Venezuela’s constitutional reform – both because of its content and the mechanisms designed for decision–making - does not appear to be the best way to guarantee the continuity of the transformation process and the deepening of democracy.
I
Following Chávez’s [presidential] election victory in December 2006, conditions were optimal to initiate a wide-ranging debate about the next steps in the transformation of the country. Chávez’s electoral support was not only maintained but, in percentage terms, slightly increased. These electoral results were recognised as legitimate by the opposition candidate, international observers, and even by the [U.S.] State Department. The opposition was fragmented and lacking in political initiative. The U.S. government was increasingly bogged down in Iraq and Afghanistan which has severely compromised its ability to open up new fronts of confrontation. The Venezuelan economy maintained its trend of sustained growth whilst consumption grew markedly in all sectors of the population. The Communal Councils, despite their improvisational character and multiple problems, had given a new impetus to participation of the poorest sectors .
The issue of socialism had been repeatedly brought up by Chavez throughout his presidential election campaign, but beyond the term “socialism of the 21st century”, there had not been any progress in characterising the model of socialism which was sought. Given that it was called socialism of the 21st century it was clear that we were not dealing with the socialism of the 20th century, in particular, not the Soviet version of socialism. Nevertheless, it was not defined what the difference would be and in what respect socialism of the 21st century should be different to the Soviet experience of the 20th century. In the negation of the model of the sole party? In other modalities of relations between the State and parties? In the rejection of an official ideology of the State? In generating alternatives to the mono-cultural model that negates any differences? In forms of political organisation and participation orientated towards avoiding a repetition of the so-called popular or proletarian democracies which ended up negating the very idea of democracy? In an economic model that is not based on centralised bureaucratic planning? In a radical questioning of industrial productivism based on limitless growth, as represented by the Soviet Union, and today by China, a systematic war against the rest of nature, against life on the planet itself, in a similar way as capitalism has historically done and continues to do today? Are we talking of a socialism with political pluralism, that is compatible with what is established as one of the fundamental principles of the present constitution?1
None of these issues can be assumed to be implicit. Each of them requires investigation, debate, and theoretical and political confrontations over the characteristics of the model of socialism in the last century, over the processes which culminated in the implantation of a bureaucratic and authoritarian statism, and its failure as a historical option to capitalism. In learning about what happened in the past there is the possibility of not repeating it. Today we have both the conditions and obligation to think about the future that we want to build, incorporating both a critical reflexive analysis about the past, as well as the new political, cultural, economic, technological and environmental conditions that we live in.
The constitutional reform, neither in the manner in which it has been elaborated and presented to the public, nor in its content, would appear to adequately contribute to this necessary debate. In what follows, in addition to highlighting some of the positive aspects, doubts and concerns are expressed over the content of the constitutional reform. Some are in reference to substantive issues, concerning both content and procedure. Others are in relation to issues which are unclear and lacking in definition, and which in the future could turn into a source of problems.
II
The vital debate over the model of society that is sought will be aborted if it is assumed that it is sufficient to simply label it as socialist. How is socialism understood in the constitutional reform project? The text includes the repeated use of the word “socialism” as an adjective to describe the character of the state, of the economy, of democracy, without the corresponding characterisation of what is understood by socialist. Therefore, what constitutes the central basis of the proposal is not defined. There are various articles that define the socialist character of the model of development and economy. Article 112 refers to the collective and cooperative construction of a Socialist Economy:
“The State will promote the development of an independent, diversified and intermediate productive economic model, based on the humanistic values of cooperation and the preponderance of common interests over individual ones, which guarantees the fulfilment of the social and material needs of the people, the highest amount of political and social stability, and the greatest amount of happiness.”
Furthermore, [the State] will promote and develop several types of socially-owned companies and economic units, both direct or communal and indirect or state-owned, as well as companies and economic units of production and/or social distribution whose ownership might be shared between the State, the private sector and the communal power, creating the best conditions for the collective and cooperative construction of a Socialist Economy.”
Article 113 refers to socialist production units:
“The State can reserve for itself the exploitation of natural resources or any other strategic good property of the Nation, as well as that of vital public services, either directly or through companies under its ownership, without prejudicing the creation of directly socially-owned companies, mixed companies, and/or units of socialist production, which secure social and economic sovereignty, respect the control of the State, and comply with the social obligations that are imposed on them, all this in accordance to the terms established in the respective laws in each sector of the economy. In the cases of exploitation of goods belonging to the Nation, or of the provision of public services, the State, through laws, will choose the mechanism of production and enactment of these, and will be able to grant concessions for a fixed term, always ensuring the existence of adequate compensation in the public interest, and the creation of direct social taxation on the benefits.”
