An Introduction to Venezuelan Governmental Institutions and Primary Legal Sources
By Antonio Ramirez
Antonio Ramirez received his law degrees from the Universidad Católica Andres Bello (Venezuela) and Duke University Law School and a library science degree from St. John´s University (U.S.A.). He currently works as a reference librarian at the St. John´s University Law School Library. Previous working experience includes years of service at the Attorney General Office in Venezuela, New York University Law School Library, and Columbia University Law School Library.
Published May 2006
READ THE UPDATE!
Table of Contents
The Bolivarian Republic of Venezuela is a Federal republic comprising 23 states, two federal territories, one federal district, and 72 federal dependencies. Since Venezuela adopts the Representative, Republican and Federal form of democratic government, it is governed by representatives of the people, who are elected through direct vote. The country embraces a system made up of governmental powers (mainly an Executive Power, a Legislative Power, and a Judicial Power), and also has a written Constitution. It is one of the four federal republics in Latin America; the individual state governments keep their self-rule but must respond to a common government (the National government) and comply with the laws and Constitution of the Republic.
The Constitution is the source and origin of all Venezuelan laws and it overrides them all. There have been 29 constitutions since the country became finally independent in 1830, but it was the 1864 charter that actually established the federal form of government. Since then, all constitutions have kept this basic scheme of independence granted to the states and federal entities. They have also given full recognition to several basic principles, such as the preeminence of human rights, national sovereignty, division of powers, and the representative system.
The most recent constitution (ratified in a plebiscite in 1999) introduced important changes. It added two governmental branches (the citizen power and the electoral power). As an instrument that encourages social change, the Constitution calls for an active government with a moral obligation to promote not only civil and political rights, but also cultural, economic, and social rights. Paramount among the latter is the right to work and to housing.
The 1999 Constitution is divided into nine sequential titles (subdivided into chapters and articles) devoted to the political organization of the country and the formal acknowledgment of liberties and freedoms. The Constitution also has transitory provisions.
Since the Constitution confers upon the states a significant number of governmental powers and administrative functions , each state has its own constitution which establishes its administration of justice and municipal autonomy, and the scope and content of its institutional, political, administrative and financial systems. As a result of the federative scheme, each state counts with an independently elected executive power (headed by a Governor) and a legislative assembly. Each state also elects its own authorities and other state officers. They dictate their regional legislation through local institutions.
Brief descriptions of the five branches of government follow.
The Executive power dominates the other branches of government and is vested in the President, the Vice-President, and the Council of Ministers.
Presidency (Presidencia de la República Bolivariana de Venezuela).
Under the 1999 Constitution, the president is elected by a plurality vote with direct and universal suffrage. The president (both head of government and chief of state) is in charge of the general administration of the country and the protection of the National State interests, and is also the Commander-in-Chief of all the Armed Forces. The President is also empowered to direct foreign relations of the State, to declare a state of emergency and suspend liberties, and to convene extraordinary sessions of the National Assembly. The term of office is 6 years, and a president may be re-elected to a single consecutive term. The president appoints the vice president, decides about the size and composition of the Council of Ministers (or cabinet) and makes appointments to it. Like all elected officials, presidents can be subjected to revocatory referendums half-way through their terms.
Ministers are in charge of Ministries or Departments (devoted to internal affairs and justice, foreign affairs, defense, finance, education, energy, commerce, labor, environment, infrastructure, planning, public health, agriculture, and science and technology). Ministers endorse and authenticate, by virtue of their signatures, certain presidential actions that would not be effective otherwise. As head of a ministry or department and a member of the cabinet, a minister holds a position that is simultaneously administrative and political. The President, however, has the power of naming Ministers of State (“ministros de estado”) with a mere advisory role.
