Since 1999 we have had a new fundamental Law for the Nation, the Constitution of the Bolivarian Republic of Venezuela, approved by a Constituent National Assembly, which was represented by each of the current Creole political sectors and later submitted to the population via referendum that answered “yes” to it.
The central axis of the constitutional themes are social matters honoring people’s individual rights in their real universality, because they are beyond the traditional rights to life, free expression, private property, transit liberty, judicial defense, to also include the rights to health, to free education, to dwelling. These are the so-called second generation rights, or social rights of people. But this Constitution also includes the so-called third generation rights, i.e., environment and cultural rights.
The changes established in our Bolivarian Constitution places the accent on the social initiative — privileging it instead of the individual one — for the benefit of the national majorities.
The dogmatic support of this assertion appears in Articles 1 and 2 of our Constitution, in which Simon Bolivar’s doctrine is recovered in the first one and, in the second article, instead of quoting the so-called “State of Law” to limit the performance of governors and citizens, the fundamental law invokes the “Democratic and Social State of Law and Justice” doctrine. This means a great difference because, this way, Venezuela overcomes the liberal-democratic State to become a democratic and social State.
Let us see now how this conception is reflected in numerous articles of our Constitution, in order to prove its definitive vocation to privilege the social, solidary and collective matters upon individualism, selfishness and greed.
Article 112 establishes the private initiative, but immediately limits it, with the State guarantee to create a “just distribution of wealth”, and establishes its faculty “to promulgate measures in order to plan, rationalize, and regulate the economy”.
Article 114 states that illicit economy, speculation, hoarding, usury, formation of cartels, and other related delinquent behaviors, shall be severely punished.
Article 118 marks out that “the State shall promote and protect solidary associations, corporations and cooperatives in all their forms, including those of financial character, the savings funds, micro-companies, communitarian associations, and other associative forms designed to improve popular economy”.
Article 158 defines de-centralization as “a national policy which must deepen democracy, favoring an approach between power and population”, creating conditions such as allowing the exercise of democracy and efficient granting of State commitments. So, we can see that this concept has nothing to do with the bourgeois de-centralization which comes together with liberal democracy. According to the latter, de-centralization is a mere bureaucratic cession of central government attributions to local governments.
Articles 173 and 184 directly speak of the creation of local entities created in the counties to whom financial resources shall be assigned according to neighbors and common requirements, as though transferring the municipal services to communities and groups of neighbors. This will allow the creation of new management entities in order to develop auto-managing and co-managing projects. This is what we can consider to be the fundamentals of popular power expressed in community councils and communes.
Article 300 establishes the creation by the State of organisms to carry out social and entrepreneurial activities, in order to secure economic and social productivity of invested resources.
Article 307 declares that large land estates are contrary to social interest, and orders the rescue of idle lands fitted for agriculture. Moreover, it foresees land transfer to country-people. In a few words, it establishes a profound agrarian reform.
Article 308 says that the State “shall protect and promote small and medium-sized manufacturers, cooperatives, savings funds, family-owned business, micro-businesses, and any other form of community association for the purpose of work, savings, and consumption, under an arrangement of collective ownership, in order to strengthen the country’s economic development based on the peoples initiative”.
Moreover, the Venezuelan State also relies on two highly valuable instruments to reach and harmonize management and goals. According to Article 318, the Central Bank shall perform its functions in coordination with the State’s general economic policies. The State may also exercise the intervention and regulation of faculties allowed by Article 115, which enacts that expropriation can be performed according to public benefit or social interest.
This fundamental norm demonstrates that we do not have another liberal democratic Constitution such as the one drawn in 1961 by Congress, but rather a Constitution that strikes at the very heart of the capitalist mode of production, since it socializes the means of production and creates social, industrial, commercial, and agrarian collective property. Moreover, it allows a way to rescue lands and factories susceptible to produce more profit when socially managed or by the State, than when it is handled by individual owners. This is because the latter are exclusively guided by the profit rate resulting from the appropriation of the accumulated working force in the product and unpaid back to the workers.
Now, if the major premise establishes that the capitalist mode of production can only be substituted by the socialist mode of production, according to the proper circumstances of time and space; while the minor premise dictates that the changes in progress, based on and developed by the Constitution and other regulations, challenges the capitalist mode of production in economical sectors such as alimentary, construction, petroleum, mining, basic industries, agrarian production and cattle breeding; then the necessary conclusion of the syllogism is that in Venezuela, socialism is taking the place of capitalism.
So, then, it is not political rhetoric, it is reality. Historical time has matured in our country, because the necessary subjective and objective conditions have taken place to allow the transformations that start to be originated and assimilated by society. Thus, society has to adapt its behavior to them, with new customs and even removing old social habits as well as remembering those forgotten due to the hard toil represented by a permanent survival action in a society undermined by selfishness and individualism, in which every day a war occurred between those who possessed almost everything and those who had almost nothing.