Article 168 refers to socialist means of production:
“In its functions the Municipality will be obliged to incorporate, within the sphere of its competence, citizen participation, through the Councils of People’s Power and the socialist means of production.”
Article 184 refers to the construction of a socialist economy:
“A national law will create mechanisms so that National Authorities, the States and Municipalities, decentralise and transfer the services which they run to organised Communities, Communal Councils, Comunes and other Entities of Popular Power, and promote:
(…) 3. Participation in the economic processes, stimulating the different expressions of the social economy and sustainable endogenous development, through cooperatives, saving banks, socially-owned companies, collectively-owned companies, mixed-ownership companies, mutuals and other associative forms, which permit the construction of the socialist economy.”
Article 300 refers to the principles of a socialist economy:
"National Laws shall establish the conditions for the creation of companies or regional entities aimed at promoting and enacting economic or social activities guided by principles of the socialist economy, and shall create the mechanisms of control and auditing that ensure transparency in the management of public resources that are invested in such activities, and their reasonable economic and social productivity.”
Article 321 refers to the socialist character of the nation’s development:
“Within the framework of his function as administrator of the international reserves, the Head of State will establish, in coordination with the Venezuelan Central Bank and at the end of each year, the level of reserves necessary for the national economy, as well as the amount of the excess reserves, which will be destined to funds earmarked by the National Executive for productive investment, development and infrastructure, financing of the misiones and overall, to the integral, endogenous, humanist and socialist development of the nation.”
These texts do not define what it understood either by economy or by socialist development. On the one hand the model of development and economy as a whole are defined in global terms as socialist. From here it could be inferred that socialism is understood as an economic model where the most diverse modalities of property coexist. All this would form part of the socialist society.
Nevertheless, in other articles what appears to be understood by socialism is a particular way of organising production, or a specific property regime. Article 300 states that: “National Law shall establish the conditions for the creation of companies or regional entities aimed at promoting and enacting economic or social activities through principles of the socialist economy.” Similarly, references are made to “socialist means of production” (article 168), which appears to imply that there is a sector of the economy that would be properly socialist, while the rest of the economy would not be.
From the point of view of the political system, the State and democracy are defined as socialist in this project: articles 16 and 318 define the State as socialist:
“The Communes will be the geo-human cells of the territory and will be made up of the Communities, each of which will constitute the basic and indivisible spatial nucleus of the Socialist Venezuelan State, where ordinary citizens will have the power to build their own geography and history.” (Article 16)
“The national monetary system should aim to achieve the essential goals of the Socialist State and the well being of the people, above any other consideration.”
“The Venezuelan Central Bank is a public law entity without autonomy in the formulation and exercising of the corresponding policies and its functions will be subordinated to the general economic policy and the National Development Plan to reach the superior objectives of the Socialist State and the greatest sum of happiness for all of the people.” (Article 318)
What is understood as a Socialist State is not defined. Is it a state with centralised bureaucratic planning as is suggested by the idea of the “National Plan of Development to reach the superior objectives of the Socialist State”?
Article 70 defines the means of participation for building socialism:
“They are means for the participation and protagonism of the people, in the direct exercise of their sovereignty and for the construction of socialism: election of public posts, referendum, popular consultation, mandate revocation, the legislative, constitutional and constituent initiatives, the open town council, citizens’ assemblies whose decisions are binding, Councils of Popular Power (communal councils, worker councils, student councils, farmer councils, among others), workers’ democratic management of any direct or indirect social property enterprise, communal self-management, communal financial and micro-financing organisations, communally owned cooperatives, communal credit unions, networks of free associated producers, voluntary work, community enterprises and other associative forms that have been constituted to develop values of mutual cooperation and socialist solidarity.”
According to article 158, the building of a socialist democracy is national policy:
“The State will promote as national policy, the protagonistic participation of the people, transferring power and creating the best conditions for the construction of a Socialist Democracy.”
Before voting in favour of a constitutional reform which will define the State, the economy, and the democracy as socialist, we citizens have the right to take participate in these definitions. What is understood by the term socialist state? What is understood by the term socialist economy? What is understood by the term socialist democracy? In what way are these different to the states, economies, and democracies that accompanied socialism of the 20th century? Here, we are not talking about entering into a debate on semantics, rather on basic decisions about the future of the country.
III
In any case, from the articles already cited, it is clear that what is being proposed is a profound, radical transformation of the model of society contemplated in the constitutional text of 1999: the transition from capitalism to socialism. It is not a simple “partial revision” of the Constitution. According to article 342 of that constitution:
“The constitutional reform has as its aim a partial revision of this Constitution and the substitution of one or several of its norms that will not modify the structure and fundamental principles of the constitutional text.”