Although its members have their own functions and identity, the executive is seen as a collegiate entity. No institution embodies this idea better than the Council of Ministers. Its members are the President, the Vice-President and the Ministers. The most important function of the Council of Ministers is to set national policy in all areas of governmental activity
From a legal viewpoint, the most important task of the Council of Ministers is to issue regulations (Reglamentos) to specific laws. The approval of these regulations thus requires that the President act jointly with the Vice-president and Ministers. Individually, the President may issue Decrees (Decretos) and the Ministers may issue Resoluciones (Resolutions) regarding specific topics of their competence. Whether it is a regulation, a decree or a resolution, all must be published (along with the most important documentation from the executive branch) in the official gazette before they become binding.
National Assembly - The 167-member National Assembly is unicameral, consisting solely of the Chamber of Deputies, presided by one its members. It replaced the bicameral Congress (including a Senate) abolished by the new constitution. Deputies serve 5-year terms, and may be re-elected for only one additional term. These legislative agents are elected by direct, universal and secret vote through a combination of party list and single member constituencies. Three seats are reserved for the indigenous peoples of Venezuela.
Although the assembly currently has 167 members, that number may change depending on the population figures. For election purposes, the country is divided into districts and each one elects its members roughly proportional to their population. Each state is considered an electoral district and elects its Deputies by proportional representation.
Besides its legislative tasks, the Assembly has exclusive powers vis-à-vis levying taxes, sending troops, and prosecuting the President of the Republic, Ministers and members of the Supreme Court. The Assembly also elects the officers comprising the citizen power, which will be discussed below.
Ordinary sessions of the Assembly begin in January and continue until August, to be renewed from September to December. When the Assembly is not in session, its delegated committee acts on matters relating to the executive, and in oversight functions.
The law-making process is comprised of seven steps: initiative, debate, voting, passing, sanction, enactment, and publication. Legislation can be initiated by (1) the National Executive Power, (2) the legislative power (either a committee of the National Assembly or at least three of its members), (3) the Supreme Tribunal of Justice, in the case of laws relating to judicial procedures and organization of the judiciary , (4) the institutions comprising the citizen power (ombudsman, prosecutor general, and comptroller general), in the case of laws relating to the organization of their offices, (5) electoral power, in the case of laws relating to electoral matters; and (6) a number at least equivalent to 0.1% of all permanently registered voters signing a public petition. In practice, since the executive is the branch with the most political power, it initiates almost all legislation, especially any significant legislation.
Bills are submitted to a technical, material, and formal analysis, which is carried out by the (permanent or temporary) standing committees of the Assembly. The areas of expertise of these standing committees closely parallel the ones corresponding to the executive departments (internal affairs, foreign affairs, defense, finance, etc.). The number of standing committees is variable and may not exceed 15 at any given time.
Once the Assembly votes and passes the law after at least two debates, the president has ten days to sanction it or promulgate it, propose amendments to it or ask for a reconsideration of any of its provisions. The president may ask the National Assembly to reconsider any statute (or parts of it) he finds objectionable, but a simple majority of the Assembly can override these objections. If it does, the bill becomes law. The only exception occurs when the president’s objection is based upon a charge of unconstitutionality; in that case, upon the president’s request, the Supreme Court has fifteen days to make a ruling. If it does not make a ruling or rejects the president’s charge, the law is enacted.
The publication in the Official Gazette of the Republic of Venezuela, together with the enforcement order (“cúmplase”) issued by the National Executive, is the last step in the process. The laws become mandatory as of the date of their publication in the Official Gazette or at a date indicated in the respective text.
A special procedure is required for Amendments to the Constitution and Constitutional Reform. The Venezuelan Constitution is considered a “rigid” one because of the strict conditions imposed to modify it.
Amendments to the Constitution consist of changes to the constitutional text, of a large or small scope, making additions, deletions, or other modifications, without altering its fundamental structure. The Constitution may be amended on a proposal from 15% of the citizens registered with the Civil and Electoral Registry, or from 39% of the members of the National Assembly, or from the President of the Republic, acting jointly with the Council of Ministers. Approval requires the vote of a majority of the members of the Assembly. The Electoral Council shall submit the amendments to a referendum within 30 days of formally receiving the approved proposal.
