A legal and regulatory framework for civil society
Since 2002, different steps have been documented that have been taken by the Venezuelan government to impose restrictions on civil society rights. In that year, for the first time, the Inter-American Human Rights Commission included Venezuela in Chapter IV of its Annual Report as a state that deserved close attention, given situations “that seriously affect the enjoyment of fundamental rights enshrined in the American Convention or the American Declaration.” Since then, Venezuela has been included in Chapter IV every year, with the exception of 2004. As early as the 2002 Report, the IACHR was expressing its concerns regarding restrictions to rights for civil society:
“The Commission wishes to call attention to the importance of the concept of civil society being understood in democratic terms, without unreasonable exclusion or unacceptable discrimination. In this regard, the IACHR has had the opportunity to learn of several decisions of the [Venezuelan] Supreme Court of Justice that have laid down a doctrine according to which non-governmental organisations that receive grants from abroad or whose boards of directors include foreigners or religious men or women, are not part of civil society, and therefore would be excluded from the right to participate in the Nominations Committees provided for in the Constitution for selecting the persons for the organs of the Citizen Power, the Electoral Power, and the Supreme Court of Justice. Acknowledging the power of the State to issue reasonable regulations of the right to association in the context of a democratic society, the Commission calls attention to this jurisprudential thesis, which, applied in discriminatory terms against independent organisations, has an exclusionary effect that is unacceptable for the open participation of civil society in Venezuela.”
Based on this restrictive definition of civil society by the Supreme Court of Justice, organisations working in areas as diverse as HIV/AIDS and the promotion of government transparency have been prevented from participating as Venezuelan CSOs in international fora, such as ones held by the Organisation of American States regarding the Inter-American Protocol Against Corruption, and the UN General Assembly Special Session on HIV/AIDS.
2012 was a year in which restrictive conditions for the exercise of democratic liberties and the observance and enjoyment of human rights in Venezuela deepened. Restrictions were the result of the Venezuelan Government’s attempts to continue to impose the so-called Communal State —also known as the People´s Power State — on the legal order, state institutions and social life in general. It did so through the active cooperation of all national public powers — the Supreme Court, Parliament and the National Electoral Council, together with the Ombudsman’s Office. The Communal State aims at controlling all spheres of autonomous and independent expression, organisation and action of citizens.
The general context in Venezuela is one in which the rule of law has been unabashedly disowned by those in power over the past decade, causing a severe deterioration in the guarantees of human rights and democratic liberties enshrined in the Venezuelan constitution, as well as in the international covenants on human rights signed by Venezuela. The continuation of such practices can only lead to further weakening of public institutions and the closing of democratic spaces, as well as to attempts at concealing human rights violations.
The governing Venezuelan United Socialist Party openly intervenes in the management and decision-making of public institutions, serving the interest of the party, violating the Constitutional norm, which demands that “Public Officials are at the service of the State and not of any political partiality” (Article 145).
In 2012, the repeated threats by the Venezuelan government to withdraw from the Inter-American Convention of Human Rights became a reality: in September, the Foreign Affairs Minister finally formalised this decision in a letter sent to José Miguel Insulza, Secretary General of the Organisation of American States.
In 1999, through the leadership of then President Hugo Chávez, a Constitutional Assembly reformed the Venezuelan constitution. The new text was approved by popular referendum in December 1999. The fundamental principles, that defined Venezuela as a social and democratic state, based on the respect for human rights and guarantees of justice, as well as the chapter on human rights, were considered among the most advanced compared to constitutions around the world. Venezuelan CSOs participated enthusiastically in consultations to write the new constitution and provided important recommendations that were included in Title III: on Human Rights and Guarantees.
Unfortunately, as the years went by, the government deviated more and more from the constitutional path. When President Hugo Chávez was re-elected in 2006 for a new six-year term, he proposed a new reform to the constitution. The 67 articles to be reformed — out of a total of 350 — included a severe weakening of and threats to the guarantees of protection of human rights such as non-discrimination, freedom of association and participation, freedom of expression and access to information, labour rights and the right to property.
The proposed reform was rejected by a popular referendum in December 2007. However, President Hugo Chávez, after acknowledging defeat, expressed a position that nothing prevented him from carrying through these measures via legislation.
In general, three areas of political changes have challenged the constitution and affected the free and autonomous organisation and expression of civil society in the current situation in Venezuela:
- The government consolidated a body of legal instruments, based on the rejected constitutional reform, in order to exercise power through centralised, vertical and non-representative state structures, among which the most important was the Second Socialist Plan 2013-2019, upon which President Chávez based his electoral programme for the October 2012 presidential election. This plan complemented the approval of more than 60 laws affecting the jurisdictional reorganisation of Venezuela, alongside the redefinition of the social, political, administrative and economic structure of the country as a Communal State. Within this new legal framework there are laws that criminalise freedom of expression, penalising private media in particular, and laws on national security and anti-terrorism, which restrict civil liberties and citizens´ participation in public matters, in the name of the “political unity of the state” and “in defence of national sovereignty.”
The rights to equality and non-discrimination, to freedoms of association, expression and participation, as well as the people´s sovereignty, are among the constitutional principles and guarantees on human rights affected by the Communal State. Popular Power is the only means to access public goods: “sovereignty is exercised through Popular Power”, as stated in the Organic Law on Popular Power.
2. The lack of independence of judicial bodies has undermined the constitution and Venezuela’s international human rights obligations. The Supreme Tribunal of Justice (Venezuelan Supreme Court), through its Constitutional Court, which is the “highest interpreter of the constitution”, has produced a series of judgments convenient to the executive, based on ideological considerations and the “Principle of Cooperation among State Powers”. They have altered constitutional principles and purposes, instead of putting limits on and penalising abuses of power. In spite of its unconstitutional nature, the judiciary, the legislature, and even the Ombudsman’s Office, redefined their structures and plans in order to comply with the new postulates of the Communal State. They all supported the executive in decisions and actions —including the definition of a “new, critical vision of human rights”, one which weakened Venezuelans’ right to universal, timely and impartial justice, both nationally and internationally.
The governing Venezuelan United Socialist Party openly intervenes in the management and decision-making of public institutions, serving the interest of the party and violating the constitutional norm, which demands that “Public Officials are at the service of the State and not of any political partiality” (Article 145). The highest-ranking officers of the National ‘Bolivarian’ Armed Forces repeatedly, and unconstitutionally, expressed their allegiance to the “Bolivarian Revolution and its leader.” In an official act broadcasted nationally, President Chávez expressed that the Venezuelan Armed Forces “are Revolutionary, Socialist and Chavista,” even though the Venezuelan constitution states that “The Armed Forces are at the exclusive service of the Nation and in no circumstance at the service of any person or political partiality” (Article 328).
3. The Venezuelan government’s attempts to organise the ‘new society’ of the Communal State resulted in national public administration institutions in 2012 adapting to and complying with the new systems of the ‘People´s Power State’. In this ‘new society’, in order to be recognised as a valid interlocutor, or as an actor in public matters, and to be able to relate to state institutions and to participate in public policy definition and implementation or benefit from social programmes, it is mandatory to become a member of a People´s Power Organisation (PPO), as required by the People´s Powers Laws. The Communal State includes territorial, political, social and military spheres, and in order to belong to a PPO, members must comply with collective duties and responsibilities, and be committed to the “construction of a socialist society.” In order to operate, PPOs must conform to a series of regulations and receive the approval of the executive, through the Ministry of Communes. Since only PPOs are recognised as valid interlocutors to participate in public matters, any other type of organisation would lack such recognition.