It is arbitrary to say that by not modifying the first nine articles that define the fundamental principles, and by conserving the formal structure of titles, chapters and articles of the Constitution, or because “only 10% of the articles” are being modified, “the fundamentals principles of the constitutional text” are not being modified, if what is being sought is the transformation of a capitalist society into a socialist one. The argument used here is purely formal, and therefore not a serious one. In order to implement the proposed constitutional modifications it would have been necessary to call a Constituent Assembly. What use are the legal norms – even those created in the present process of transformations, in this case the 1999 Constitution – if they can be interpreted in such a loose manner? Far from strengthening and deepening democratic legitimacy, this weakens it.
Equally profound are the changes proposed in the political-territorial organisation of the country. One of the fundamental principles of the 1999 Constitution, established in article 4, is the following:
“The Bolivarian Republic of Venezuela is a decentralised federal State in the
terms set forth in this Constitution, and it is governed by the principles of territorial integrity, cooperation, solidarity, concurrence and shared responsibility.”
Is the concept of a “decentralised federal State” and the relations between the attributions of the central and de-centralised entities not altered when the competencies of the National Government are greatly increased, thus weakening the attributions and autonomies of the municipalities and the states? In the proposal for reforming article 156 the National Public Government is given the following attributions:
“The organisation and management of the territory and territorial regime of the Federal District, the States, the Municipalities, Federal Dependencies and the other regional entities.”
“The creation, organisation and management of Federal Provinces, Federal and Communal Territories, and Federal and Communal Towns.”
Among the powers of the President of the Republic is that of:
"Creating Federal Provinces, Federal Territories and/or Federal Cities as provided in this constitution and appointing its authorities, according to the law." (Article 236)
By seeking such profound transformations in the constitutional order without calling a Constituent Assembly, the Supreme Court and its Constitutional Chapter are placed in a no-win position, as the final arbiters in interpreting the Constitution. If, despite what is explicitly stipulated in article of 342 of the Constitution, the tribunal pronounced that these profound changes could be undertaken via the reform process without the need of a Constituent Assembly, the legitimacy of the Supreme Court as an autonomous public power would be severely affected. This would lead to a severe deterioration in the separation of powers and in democratic institutionality as set out in the Constitution, both before and after the reform.
IV
In the present political context in Venezuela, which, despite the disarray in the opposition continues to be being extremely polarised, both the cliquish way in which the reform proposal was elaborated, and the method used for its discussion (the very limited time available, the en bloc discussion, the restrictions on the discussion about the reform to the proposed articles presented by the President), the debate on the constitutional reform project is inevitably subsumed in the confrontation between chavismo and the opposition. The reform project has been explicitly identified as a proposal of the President, who has stated that he has gone over the text “word for word”2. Far from promoting an open debate over the society that is sought, or even over the different aspects of the proposed reform, a manichean dichotomy between chavismo and antichavismo is created, where those who express disagreement with some aspects of the reform proposal are disqualified as belonging to the opposition, or as “reformists”, “infiltrators”, “counterrevolutionaries”, who have “jumped ship”. Consequently, the referendum on the constitutional reform becomes a new referendum in favour or against Chávez.
It is unlikely that in the scarce two months that have been allotted to it, there can be an effective, informed and participatory national debate, whose outcome will result in significant modifications to the proposed text. If this were not the aim of the debate, if after debating the reform proposal the result was that the reform remained intact, then the debate would be meaningless. Democracy is complex, difficult, takes time and requires processes of individual and collective learning. To skip these requirements in order to meet short-term political aims cannot be an option, as the future society that is sought is placed at risk.
In addition to the limitations in the time allotted for debating the proposal, there are also limitations about what can be debated. According to the President of the Supreme Court of Justice, as we are talking of a reform proposal that is an initiative of the President, only 33 articles of that proposal are under discussion.3
The modality of using a referendum is not the best way to contribute to a participatory dynamic, nor is the promotion of Committees in Defense of the Reform4, before a detailed study of its contents, which is the best way of transferring power to the people and deepening democracy. With these procedures, the constituent power, far from being the protagonistic subject of the transformation process, is reduced to a referendum option, in favour or against the reform. This, far from questioning the supremacy of the constitutive power over the constituent power, contributes to its consolidation. The constitutive power thus consolidates itself when it is the source of the debate agenda and of all the main political initiatives.