The purpose of constitutional reform is to effect a partial revision of this Constitution and a replacement of one or more of its provisions, without modifying the fundamental principles and structure of the constitutional text.
The initiative for a constitutional reform may proceed from the National Assembly, through resolution approved by a majority vote of its members, from the President of the Republic sitting with the Cabinet of Ministers, or from registered voters through a request of at least 15% of the total number registered with the Civil and Electoral Registry.
The National Assembly shall debate on the draft of the constitutional reform three times (including title by title or chapter by chapter, and article by article discussions) and approve it with a two third majority vote in a time period no longer than 2 years. Once approved by the National Assembly, the constitutional reform draft (as a whole or in parts) shall be submitted to a referendum within 30 days from the date of its approval and shall be adopted if the number of affirmative votes is greater than the number of negative votes.
The hierarchy of Venezuelan norms is fairly typical of civil law jurisdictions. The supreme set of norms is the Constitution. Under this scheme, the Assembly should pass the laws or statutes (Leyes), with an internal hierarchy: Most statutes are ordinary acts or ordinary laws (leyes ordinarias). These are common laws, in the essential meaning of the word, originating from the Assembly, in the exercise of its primary legislating function. They deal with all subjects, except those which will be specifically dealt with by other categories of laws. Approval requires the vote of a simple majority, and sanction by the President of the Republic. Of equal hierarchy are the enabling laws (leyes habilitantes) from which decrees with the rank and force of law (“Decreto con Fuerza de Ley” or “D.F.L.”) or delegated laws emerge. At a higher level are organic acts or charter or organic laws (leyes orgánicas).
The last two kinds of laws deserve special attention.
Enabling laws are those enacted by a three fifths vote of the members of the National Assembly to establish the guidelines, purposes and framework for matters that are being delegated to the President of the Republic, so that he may issue Decretos con Fuerza de Ley or D.F.L. (Delegated Laws or decrees with the rank and force of law). The Assembly may thus delegate to the President the power to set norms with the status of law on specific matters. They are issued by the President by means of that delegation of competence from the Assembly. The President (the delegate) would not normally have competence to sanction that law, but has acquired the power to do so. Most of these decrees deal with economic or fiscal regulation, support and control of enterprises, scarcity of natural resources, and politically related issues.
"Organic" laws are: 1) those enacted to organize public powers or developing constitutional rights, 2) those which serve as a normative framework for other laws, or 3) those identified as such by the constitution. With the exception of the last category, any bill for the enactment or amendment of an organic law must first be accepted by a two thirds vote of the National Assembly, and will be sent, prior to promulgation, to the Constitutional Chamber of the Supreme Tribunal of Justice for a ruling on the constitutionality of its organic status.
The Supreme Tribunal of Justice (Tribunal Supremo de Justicia) (http://www.tsj.gov.ve/) is at the apex of the Venezuelan court system. Its 32 justices (“magistrados”) are elected by the National Assembly for a single 12-year term. Appointments are made following recommendations from the Committee for Judicial Postulations, which consults with organizations dealing with legal issues and the organs of the citizen power.
The Supreme Tribunal is the court of last resort and may meet either in plenary sessions or in groups forming specialized chambers. These chambers or divisions are six: Constitutional, Political Administrative, Electoral, Civil Appeals, Criminal Appeals, and Social (mainly agrarian and labor) Issues Appeals.
The Supreme Tribunal is empowered to invalidate any laws, regulations or other acts of the other governmental branches conflicting with the constitution. It also hears accusations against high public officials, cases involving diplomatic agents and certain civil actions arising between the State and individuals.
The lower court system includes district and municipal courts as well as trial and appeal courts that deal with civil and criminal matters.
