for the Protection of Constitutional rights di Urbino, pubblicazioni della Facoltà di Giurispru- (“Amparo” Proceeding). Privately Printed for the Ex- denza e della Facoltá di Scienze Politiche, Urbino, clusive Use of Students at the Columbia University Italia, 1999, pp. 137–81; and in Boletín de la Aca- School of Law, New York, 2007, 383 pp.; El amparo demia de Ciencias Políticas y Sociales, no. 134 (1997), Framing the State in Times of Transition 527

pp. 169–222. See also Brewer-Carías, Asamblea dio: el proceso constituyente venezolano de 1999 (San Constituyente, pp. 84–149. Cristóbal: Universidad Católica del Táchira, 2000), 47. See the author’s 1998 proposal in Brewer- pp. 53ff.; Claudia Nikken,La Cour Suprême de Justice Carías, Asamblea Nacional Constituyente, pp. 56­– et la Con­stitution vénézuélienne du 23 Janvier 1961, 69; see the position in contrary sense of Carlos M. thèse docteur de l’Université Panthéon Assas (Paris Escarrá Malavé, Proceso político y constituyente: Pape- II), Paris, 2001, pp. 366ff. les constituyentes (Maracaibo: 1999), pp. 33ff. 53. See the text in Gaceta Oficial, no. 36.634, 48. See Brewer-Carías, “El desequilibrio en- February 2, 1999, and its modification in Gaceta tre soberanía popular y supremacía constitucional Oficial no. 36.658, March 10, 1999. See the com- y la salida constituyente en Venezuela en 1999,” in ments regarding the decree in Brewer-Carías, Golpe Revista Anuario Iberoamericano de Justicia Consti- de Estado, pp. 113ff.; and in Brewer-Carías, Asam- tucional, no. 3 (2000), pp. 31–56. See also Brewer- blea Constituyente, pp. 229ff. Carías, Asamblea Constituyente, pp. 152ff. 54. See the text of the challenging action 49. See Brewer-Carías, “Comentarios sobre la this author brought before the Supreme Court in inconstitucional de la convocatoria a Referéndum Brewer-Carías, Asamblea Constituyente, pp. 255– sobre una Asamblea Nacional Constituyente, efec- 321. Regarding the other challenging actions tuada por el Consejo Nacional Electoral en febrero brought before the Supreme Court, see Carlos M. de 1999,” in Revista Política y Gobierno, vol. 1, no. 1 Escarrá Malavé, Proceso político, exhibit 4. ( January–June 1999), pp. 29–92. See also Brewer- Carías, Asamblea Constituyente, pp. 229ff. 55. See the text of the 1999 Supreme Court decisions of March 18, March 23, April 13, 50. Among the authors who considered that June 3, June 17, and July 21 in Revista de Derecho the convening of the constituent assembly needed Público, nos. 77–80 (1999), pp. 73–110; and in a prior constitutional provision establishing it ­Brewer-Carías, Poder Constituyente Origina­rio, was Ricardo Combellas, who in 1998 was head of the Presidential Commission on State Re- pp. 169–98 and 223–51. See comments in ­Brewer- forms. See Combellas, ¿Qué es la Constituyente? Carías, “Comentarios sobre la inconstitucional Voz para el futuro de Venezuela (Caracas: Edito- convocatoria a referendo sobre una Asamblea Na- rial Panapo, 1998), p. 38. The next year, after cional Constituyente efectuada por el Consejo being appointed by President Chávez as a member Nacional Electoral en febrero de 1999,” Revista of the Presidential Commission for the Constitu- Política y Gobierno, vol. 1, no. 1 ( January–June 1999), tional Reform, he changed his opinion, admitting pp. 29–92; and in Brewer-Carías, Golpe de Estado, the possibility of electing the assembly even without pp. 160ff. constitutional support. See Combellas, Poder Con- 56. Venezuelan constitutional law distin- stituyente, presentación, Hugo Chávez Frías, Cara- guishes between derivative and original constit­uent © Copyrightcas 1999, pp. 189ff. In 1999, Combellas by wasthe elected Endowmentauthority, the latter being the unlimited of authority a member of the constituent assembly from the lists such an institution would have at the very moment supported by Chávez, but a few years later, he with- of a new state’s conception. The constitutional con- thedrew hisUnited support for the president, States becoming a critic Institutevention of the United Statesof would Peace be considered of his antidemocratic government. original in this sense. 