V
The argument that this is a "comprehensive reform" in which each of the articles is complemented in a systematic whole, and therefore it is necessary to vote for it en bloc, does not seem compelling. There are obviously some issues that can be grouped as interdependent blocs. This is not the case for all the proposed reforms. What is the necessary relationship that exists, for example, between the reduction of working hours and the establishment of a Federal District, which does not allow discussing and deciding on these two issues separately? The decision to submit the reform to a referendum en bloc is a political decision; there is no legal rule which requires this. As stipulated in article 344 of the Constitution, the President, as a proponent of reform, or one third of the National Assembly could decide to have "up to a third of it" voted on separately.
"The proposed constitutional amendment passed by the National Assembly will be submitted to a referendum within thirty days of its approval. The referendum will decide on the reform as a whole, but it may be possible to vote separately up to a third of it, if no less than one third of the National Assembly or if the reform initiative was so requested by the President of the Republic or a number not less than five per cent of the voters registered with the Civil and Electoral Registry."
Besides losing an extraordinary historical opportunity for a great democratic national debate on how to further advance the transformation process that is taking place in the country, we are in the presence of a retrograde step in relation to the much more open and democratic way in which, despite its limitations and hurried pace, the constitutional debate was conducted in 1999.
VI
According to article 5 of the 1999 Constitution:
"Sovereignty resides in the people, who exercise it directly in the manner provided for in this Constitution and the law, and, indirectly by suffrage, through the institutions exercising Public Power."
"The organs of the State emanate from the people’s sovereignty and are subject to them."
Given these assumptions, to define an alternative People’s Power as different from the other branches of the State seems contradictory. According to Article 136 of the proposed reform:
"Public Power is distributed geographically as follows: the people's power, the municipal power, the state power and the national power. With regard to the content of the functions exercised, the Public Power is organised into Legislative, Executive, Judicial, Citizen and Electoral. "
"The people are the repository of sovereignty and exercise it directly through People's Power. This does not stem from suffrage or any election, but from the status of human groups organised as a popular base. "
"People’s Power is expressed in communities, communes and self-government in cities, in communal councils, workers’ councils, peasants' councils, students’ councils and other bodies indicated by the law."
Here it appears to be assumed - and somehow justified- that the public authorities in which there is some degree of delegation or representation, necessarily become autonomous with respect to the popular will and start acting according to the logic of state power. So that only when power is exercised by the people "directly", and " does not stem from suffrage or any election, but from human groups organised as a popular base”, can there really be People’s Power. According to this, out of the four branches of public power, only one could be characterised as People’s Power. If this were so, then People’s Power would be limited to strictly local matters, while the bureaucratic, autonomous branches of government would control the rest of the State apparatus.
There are even more complex implications of turning grassroot organisations such as the Communal Councils into a part of the State. Will they be civil servants? Converting grassroot organisations into State institutions far from giving them more power and contributing to strengthening autonomous popular organization, can instead operate as a mechanism of co-optation and control from above. For as long as the State exists, democracy necesitates the recognition of inevitable (and necessary) tension between the State and the multiplicity of organisational forms and autonomous associations existing in society. To seek to resolve this tension by incorporating these multiple organisations/associations within the State, or in the search for an identity ‘People-State’, would threaten the existence of autonomous entities not subject to the logic of the State, autonomous entities that as history has shown, are a necessary condition of democracy, not only of liberal democracy, but also of a radical democracy.
VII
It is not clear what is meant by public ownership. According to the proposed amendment to Article 115:
"The different forms of ownership shall be recognised and guaranteed. Public property is that which belongs to the State institutions; social property is that which belongs to the people as a whole and to future generations, and may be of two types: indirect social property, when it is exercised by the State on behalf of the community, and direct social property, when the State allocates it in various forms and in territorially defined areas, to one or more Communities, to one or more Communes, to one or more cities, thus constituting citizens’ property; collective property is that which belongs to social groups or individuals, for the use and enjoyment in common and may be of social or private origin; mixed property is that conformed between the public sector, the social sector, the collective sector and the private sector, in various combinations, for the use of resources or execution of activities, always subject to full respect of the economic and social sovereignty of the nation; and private property is one that belongs to individuals or legally constituted entities and is recognised on the use and consumption of goods and legitimately acquired means of production."
If social property is "that which belongs to the people as a whole and to future generations," and is defined as "indirect social property" when "it is exercised by the State on behalf of the community," it is unclear how it differs to public ownership, "that which belongs to the State institutions". Does this mean that there is a form of property that belongs exclusively to the State and which it exercises on his own behalf, and not on behalf of the community? What is, or who are, in this case "the State"?
VIII
The text of the proposed reform appears to indicate that with the creation of the Federal District, residents of the capital region lose the right to elect their authorities. According to the reform proposed in Article 236, one of the powers of the President of the Republic is:
"To create Federal Provinces, Federal Territories and/or Federal Cities, as provided in this constitution and to appoint its authorities, according to the law."