According to the above stated, if –- as a consequence of the former -– the Venezuelan State develops a deliberate and planned action to direct society towards a Bolivarian and democratic socialism, it is also necessary to conclude that we now have a State policy and being the Judicial Power of one of the Venezuelan State powers, then, based in constitutional Article 136 — which establishes collaboration between powers — the Judicial Power is obliged to give its contribution for the efficient execution of this policy within the frame of its legal competence.
The cooperation of the Judicial Power in order to collaborate with the development of socialist policies according to the Constitution and laws, is materialized by the professional behavior of judges, secretaries, constables, and assistant personnel.
As in the past, under the domination of liberal constitutions regulating the so called State of Law, the Court of Cassation, the Federal and Cassation Court, the Supreme Court of Justice, and other successive historical tribunals, were dedicated to defend the liberal-democratic structures and fought with their rulings those people pretending to subvert this order in whatever competence, was it labor, criminal or civil. In the same way, this Supreme Tribunal of Justice, and all the other courts of the Republic, must severely apply the laws in order to sanction behaviors that go against the construction of Bolivarian and Democratic Socialism.
The judges must always remember that laws are not entities preserving a perennial concept of justice. It is obvious that we are referring to laws as conceived by the Ius naturalism. More than an abstract value, justice seems to be –as though as love- a sentiment. Plainly, there are immanent sentiments which allow us to recognize when there is justice or not, especially with the perception of an injustice that’s being committed, because this is generally the first thing we can appreciate. Ernesto Guevara de La Serna, “the Che”, said it quite clearly, when answering someone who asked if they were family related since they had the same surname: “I do not know if we belong to the same family, but if you tremor with indignation every time an injustice is committed in the world, we are comrades”.
Maybe, yesterday’s fair law is not today’s just law, because the circumstances which propitiated its promulgation are not the same. We have a new Constitution and a new born legality. This will allow the Constitutional Chamber of our Supreme Court to void and un-apply legal and regulating norms not derogated yet by new laws, but colliding with the Norma Normarum. Our law, alive and in progress, is running by legislative and jurisdictional means.
On the other hand, we must also say that law is not a form which, once produced, is endowed per se with justice, as a perfect mold, as suggested by the Ius positivism. The characteristics of a case, provided by the process of preliminary investigation, must be essential when judging the behavior according to the written rule, but it is also necessary to complement and enlighten the cause, taking into account the circumstances of the environment in which the facts happened. These observations are the communicating vessel between the judge and the reality that whirls around the origin of the cause and its consequences, more than the particular case itself. This is why we judges must be well informed, usual readers and studious of laws, jurisprudence and social reality. It is unforgivable if any of us is not able to consider the social importance when judging cases relating to narcotics trafficking, terrorism, corruption, or subversion, for example.
We have advanced a lot, when comparing the actual performance of the Judicial Power with its decadent behavior during the IV Republic. During those days, the Judicial Power was infiltrated and degraded by judicial tribes and mafias. This does not mean there were no honest and dedicated judges, there were indeed, but very few. Let us remember the initial days of the electoral triumph in 1998, when a national journal published a full page with a large list of cases carried on by well-known law firm with an Anglo-Saxon name and settled in Caracas. All the cases appeared in the bureau of the President of the Civil Chamber of our Supreme Court of Justice who took the cases to produce a ruling project, although the chamber had three more members. This same lawy firm also controlled superior and instance judges. The dissonant commentaries of numerous lawyers from Caracas Forum are surely still vibrating in our ears. And we know they were not the only ones. Other similar lawyer’s cabinets existed, acting under such names as David, Borsaline, Damascus, and did exactly the same.
So, without any doubt, we have advanced a lot. Nevertheless, our Judicial Power still has a great deal of undone tasks in order to reach the necessary internal development to perform efficiently its mission to administrate justice according to written laws, but also democratic, authentic social inspiration and un-equivocal example of ethics. We must dedicate ourselves to this task with eagerness and devotion. We also must provide whatever is needed to offer juridical refresher courses in order to expand law knowledge, to enlarge the adoption of information processing techniques to allow the judges to advance toward a universal, democratic, brief and transparent administration of justice. And also, we find that it is indispensable to have constant programs of Bolivarian and socialist ethics for judges, secretaries, constables, and assistant personnel. Likewise, we must strengthen vigilance and control, and process the claims proceeding from the social comptrollership; also intensify a managing capacity that will allow us to preview possible dangers and problems, so we can foresee their negative effects. Those are some of the purposes which must occupy our attention from our high and honorable position as Justices, no matter which is the internal position we hold.
Taken from the Speech of Order delivered in the Ceremony of the Judicial Year Opening of 2011, in the Supreme Tribunal of Justice. Caracas, Bolivarian Republic of Venezuela.