The lower court system is somewhat complex. There are courts with special jurisdiction in the following areas: civil, commercial, criminal, labor, tax, custom, administrative, juvenile, military, and agrarian. In these jurisdictions (to varying degrees), courts are placed in hierarchical order and are competent on the basis of the amount involved or the importance of the case. For civil and commercial cases, for example, they are divided as follows: Parish Courts (Tribunales de Parroquia), District Courts (Tribunales de Distrito), Courts of First Instance (Tribunales de Primera Instancia), Superior or Appeal Courts (Tribunales Superiores). As a rule, judicial decisions may be appealed to a higher tribunal, but cases may not be heard in more than two courts.
Recent innovations have been the introduction of a Justice of the Peace (Justicia de Paz) Network and reforms to the criminal procedure scheme. The former seeks to alter the way of bringing about the resolution of conflicts and controversies arising in local communities by means of mediation, if possible, or by determining equity when the parties specifically request it or under certain circumstances established by law.
The latter entails the establishment of a new accusatorial system (involving active parties contesting with each other) as a substitute for the traditional inquisitorial system (underscoring the role of the judge as the decision-maker throughout the trial). Other new features are tentative steps toward the participation of citizens as lay judges and as jurors.
Other actors in the judicial sector are: the Prosecutor General, who provides opinions to the courts on prosecution of criminal cases and brings to the attention of the proper authorities cases of public employee misconduct and violations of the constitutional rights of prisoners or accused persons; the Ministry of Justice and Internal Affairs, which oversees the prison system and manages the Bureau of Intelligence and Prevention Services (Dirección de los Servicios de Inteligencia y Prevención or DISIP), the national intelligence agency of Venezuela, and the organ devoted to the scientific investigation of crimes (Cuerpo de Investigaciones Cientificas Penales y Criminalisticas a.k.a CICPC); and the Executive Office of the Magistracy (Direccion Ejecutiva de la Magistratura a.k.a DEM), which supervises the lower courts as well as the selection and training of judges.
Besides the traditional branches, the 1999 Constitution creates two additional branches of the Federal government--the citizen and electoral branches. They are embodied by the Republican Moral Council and the National Electoral Council respectively.
The Office of the Prosecutor General, the Office of the Defender of the People, and the Office of the Comptroller General are the three entities comprising the Citizen Power. They have a crucial role to play vis-à-vis adherence to the rule of law by governmental officials at all levels and, for that purpose, are charged with preventing, investigating, and punishing administrative irregularities. The three officers heading these institutions are elected by Congress for a 7-year term.
Office of the Prosecutor General ("Fiscalia General de la Republica") - This office in charge of public prosecutions (“Ministerio Público”) is an autonomous and hierarchical organization. It belongs neither to the Executive Branch nor to the Judicial Branch. The 1999 Constitution confers upon it an independent role so that it can better perform its functions as guardian of constitutional rights and liberties, democratic principles, public interests, and the rule of law in general. Its head is the Prosecutor General of the Republic ( “Fiscal General”), who is designated for a seven-year term and is charged mainly with prosecuting crimes and representing the peoples’ interests in in those cases in which no initiative on the part of a party is required to start or continue such prosecution. The Prosecutor General shall also file any appropriate action to hold liable public officials who have incurred civil, labor, military, criminal, administrative or disciplinary liability in the course of their official duties.
Office of the Defender of the People or General Ombudsman (“Defensoria del Pueblo") - This entity is an independent body created within the sphere of the National Assembly and operates independently without receiving instructions from any authority. It may take cases against the Government either on its own initiative or at the request of any third party. The services provided to the public are free of charge. The Defender of the People is appointed (and may be removed for cause) by the National Assembly with the vote of two-thirds of its members and shall hold office for a single seven-year term. The mission of the Ombudsman is the defense and protection of human rights and other liberties and interests protected under the Constitution and the laws, in the face of deeds, acts or omissions of the administration
Office of the Comptroller General (Contraloria General de la Republica) - The Comptroller General is appointed for a seven-year term by the National Assembly. This officer shall be in charge of supervising the management and auditing of revenues, expenses, public and national property and transactions of the centralized and decentralized public entities, whatever its forms of organization may be, as well as of other branches of government. Like the other entities of the citizen power, it enjoys operating, administrative and functional autonomy. It does not co-administer the public sector; it assesses facts, acts, and documents only after the organizations to be audited have finished their accounting exercises. Its main task is the approval or rejection of the revenue and investment accounts of public funds, the opening of investigations into irregularities, and the application of measures and administrative penalties as appropriate. The Comptroller General shall call on the Prosecutor General to file the legal actions that may apply.