Does this also refer to that other federal level which is not included in this list, the Federal District? If this is not the case why not explicitly state in the article that refers to the creation of a Federal District, that the selection of its officers (governor, mayor, or head of government) will be conducted through universal suffrage as established in Article 160 for governors and in Article 174 for mayors?
If on the other hand, it is being proposed that the head of government of the Federal District is, as it was until a few years ago, appointed by the President of the Republic, we would be faced with a retrograde step in the democratic control of the people over their rulers, and in the presence of an increased concentration of presidential power in a political system that is characterised by a high degree of presidential centralism.
IX
One of the more radical changes proposed in the Constitutional Reform is referred to the so-called new geometry of power, incorporated in the amendments to Article 16. Here, in addition to the point made above -according to the Constitution so radical a change would require a Constituent Assembly-, we can identify several difficulties. First, a whole range of new politico-territorial units are defined without their nature being sufficiently defined or based on a definition that is, at the very least, problematic. In the 1999 constitution the “national territory is divided into States, the Capital District, federal agencies and federal territories. The territory is organised into Municipalities." (Article 16). The proposed reform of this article adds the following ‘politico-territorial’ units: Federal Cities; Communes; Communities; Federal District; Maritime Regions, Insular Districts; Functional Districts, the City (as the primary political unit of national territorial organisation); Communal City; Federal Municipalities and Federal Provinces 5, as well as "any other entity established by the Act". In the proposed reform of Article 11, Special Military Regions are additionally introduced.
Beside the fact that the nature of each of the different denominations is not clear, we are dealing with an overly complex model of politico-territorial organisation, which seems to have many overlapping categories, especially those that could occur between the current politico-territorial units, the municipalities and the states (which are not eliminated), and the new politico-territorial units. Before such a substantial change to the politico-territorial organisation of the country is approved, there should be an informed national debate about the full significance of these transformations. Which of these new politico-territorial units will contribute to the deepening of democracy and self-government? Which, on the contrary, point to a greater concentration of power in the National Government?
From the point of view of the objective of increasing the level of participation of organised communities in the management of public affairs, there seem to be diverging criteria. On the one hand, Article 184 seeks to achieve this goal through mechanisms so that the "National Government, States and Municipalities decentralise and transfer to the organised Communities, Communal Councils, the Communes and other bodies of People's Power, the services which they manage". This option would require using the existing politico-administrative structures, and start from these to deepen participatory processes.
On the other hand, there does not seem to be a lot of confidence that this can occur, so in order to achieve increasing levels of participation, alternative politico-territorial organisations are proposed. The reform establishes an extraordinary increase in the concentration of decision-making in the hands of the National Government, thus weakening the politico-territorial structures of States and Municipalities. Is the object here to begin removing the authority from States and Municipalities so as to start creating a completely new politico-territorial organisation? If so, why not state this explicitly? The President of the Republic (via approval by a simple majority of the National Assembly), can create Federal Provinces, Federal Territories, Federal and/or Federal Cities. (Article 236), and also appoint its authorities. In cases of political confrontations between the central government and regional or municipal authorities, this gives the National Government powers to resolve these tensions in its favor.
X
In the 1999 constitution, in keeping with the deep mistrust existing at that time in Venezuelan society in relation to these organisations, political parties are not even mentioned6. Also, one of the most problematic parts of that constitutional text states that: "The funding of associations with a political purpose with State resources will not be allowed." (Article 67). If the public, transparent funding of political organisations is denied, and particularly that of election campaigns, priority is instead being given to two problematic and less democratic sources of party funding: the illegal use of public resources by the parties in government, or the dependence on corporate funding, the undemocratic consequences of which are widely known.
The reform proposal does not mention any political parties, referring only to the fact that: "All citizens have the right to associate for political purposes." It is very positive, nevertheless, that it is contemplated that: "The state may finance electoral activities" (Article 67). However, a more categorical phrasing would have been desirable. By establishing that only the state "may" be able to carry out this funding, no obligation is implied and the commitment of public financing of election campaigns could be left at the discretion of those in power.
XI
One of the mistakes or gaffes widely recognised as one of the most serious in the constitutional text of 1999 is Article 303, in which the privatisation of subsidiaries of Venezuela’s state-owned oil company Petroleos de Venezuela, (PDVSA) is expressly authorised7. This article was even used to justify the need for a constitutional reform. However, in the reform proposal this article is not changed. Moreover, in the proposed reform of article 302, the role of the State in the oil industry seems to change. While in the 1999 constitutional text: "The State reserves for itself through the respective organic law, and for reasons of national interest, the oil industry ...”, the reform proposal does not refer in general terms to the "oil industry", but only to its "exploitation". This is potentially a significant change in the orientation of the current oil policy. Given the centrality of the hydrocarbons industry in the country, this is an amendment that requires a broad and informed national debate.