51. See the texts in Revista de Derecho Púb­ ­lico, 57. In particular, see the 1999 Supreme Court no. 77–80 (1999), pp. 56–73; and in Brewer-Carías, decisions of April 13, June 17, and July 21, in Re- Poder Constituyente Originario y Asamblea Nacional vista de Derecho Público, nos. 77–80 (1999), pp. 85ff. Constituyente (Caracas: Editorial Jurídica Venezo- 58. See the references to all those decisions lana, 1999), pp. 25ff. in Brewer-Carías, Debate Constituyente, vol. 1, 52. See comments on the decisions in Brewer- pp. 11­–124. Carías, “La conficonfiguración guración judicial del pro ­cesoceso conscons-- tituyente o de cómo el guardián de la Constitución 59. See José E. Molina and Carmen Pérez abrió el camino para su violación y para su propia Baralt, “Procesos Electorales: Venezuela, abril, julio extinción,” in Revista de Derecho Público, nos. 77–80 y diciembre de 1999,” Boletín Electoral Latinoameri- (1999), pp. 453–514; Brewer-Carías, Asamblea cano, no. 22 (July–December 1999), pp. 61ff. Constituyente, pp. 152–228; Brewer-Carías, Golpe 60. For which a few high former officials of de Estado, pp. 65ff; Lolymar Hernández Camargo, the Banco Bilbao Vizcaya of Spain were criminally La Teoría del Poder Constituyente: Un caso de estu- indicted on Feb. 8, 2006, by the Juzgado Central 528 Allan R. Brewer-Carías

de Instrucción no. 5, Audiencia Nacional, Madrid vote in Brewer-Carías, Debate Constituyente, vol. 1, (Procedure no. 251/02-N). pp. 115–22. 61. Molina and Pérez Baralt, “Procesos Elec- 70. See the decision of October 14, 1999 torales,” pp. 61ff. in Revista de Derecho Público, no. 77–80 (1999), 62. Allan R. Brewer-Carías, Claudio Fermin, pp. 111–32. See the comments in Brewer-Carías, Alberto Franchesqui, and Jorge Olavarría. “La configuración judicial del proceso constituy- ente,” pp. 453ff. 63. See the decision of April 13, 1999, in Re- vista de Derecho Público, no. 77–80 (1999), pp. 85ff.; 71. Particularly by Magistrate Humberto J. and in Brewer-Carías, Poder Constituyente Origi- La Roche, who was the one who rendered the opin- ion of the court in its initial decision of January 19, nario, pp. 169–98, 223–51. 1999. See Brewer-Carías, “Los procedimientos de 64. See in Gaceta Constituyente (Diario de De- revisión constituciónal.” bates), Agosto–Septiembre 1999, session of August 3, 72. As predicted by the resigning president of 1999, no. 1, p. 4. See the author’s dissenting vote the Supreme Court. See the comments in Brewer- in Gaceta Constituyente (Diario de Debates), Agosto– Carías, Golpe de Estado, pp. 218ff. Septiembre 1999, session of August 7, 1999, no. 4, pp. 6–13; and in Brewer-Carías, Debate Constituy- 73. See the Decree of Judicial Emergency in Gaceta Oficial no. 36.772, August 25, 1999, and in ente, vol. 1, pp. 15–39. Gaceta Oficial no. 36.782, September 9, 1999. The 65. See Brewer-Carías, Golpe de Estado, Supreme Court issued a formal act accepting the pp. 181ff. assembly’s intervention of the judiciary, and later 66. Decree of August, 12, 1999. See the text the new Supreme Tribunal upheld the decree in a in Gaceta Constituyente (Diario de Debates), Agosto– decision of March 24, 2000, no. 659 (caso: Rosario Septiembre de 1999, session of August 12, no. 8, Nouel), in Revista de Derecho Público no. 81 (2000), pp. 2–4, and in Gaceta Oficialno. 