In addition to fulfilling their specific functions, these bodies act collectively as the "Republican Moral Council" to submit reports about their activities to the National Assembly and play an educational role vis-à-vis the defense of civil virtues and democratic principles.
The "Electoral Power", otherwise known as the National Electoral Council, is responsible for organizing elections at all levels. Its members are also elected to 7-year terms by the National Assembly. The electoral power is exercised by the National Electoral Council as the governing body, and its subordinate entities: the National Board of Elections, the Civil Status and Voter Registration Commission, and the Commission on Political Participation and Financing.
Venezuela's legal system has a legislative origin, grounded on "written law" (civil law), as opposed to the "common" or "judicial" law, which is the basis for American, English and Canadian legal systems. As a civil law jurisdiction, it has its roots in Roman Law and is heavily influenced by the French (Napoleonic Code) system and the Italian and Spanish legal traditions, which established written codification of its laws. As systematic sets of rules pertaining to a specific subject-matter, Codes thus emerged not long after the country became an independent nation. A code of judicial procedure (both civil and criminal) was the first to appear in 1836. Internal conflicts prevented the enactment of other codes until 1862, when the commercial code was promulgated. It was soon followed by a Civil Code and a Code of Civil Procedure in 1863. The first Code of Criminal Procedure appeared in 1873. As their models changed, all these codes underwent significant reforms during the following decades and throughout the twentieth century, to benefit from the developments occurring in Europe and other Latin American countries.
In recent decades, the work of legislative commissions has played a crucial role vis-à-vis code modernization. Important legislation has thus become more responsive to social needs. The changes have been more significant in the areas of criminal law and procedure, as recent code amendments attest.
Nowadays, the major codes comprising the basic legislation of Venezuela are the following:
Civil Code (1982); the scope and coverage of the Civil Code are extremely broad. Governs contracts, torts, property, obligations, capacity of persons, marriage, divorce, paternity, guardianship, secured transactions, and succession.
· Commercial Code (1955) - Regulates commercial transactions and entities, negotiable instruments, and bankruptcy.
· Criminal Code or Penal Code (2000) - Establishes the criminal offenses which are punishable by law.
· Organic Code of Criminal Procedure (2001) - Defines the procedures that are to be followed before the criminal courts.
· Code of Civil Procedure (1986) - Defines the procedures required to litigate before the civil courts.
Of particular importance to business is the Commercial Code. For all matters not resolved by the Commercial Code, the provisions of the Civil Code shall be applied.
As a rule, codes are organized into books, titles, chapters, articles and sections. Titles are subdivided into chapters, which are sequential within their respective title only. Chapters are further subdivided into articles, which are sequential throughout the code. Each article in the code gets a unique number. All one needs to find a particular article is its number, and not the book, title and chapter numbers.
The quintessential source of Venezuelan legislation (in the widest sense of the word) is the Official Gazette (Gaceta Oficial) published since 1872. Regular issues are released daily (except Saturdays, Sundays, and holidays). Special issues (including long statutes or regulations, codes, supreme tribunal decisions, etc.) are released sporadically. Laws do not have reference numbers.
The best private compilation of laws and decrees is the Ramírez & Garay Legal Gazette (Gaceta Legal Ramírez y Garay) published since 1958.