Moreover, there was no justification for the categorical differentiation established in the 1999 Constitution, between the monopoly reserved by the State of the entire oil industry, and the wide opening to the participation of private capital allowed in the case of gas. This disparity is resolved in the proposed reform of article 302, which extends State monopoly, which in the Constitution of 1999 refers only to oil, to all "hydrocarbons, liquid, solid and gaseous."
XII
The reduction of the working day is a legitimate aspiration of both male and female workers. The proposed reform to article 90 states that the duration of the working day will be a maximum of six hours. The possibility that new jobs will be created as a result of this reduction could be significant. This has proved to be, as expected, one of the most attractive aspects of the proposed reform. However, beyond the apparent fairness of this demand, it is necessary to investigate if Venezuela is today in a position to impose it constitutionally. Is it possible to implement it simultaneously in all sectors of economic activity, regardless of their productivity or their greater or lesser capacity to absorb the additional costs this entails, or indeed by the dynamics requirements of cycles of agricultural activity? What implications will it have for a productive process, which despite the sustained economic expansion of recent years still shows a limited ability to generate employment? Will this not reinforce the ‘rentist’ nature of the productive model in the country?
What is the point, moreover, that this norm be established so rigidly, when even before the reform is approved, according to the Minister of Labour, Ramon Ribero, it seems that in reality the spirit of the amended article is different to what is specifically expressed in the text. While the text clearly states that the working day will have a maximum duration of six hours8, the Minister of Labour says that unions and employers may negotiate the implementation of this reduction of the working day, with the possibility for example:
"To work 8 hours, from Monday to Thursday and 4 hours in the morning of Friday. This would complete the 36 (working) hours per week so that people would have Friday afternoon, Saturday and Sunday free"9.
In addition, does it make sense that employers be responsible for "planning and organising the mechanisms for the better use of free time for the benefit of the education, and the human, physical, spiritual, moral, cultural and technical development of workers"? (Article 90). Is this the best way to contribute to the development of political, ideological and organisational skills of workers?
XIII
Perhaps the most important social and labour measure contained in the reform proposal - which represents a major change in relation to the 1999 text - is that which affects millions of informal workers, almost half of the economically active population. The limitations of labour rights and labor laws which have historically affected a high proportion of the population are well known. The proposed amendment to article 87 establishes that:
"...the Law will create and develop all aspects concerning a 'Fund of social stability for self-employed workers', so that with contributions from the State and the worker, the latter can enjoy basic labour rights such as retirement, pensions, holidays, leave of absence, pre-natal, post-natal and other that the laws will establish."
XIV
One severe limitation of the 1999 Constitution was the absence of any consideration of the conditions and specific demands of peoples of African descent, despite the fact that in its preamble it states as an "ultimate aim" the "re-founding of the Republic to establish a democratic, participatory and protagonist, multiethnic and multicultural society". This absence is addressed in the proposed reform of Article 100, which will create better conditions for the recognition of the essential cultural identity, and territorial rights that these communities have historically been denied.10
XV
Faced with the obvious limitations imposed by the existing administrative structures of the Venezuelan State for the operation of effective public policies, especially social policies designed to reach in the most direct and immediate manner and with the lowest bureaucratic impediments to the most excluded sectors of the population, in recent years the government created the ‘missions’, thus establishing a duality between new and old patterns of institutional governance. Often this has involved the duplication of functions making public administration more complex, costly and less transparent. This can be explained and may even be fully justified - as a product of the emergency measures needed during a process of political transition. The ‘missions’, despite its limitations, have been extremely effective in achieving its main objectives. However, there have also been many problems generated by its precarious institutionality, by the lack of standards and procedures for management and decision-making, and the insufficient transparency to facilitate social auditing. A constitutional change was an opportune time to address the state model that would replace the old bureaucratic structures inherited from the State. However, the constitutional reform proposal postpones the subject, does not define a clear direction for the institutionalization of central public administration, nor clarify whether the ‘missions’ will be the model for the administration of the socialist State. On the contrary, in the proposed reform of Article 141 the current uneasy coexistence between the old and new institutional framework remains enshrined in the Constitution.11
XVI
One of the most controversial aspects of the reform proposal relates to the removal of limits on presidential reelection and the expansion of presidential terms to seven years. (Article 230). From a formal point of view, if the argument is that the people are sovereign and have the right to elect their representatives for as long as they so desire, there appears to be no justification whatsoever for this measure only to apply to the President of the Republic and not to other elected public officials.12
In more substantive terms, and given the fact that this does not represent a matter of abstract doctrinaire political philosophy, but a proposal conceived and designed for a specific political situation, the consolidation in time of unquestioned leadership centered on a particular person could eventually hinder the establishment of a pluralistic culture of debate and the deepening of democracy. With the possibility of indefinite reelection of the President -given the age of Chávez- the issue of leadership succession disappears from the horizon. If, after fourteen years of Chavez in the presidency (i.e. at the time of the elections of the year 2012 or 2013), the political transformation of the country has not yet achieved a level of institutionalisation that makes it possible to continue beyond one person, one could reasonably question the strength and depth of the process. There is, moreover, no reason why Chavez could not continue to play an important political role away from the presidency.