36.764 (August 13, pp. 102–05. See the comments regarding the Su- 1999). See this author’s dissenting vote in Brewer- preme Court submission to the assembly’s Hill and Carías, Debate Constituyente, vol. 1, pp. 43–56. its consequences in Brewer-Carías, Debate Consti- 67. Decree of August 19, 1999. See the text tuyente, vol. 1 (1999), pp. 141–52. in Gaceta Constituyente (Diario de Debates), Agosto– 74. See the decree of December 22, 1999, on Septiembre de 1999, session of August 18, 1999, the transitory constitutional regime in Gaceta Oficial no. 10, pp. 17–22, and in Gaceta Oficial no. 36.782 no. 36.859, December 29, 1999. (September 8, 1999). See this author’s dissenting 75. Such a method was used in developing vote in Brewer-Carías, Debate Constituyente, vol. 1, the 1947 constitution. See Anteproyecto de Consti- pp. 57–73. See the comments in Brewer-Carías, tución de 1947: Elección directa de Gobernadores y ©Golpe Copyright de Estado, pp. 184ff.; and in by Brewer-Carías, the eliminación Endowment de Asambleas Legislativas, Papeles deof Ar- “La progresiva y sistemática demolición institucio- chivo, no. 8 (Caracas: Ediciones Centauro, 1987). nal de la autonomía e independencia del Poder Ju- 76. See Hugo Chávez Frías, Ideas Fundamen- dicialthe en Venezuela United 1999–2004,” inStates XXX Jornadas tales Institute para la Constitución Bolivariana of de laPeace V República J.M. Dominguez Escovar, Estado de derecho, Admin- (Caracas: Presidencia de la República, 1999). istración de justicia y derechos humanos, Instituto de 77. This author was president of the Com- Estudios Jurídicos del Estado Lara, Barquisimeto mission on Nationality and Citizenship. See the 2005, pp. 33–174. report of the commission in Brewer-Carías, Debate 68. Decree of August 28, 1999. See the text Constituyente, vol. 2, pp. 45–74. in Gaceta Constituyente (Diario de Debates), Agosto– 78. This author was also a member of the Septiembre 1999, session of August 25, 1999, no. 13. constitutional commission. See the difficulties of See this author’s dissenting vote in Brewer-Carías, its participation in the drafting process in Brewer- Debate Constituyente, vol. 1, pp. 75–113. Carías, Debate Constituyente, vol. 2, pp. 255–86. 69. Decree of August 26, 1999. See the text 79. See in Gaceta Constituyente (Diario de in Gaceta Constituyente (Diario de Debates), Agosto– Debates), Octubre–Noviembre 1999, session of Octo- Septiembre 1999, session of August 26, 1999, no. 14, ber 19, 1999, no. 23. pp. 7–8, 11, 13, 14; and in Gaceta Oficial no. 36.776 80. See for instance Brewer-Carías, “La Con- (August 31, 1999). See the author’s dissenting stitución Española de 1978 y la Constitución de la Framing the State in Times of Transition 529

República Bolivariana de Venezuela de 1999: algu- 91. Brewer-Carías, “La progresiva y siste­ nas influencias y otras coincidencias,” in La Consti- mática demolición institucional,” pp. 33–174; La tución de 1978 y el Constitucionalismo Iberoamericano, Sala Constitucional versus el Estado democrático de ed. Francisco Fernández Segado (Madrid: Minis- derecho: El secuestro del poder electoral y de la Sala Elec- terio de la Presidencia, Secretaría General Técnica, toral del Tribunal Supremo y la confiscación del derecho Centro de Estudios Políticos y Constitucionales, a la participación política (Caracas: Los Libros de El 2003), pp. 765–86. Nacional, Colección Ares, 2004); and “El secuestro 81. All the suggestions made by this author del Poder Electoral y de la Sala Electoral del Tribu- to the board of directors of the constituent as- nal Supremo y la confiscación del derecho a la par- sembly to invite the most distinguished consti- ticipación política mediante el referendo revocato- tutional lawyers of Latin America and Spain to rio presidencial: Venezuela: 2000–2004,” in Revista advise the constitution-making process were sys- Costarricense de Derecho Constitucional, vol. 5 (2004), tematically denied. Nonetheless, after the constitu- pp. 167–312; and in Revista Jurídica del Perú, vol. 54, tion