State laws are published in the Gacetas Oficiales (Official Gazettes) of those entities, and municipal ordinances are published in the respective Gacetas Municipales (Municipal Gazettes).
Official collections of historical value are the following:
A good number of Venezuelan codes and laws have been translated into English. Most of them are available in print. The following is a partial list.
A few items are available online:
A few words about the value of jurisprudence in Venezuela are in order. In Venezuela, codification has not allowed case law to reach the same recognition it has within the Common Law system. An act or statute that contradicts a judgment may render it useless, and that legal provision, as long as judges do not believe that it violates the Constitution, is considered mandatory. The role of case law is thus minimized by the tradition of codification and regulation and limited to fill in legislative blanks.
Although the Venezuelan Supreme Tribunal is considered the supreme interpreter of the National Constitution and laws arising thereof, its decisions are not mandatory for similar cases. Even when judging similar cases, lower courts, by virtue of their autonomy, may set aside the Court doctrine, without infringing the constitution. That dismissal, however, shall not be arbitrary or groundless because although judges only decide the specific cases assigned to them, they must provide new arguments which justify disagreeing with what the Court has already decided in analogous instances.
Vis-à-vis the reporting system, all Supreme Tribunal decisions are officially published in the Forensic Gazette (Gaceta Forense), now in its second series (1953 to date). The first series covered the years 1949 to 1953. Between 1874 and 1949, the Venezuelan highest court opinions were published in the different reports reserved for its opinions. Since the court changed names several times, the publication titles were modified accordingly. Most of the time it was entitled Report of the Federal Court or Report of the Court of Cassation (Memorias de la Corte Federal y de Casación). Like in the case of the highest court in France (Cour de Cassation), the court’s name derived from its power to quash the decisions of all inferior courts.
Some Supreme Court decisions are published in special issues of the Gaceta
Oficial de la República.
All decisions from 2000 on can also be found online here.
Two private reporters are entitled Jurisprudence of the Supreme Court of Justice (Jurisprudencia de la Corte Suprema de Justicia) (Caracas, Samadi, 1994-to date) (also issued in CD-ROM or diskette) and Jurisprudence of the Supreme Tribunal of Justice (Jurisprudencia del Tribunal Supremo de Justicia (Caracas, Pierre Tapia, 2000-to date). Both are monthly publications.
There is no regular publication of lower court opinions. Summaries of the most important decisions were collected and published sporadically, between 1950 and 1998, by the Ministry of Justice, under the title Jurisprudence of the Courts of the Republic (Jurisprudencia de los Tribunales de la Republica).
Selected decisions of the entire range of Venezuelan courts are included in Ramirez & Garay Venezuelan Jurisprudence (Jurisprudencia Venezolana Ramirez & Garay )
(1960-to date), a monthly publication and in the Forensic Reporter (Repertorio Forense), a comprehensive quarterly (1966-to date).
As stated above, publication in the Official Gazette is a prerequisite to the enforcement of any regulatory instrument in Venezuela. A selection of the most important decrees and regulations is also published in the Ramírez & Garay Legal Gazette (Ramírez & Garay Legal Gazette) (1958-to date).
Of course, the internet is quickly becoming the medium of choice for the dissemination of these materials. Unfortunately, at this point, the presidential website does not include any legislation, executive regulation or presidential decree database.
Since the National Assembly regulates all areas of public administration, ministries and other agencies lack rulemaking power. As stated above, however, Ministries do issue resolutions on the matters of their competence. Each homepage of a Ministry site offers links to bodies of its own structure and to others which deal with the same subject. A few of these sites offer access to statutes, regulations, and resolutions in their respective specialties. The following is a list of those ministries currently offering access to those items:
Although this brief guide has been devoted mainly to primary sources of legal information, it will conclude with a short list of titles representative of the literature on Venezuelan law in English. It is important to point out that the apparent out-datedness of most of them does not affect the quality of the analysis and value as providers of an overview of the legal system (even today).