XVII
With regard to the issue of land tenure, the proposed reform of Article 307 moves from a weak definition of the policy against the latifundios[large estates] ( "The latifundista regime is contrary to public interest.") to a strict norm: "the latifundio regime is prohibited as contrary to social interest. It is stated that "The Republic will determine by means of Law the way in which latifundios will be transferred to the state-owned sector, or to public corporations, cooperatives, communities or social organisations able to administer or to make productive use of the land." Despite the fact that land distribution is not, as is demonstrated by the experience of recent years, a sufficient condition for progress towards food sovereignty, the democratisation of its ownership, is as much a requirement of social justice, as a necessary condition for achieving this goal.
Another aspect of this article is, however, troubling; the idea according to which the sole function of the land is agricultural and livestock production.
"The Law will create taxes on productive land not being used for agricultural production or livestock." (Article 307)
In this unilaterally productivist conception any consideration of the land in terms of watersheds, biodiversity, recreation, aesthetic values is absent. Its only function is economic exploitation . There is not much here that clarifies the concept of "productive land", as this, in fact, does not define anything. It is normal for different types of "lands" to have different "uses". Can we define as a productive land any land that can potentially be used for livestock and farming? Does that mean that it must necessarily be put to productive use?
XVIII
It is disturbing to see the increase in the actual police functions of the Armed Forces. While in the Constitution of 1999 its function is that of "cooperation in the maintenance of law and order ..." (Article 328), the proposed reform of said article establishes their "permanent participation in the maintenance of public safety, and ensuring law and order ...". Additionally, the proposed amendment to article 239, provides that "The Bolivarian Armed Forces may engage in the activities of administrative police and criminal investigation duties assigned to them by law."
It is unfortunate that a military response is sought to the serious issue of insecurity, ignoring the extraordinary effort made by the National Commission for Police Reform which after an exhaustive national consultation exercise recommended the creation of a:
... public civilian institution of indelegable and concurrent function, guided by the principles of participation, permanence, efficiency, effectiveness, universality, democracy, control of performance and evaluation, in accordance with procedures and standards defined and subjected to a process of planning and development according to the demands of the community at the national, regional and local level.13
XIX
By limiting the debate to the articles proposed by the President, key issues such as the reproductive rights of women, rights over their own body, and the rights of sexual minorities are left aside. The protection of pregnancy "starting from conception" (article 76) must be modified in order to legalise the interruption of pregnancy, a basic right that has been achieved by women, even in much more conservative Latin American countries. The fact that this historical demand of the women’s movement and that referred to the rights of sexual minorities did not form part of the reform proposal seems to reflect the weight that conservative sectors continue to have in the presidential circle.
XX
What is at stake today in Venezuela is not the permanence of Chavez in government. The President has been re-legitimised in recent elections and his popular support is not in question. The crucial issue is to ensure the continuity of the transformation process and the deepening of democracy. This constitutional reform, both in terms of its content or the mechanisms created and used for its discussion and decision-making, does not seem to be the best way to achieve these objectives. Building a democratic society is only possible by using ever more democratic procedures. This historical moment demands more participation, not a pre-determined participation; it demands ever more democracy, of the participatory and protagonist type.
Notes
1 "Venezuela is established as a democratic and social State enshrining justice and the rule of law; it espouses as the highest values of its legal system and its actions, life, liberty, justice, equality, solidarity, democracy, social responsibility and, in general, the preeminence of human rights, ethics and political pluralism." (Article 2)
2 Chávez: ‘estoy trabajando letra por letra’ la Reforma Constitucional, Aporrea, Caracas, July 30, 2007. )
3 "The reform was raised by the President, therefore it is that which was presented by the President which must be studied ... If (any item) has connections with those which are going to be reformed, then by legislative technique it should be modified to conform with it since there can be no contradictory articles." Juan Francisco Alonso, "Morales afirma que el septenio tendrá vigencia inmediata", El Universal, Caracas, August 18, 2007.