was approved, it was known that some teach- no. 55 (March–April 2004), pp. 353–96. ing members of the University of Valencia, Spain, 92. This has led President Chavez to affirm helped the vice president of the assembly in the since 2001 that “La ley soy yo. El Estado soy yo” technical committee. See Roberto Viciano Pastor [I am the law. I am the state]. See El Universal, Ca- and Rubén Martínez Dalmau, Cambio político y pro- racas, December 4, 2001, pp. 1.1 and 2.1; see also ceso constituyente en Venezuela (1998–2000) (Valen- Brewer-Carías, Allan R., “Venezuela under Chavez: cia: Tirant lo Blanch, 2001). Blurring between Democracy and Dictatorship?” Lecture given at the University of Pennsylvania Law 82. See the text of all this author’s 127 dis- School, Philadelphia, April 16, 2009, available at senting or negative votes in Brewer-Carías, Debate http://allanbrewercarias.com/Content/449725d9- Constituyente, vol. 3, pp. 107–308. f1cb-474b-8ab2-41efb849fea2/Content/I,%201, 83. See the arguments in Brewer-Carías, De- %20989.%20VENEZUELA%20UNDER%20 bate Constituyente, vol. 3, pp. 309–40. CHAVEZ.%20BLURRING%20BETWEEN 84. See Molina and Pérez Baralt, “Procesos %20DEMOCRACY%20AND%20DICTATOR Electorales,” pp. 67–68. SHIP.%20Pennsylvania%20Law%20April%20 85. See in Gaceta Oficial no. 36.859, Decem- 2009.%20l.pdf (accessed July 19, 2009). ber 29, 1999. 93. Almost two years after the constituent 86. See the comments regarding this decree assembly’s intervention in the judiciary, some jus- in Brewer-Carías, Golpe de Estado, pp. 354 ff.; and tices of the Supreme Tribunal acknowledged that in La Constitución de 1999: Derecho Constitucional more than 90 percent of the judges of the republic Venezolano, vol. 2 (Caracas: Editorial Jurídica Ven- were provisional. See El Universal, August 15, 2001. © Copyrightezolana, 2004). by the EndowmentIn May 2001, other justices recognized of that the 87. See the January 26, 2000, decision no. 4 so-called judicial emergency was a failure. See El (caso: Eduardo García), and the March 28, 2000, Universal, May 30, 2001, pp. 1–4. See also Informe sobre la Situación de los Derechos Humanos en Ven- thedecision United no. 180 (caso: Allan R.States Brewer-Carías and Institute of Peace ezuela, OAS/Ser.L/V/II.118. d.C. 4, rev. 2, Decem- others) in Revista de Derecho Público, no. 81 (2000), ber 29, 2003, para. 11, p. 3. It reads: “The Commis- pp. 93ff., 86ff. See Brewer-Carías, Golpe de Estado, sion has been informed that only 250 judges have pp. 354ff. been appointed by opposition concurrence accord- 88. Special statute for the ratification or ap- ing to the constitutional text. From a total of 1772 pointment of the public officials of the citizen’s positions of judges in Venezuela, the Supreme Court power and of the justices of the Supreme Tribunal of Justice reports that only 183 are holders, 1331 are of Justice for the first constitutional term, in Gaceta provisional and 258 are temporary.” Oficial no. 37.077, November 14, 2000. 94. See Brewer-Carías, “La progresiva y sis- 89. See, e.g., the decision of March 28, 2000, temática demolición institucional,” pp. 33–174; no. 179 (caso: Pérez M. Gonzalo), in Revista de and Rogelio Pérez Perdomo, “Judicialization in Derecho Público, no. 81 (2000), pp. 81ff. Venezuela,” in The Judicialization of Politics in 90. Decision of December 12, 2000 (caso: Latin America, ed. Rachel Sieder, Line Schjolden, People’s Defender), in Revista de Derecho Público, and Alan Angell (New York: Palgrave Macmillan, no. 84 (2000), pp. 108ff. 2005), pp. 145ff. 530 Allan R. Brewer-Carías

95. See introduction to this volume. 104. See this author’s dissenting vote in this 96. See Brewer-Carías, “La opción entre de- regard in Brewer-Carías, Debate Constituyente, mocracia y autoritarismo,” in Reflexiones sobre el con- vol. 3, pp. 289ff. In the 2007 constitutional reform stitucionalismo en América, pp. 41–59; Brewer-Carías, draft proposals, the indefinite possible reelection of Constitución, Democracia y control del Poder (Mérida, the president is established. See Proyecto de Reforma Centro Iberoamericano de Estudios Provinciales y Constitucional. Locales (CIEPROL), Universidad de Los Andes, 105. See the comments regarding this provi- Editorial Jurídica Venezolana, 2004). sion in Brewer-Carías, “Régimen Constitucional de 97. See Brewer-Carías, “La progresiva y sis- la delegación legislativa e inconstitucionalidad de temática demolición institucional,” pp. 33–174; los Decretos Leyes habilitados dictados en 2001,” Brewer-Carías, La Sala Constitucional versus el Es- in Revista Primicia, Informe Especial, December tado democrático de derecho; Brewer-Carías et al., 2001. (Rozana Orihuela G., Maria Alejandra Correa, 106. See this author’s dissenting vote in this Gustavo Briceño V., José Ignacio Hernández) regard in Brewer-Carías, Debate Constituyente, Leyes Orgánicas del Poder Ciudadano (Caracas: vol. 3, pp. 303ff. Editorial Jurídica Venezolana, 2004); and Brewer- 107. In the 2007 constitutional reform draft Carías, La crisis de la democracia en Venezuela (La proposals, a new component of the armed forces Carta Democrática Interamericana y los sucesos de abril is proposed: the Popular Bolivarian Militia. See se 2002) (Caracas: Ediciones Libros El Nacional, Proyecto de Reforma Constitucional. 2002). 108. See Brewer-Carías, Federalismo y Mu- 98. The citizens branch is composed of the general comptroller, the public prosecutor and the nicipalismo en la Constitución de 1999 (Alcance de una people’s defender. reforma insuficiente y regresiva) (Caracas-San Cris- tóbal: Editorial Jurídica Venezolana, 2001). 99. This is also the case for the justices of the Supreme Tribunal. Article 23.4 of the Su- 109. See this author’s dissenting vote in this preme Tribunal Organic Law refers to simple regard in Brewer-Carías, Debate Constituyente, majority in the sense of more than 50 percent vol. 3, pp. 286ff. of those present and voting. See comments in 110. Brewer-Carías, “La ‘Federación De- Brewer-Carías, Ley Orgánica del Tribunal Supremo scentralizada’ en el marco de la centralización de la de Justicia: Procesos y procedimientos constitucionales Federación en Venezuela: Situación y perspectivas y contencioso administrativos (Caracas: Editorial Ju- de una contradicción constitucional,” in Consti- rídica Venezolana, 2004). tución, Democracia y Control el Poder, pp. 111–43. 100. See the comments in Brewer-Carías, See the author’s proposals to the constituent assem- ©Constitución, Copyright Democracia y control del Poder. by thebly regardingEndowment the political decentralization ofof the 101. See Brewer-Carías, Crónica sobre la “In” federation in Brewer-Carías, Debate Constituyente, Justicia Constitucional: La Sala Constitucional y el Au- vol. 1, pp. 155–70; and vol. 2, pp. 227–33. toritarismothe (Caracas:United Editorial Jurídica States Venezolana, Institute111. In the 2007 constitutional of Peacereform draft 2007); in particular, “Quis custodiet ipsos custodes: proposals, Article 158 of the constitution and all the de la interpretación constitucional a la inconstitu- constitutional provisions referring to political de- cionalidad de la interpretación,” paper submitted to centralization are eliminated and changed to con- the VIII Congreso Peruano de Derecho Constitu- solidate a centralized state. See Proyecto de Reforma cional, Colegio de Abogados de Arequipa, Septem- Constitucional. ber 22–24, 2005, pp. 47ff. 112. See Brewer-Carías et al., Ley Orgánica 102. See this author’s dissenting vote in this del Poder Público Municipal; and “El inicio de la regard in Brewer-Carías, Debate Constituyente, desmunicipalización en Venezuela: La