4 Chávez juramentó a los Comités de Defensa de la Reforma Constitucional, Agencia Bolivariana de Noticias, Caracas, September 1, 2007.
5 Article 16: “The national territory, conforming to the political and territorial objectives and in accordance with the new geometry of power is composed by, a Federal District that will be home to the capital of the Republic, by the States, the Oceanic Regions, the Federal Territories, The Federal Municipalities and the Insular Districts. The relevance of the Federal Territories and Federal Municipalities will be subject to the outcome of a referendum to be carried out in the respective entity.
The States are organised in Municipalities.
The primary political unit in the national territorial organisation will be the city, understood as any population settlement inside a Municipality, and made up by areas or geographic extensions denominated Communes. The Communes will be the geo-human cells of the territory and will be made up of Communities, each of which will constitute the basic and indivisible spatial nucleus of the Venezuelan Socialist State, where common citizens will have the power to build their own geography and history. Based on the Communities and the Communes, the Popular Power will develop forms of political-territorial communal aggregations, which will be regulated by Law and that will constitute forms of self government and any other expression of direct Democracy. The Communal City is formed when organised Communities, Communes and self communal governments are established in the totality of its perimeter, being subject to a popular referendum to be called by the President of the Republic in the Council of Ministers.
The President of the Republic, in the Council of Ministers, following an agreement being approved by a simple majority of Representatives of the National Assembly, will be able to create by decree, Federal Provinces, Federal Cities and Functional Districts, as well as any other entity allowed by the Law.
The Functional Districts will be created to conform to the historic, socio-economic and cultural characteristics of the geographical space as well as being based on the economic potentialities that, emanating from them, will become necessary to develop for the benefit of the country.
The creation of a Functional District implies the preparation and activation of a District Mission with its respective Strategic and Functional Plan by the National Government, with the participation of the inhabitants of such Functional District and in permanent consultation with the inhabitants.
The Functional District may be conformed by one or more Municipalities or Territorial units, without regard to the State they belong to.
The organisation and functionality of the Federal City will be made according to what is established in the respective law and implies the activation of a Local Mission with its respective strategic development plan.
In the Federal Territory, the Federal Municipality and the Federal City, the National Power will designate the respective authorities for a maximum term that will be determined by Law and subject to revocable mandates.
The Federal Provinces will be formed as units of aggregation and coordination of territorial, social and economic policy on a regional scale, subject to the national strategic plans and to the international strategic outlook of the Venezuelan State.
The Federal Provinces will be formed by indistinctly aggregating States and Municipalities, without undermining the attributions that this Constitution confers them.
The political-territorial organisation of the Republic will be legislated by an Organic Law.”
6 It is only stated that: "All citizens have the right to associate for political purposes." (Article 67).
7 "For reasons of economic and political sovereignty, and national strategy, the State will retain all the shares of Petroleos de Venezuela S.A., or the entity created to manage the oil industry, except those of subsidiaries, strategic partnerships, companies and any other that has been established or is formed as a result of business development of Petroleos de Venezuela S.A."
8 "In order that workers have enough time for the integral development of their person, the working day will not exceed six hours per day or thirty-six hours per week and the nocturnal shift will not exceed six hours per day or thirty-four per week."(Reform Proposal, Article 90)
9 “Ministro Rivero plantea trabajar cuatro horas los días viernes”, El Universal, Caracas, August 23, 2007.
10 "The Bolivarian Republic of Venezuela is the historical product of the confluence of several cultures, so the State recognises its diverse expressions and values the indigenous, European and African roots that gave birth to our Great South American Nation. The popular cultures, that of indigenous peoples and Afro-descendants, constitutive of the
Venezuelan nationhood, enjoy special attention, recognising and respecting interculturality on the basis of the principle of equality of cultures ..."
11 Article 141: "Public administration is an organisational structure designed to serve as a tool for the public authorities for the exercise of their functions, and for the provision of services. The categories of public administration are: bureaucratic or traditional public administration, which support the structures provided for and regulated in this constitution and the laws; and the "missions", made up of organisations of a varied nature, created to address the satisfaction of the most profound and urgent needs of the people, whose provision requires the application of exceptional, and even experimental systems, which will be established by the Executive Branch through organisational and functional directives."
12 This is the position that has been defended by the PPT, when proposing that the rule should also apply to governors and mayors: PPT pide reelección continua para todos, Panorama, Maracaibo. In Aporrea, Caracas, August 28, 2007.
13 Soraya El Achkar, "Reforme el 332, señor Presidente", El Universal, Caracas, September 17, 2007.
Translation: Pablo Navarrete