organización vol. 3, pp. 288ff. del Poder Popular para eliminar la descentralización,­ 103. In the 2007 constitutional reform draft la democracia representativa y la participación a proposals, the term is extended up to seven years. nivel local,” en AIDA, Opera Prima de Derecho Ad- See Proyecto de Reforma Constitucional. Elaborado ministrativo: Revista de la Asociación Internacional por el ciudadano Presidente de la República Bolivari- de Derecho Administrativo, Asociación Internacional ana de Venezuela, Hugo Chávez Frías (Caracas: Edi- de Derecho Administrativo, UNAM, México, 2007, torial Atenea, 2007). pp. 49–67. Framing the State in Times of Transition 531

113. In the 2007 constitutional reform draft Venezuela en la conmemoración del Ducentécimo proposals, a new branch of government was pro- Segundo Aniversario del Juramento del Libertador posed, the Popular Power, seeking to consolidate Simón Bolívar en el Monte Sacro y el Tercer Ani- the power of communal councils, with members not versario del Referendo Aprobatorio de su mandato elected by popular vote and dependent on the office constitucional,” Special session of August 15, 2007, of the head of state. See the comments in Brewer- Asamblea Nacional, División de Servicio y Aten- Carías, Hacia la consolidación de un Estado Socialista; ción legislativa, Sección de Edición, Caracas 2007. and in La Reforma Constitucional de 2007. 121. “Discurso de Orden,” p. 4 114. See Brewer-Carías, “Democracia muni­ci­- 122. Ibid., p. 33. pal, descentralización y desarrollo local,” pp. 11–34. 123. Ibid., p. 4. 115. See Brewer-Carías, “Democratización, 124. See Brewer-Carías, “Reflexiones sobre descentralización política y reforma del Estado” and la crisis del sistema político,” p. 34 “El Municipio, la descentralización política y la de- 125. Ibid., p. 32. mocracia,” in Reflexiones sobre el constitucionalismo en América, pp. 105–41, 243–53. 126. Ibid., p. 35. 116. See Ley de Consejos Comunales, Ga­- 127. Ibid., p. 74. ceta Oficial, no. 5806 Extra, April 10, 2006. See also 128. See Lolymar Hernández Camargo, “Lí- Allan R. Brewer-Carías, “El inicio de la desmu- mites del poder ejecutivo en el ejercicio de la ha- nicipalización en Venezuela: La organización del bilitación legislativa: Imposibilidad de establecer el Poder Popular para eliminar la descentralización, la contenido de la reforma constitucional rechazada democracia representativa y la participación a nivel vía habilitación legislativa,” in Revista de Derecho local,” in Revista de la Asociación Internacional de Público, no. 115 (Estudios sobre los Decretos Le- Derecho Administrativo, Universidad Nacional Au- yes) (Caracas: Editorial Jurídica Ven­ezolana, 2008), tónoma de México, Mexico, 2007, pp. 49–67. pp. 51ff.; Jorge Kiriakidis, “Breves reflexiones en 117. Brewer-Carías, “El secuestro del Poder torno a los 26 Decretos-Ley de ­Julio-Agosto de Electoral,” pp. 167–312. 2008, y la consulta popular refrendaría de diciem- bre de 2007,” in Revista de Derecho Público, no. 115, 118. See regarding this author’s writings, pp. 57ff.; and José Vicente Haro García, “Los- re Brewer-Carías, El Estado: Crisis y reforma. cientes intentos de reforma constitucional o de 119. See Proyecto de Reforma Constitucional. cómo se está tratando de establecer una dictadura See the comments on the draft in Allan R. Brewer- socialista con apariencia de legalidad (A propósito Carías, Hacia la consolidación de un Estado Socialista. del proyecto de reforma constitucional de 2007 y 120. “Discurso de Orden pronunciado por el los 26 decretos leyes del 31 de julio de 2008 que ciudadano Comandante Hugo Chávez Frías, Presi- tratan de imponerla),” in Revista de Derecho Público, © Copyrightdente Constitucional de la República by Bolivariana the de Endowmentno. 115, pp. 63 ff. of the United States Institute of Peace