Venezuelan Constitutional Law: Principles and Analysis

Posted on Dec 9, 2024 in Law & Jurisprudence

Venezuelan Constitutional Law: Principles and Analysis

Item 1: The Existential Condition of the State

Analytical Determination of the State of Knowledge

Territory

• Island Territory
• Mainland Territory
• Fluvial Territory
• Lake Territory
• Floating Territory
• Territorial Sea
• Maritime Contiguous Zone
• Exclusive Economic Zone
• Continental Shelf
• Airspace
• Outer Space

Population

• Town
• Nation

Government

• Executive
• Legislative
• Judiciary
• Citizen
• Electoral

Territory: It is the most visible part of a State, made of borders, islands, lakes, and rivers. (See Section 11 of the Constitution – What corresponds to our territory)

Floating Territory:

• Vessels or aircraft in civil war.
• Military ships and aircraft are Venezuelans wherever they are.
• Trade ships and aircraft are governed by the country where they are located.

Population, People, Nation

• Nexus: People that join the man inside the territory.
• Relationship of subordination to the territory.
• Duties and Rights.

Nation

Territory, territorial sea, contiguous maritime zone, exclusive economic zone, continental shelf, outer space.

Territorial Sea

Article 9. The territorial sea has, throughout the mainland and islands of the Republic, a width of twelve nautical miles (12 NM) and is usually measured from the lowest tide line, as shown by the appropriate sign in large-scale charts officially published by the National Executive, or from the baselines established in this Decree with Rank, Value, and Force of Organic Law.

Innocent Passage of Craft

Article 15. Foreign ships enjoy the right of innocent passage through the territorial sea of the Republic. Innocent passage means:

1. Navigation through the territorial sea in order to cross that sea without entering internal waters or calling at a port of the system.
2. Proceeding to internal waters or ports of the Republic or leaving them.

Article 18. Innocent passage should be quick and uninterrupted. Stopping or anchoring is only permitted to the extent that such acts are incidental to ordinary navigation, are made necessary by force majeure or serious difficulty, or are realized for the purpose of rendering assistance to persons, vessels, or aircraft in danger. Foreign fishing vessels during their passage will keep the gear, equipment, and other fishing gear in a manner that prevents its use. In the territorial sea, submarines and other underwater vehicles must navigate on the surface and fly their flag.

Warships

Article 27. Foreign warships may sail or stay in internal waters and ports of the Republic, with prior authorization of the National Executive body of the Ministries with responsibility for foreign affairs and defense.

Contiguous Maritime Zone

Article 43. For the purposes of maritime surveillance and safeguard of their interests, the Republic has, adjacent to its territorial sea, a zone extending up to twenty-four nautical miles (24 NM), counted from the lowest tide lines or lines of base from which the territorial sea is measured.

Exclusive Economic Zone

Article 45. The exclusive economic zone extends along the mainland and islands of the Republic, at a distance of two hundred nautical miles (200 NM) measured from the baselines from which the breadth of territorial waters is measured.

Continental Shelf

Article 56. The continental shelf of the Republic comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of two hundred nautical miles (200 MN), measured from the lowest tide line or from the baselines from which the extent of the territorial sea is measured, where the outer edge of the continental margin does not reach that distance.

When the outer edge of the continental margin exceeds the distance of two hundred nautical miles (200 MN), the law establishes that border, which will set the limit of the Continental Shelf in the international area of the seabed and ocean floor, under international law.

Insular Area

Article 64. The insular space of the Republic comprises the archipelagos, islands, islets, cays, and the like situated or emerging, from any cause, in the territorial sea, which covers the continental shelf or within the limits of the exclusive economic zone, as well as marine and submarine areas that have been or may be established.

Territorial Analysis of the Venezuelan State

MN: Milla Náutica / Nautical Mile: 1,852 Mts.

Power

• Executive: Executive Vice President, Ministers
• Legislative: National Assembly, CRBV Arts. 136 to 140
• Judicial: Supreme Court, Lower Courts
• Citizen: Republican Moral Council of the Republic, Attorney General, Comptroller General of the Republic
• Electoral: Ombudsman, CNE

Power: Order of the population, the territory. Legal System. It is the rule of law that will give some way of procedures that will govern the territory.

Item 2: Classification of Persons

Natural and Legal Persons

Article 15 – Civil Code: People are natural or legal persons.

Article 16 – Civil Code: All individuals of the human species are individuals.

Article 19 – Civil Code: They are legal entities and therefore are legal persons and therefore capable of obligations and rights:

No. The nation and the political entities that compose it;

2 º The churches, of whatever creed they are, the universities, and in general all moral beings or public bodies;

3 The associations, corporations, and foundations of lawful private character. Personality is acquired with the protocols for its charter in the registry sub-office of the Department or District in which they were created, which will file a true copy of its Statutes.

The charter states: The name, address, purpose of the partnership, corporation, and foundation, and how it will be managed and directed.

It also formalizes, within fifteen (15) days, any change in its statutes.

Foundations can also be established by will, in which case they will be considered in legal existence from the granting of this act, provided that after the opening of the estate, the requirement of the respective probate will be met.

Civil societies and businesses are governed by the laws that concern them.

State Person – State Power

State Power, State Person

The State acts as power when exercising functions of empire, the power of magistracy, when exercising authority over the citizen. (Administrative Court, Constitutional Chamber TSJ).

The State acts as a Person: When management commits acts that have effects on certain individuals in particular (contracts, leases, etc.) are called Acts of Management.

Privileges of the State as Person: (See National Public Finance Act)

• Against the State, there are no precautionary or preventive measures.
• State property cannot be leased, mortgaged, sold, etc.
• Courts or registration will provide free or collaborate with the State.

Item 3: Concept of Class of Bodies

Concept of State Agencies

Instruments or means by which a certain function is performed by state legislative bodies, executive bodies, and judicial bodies. It is the means by which the state uses to express its desire.

It means that the body should be written, who are the subjects, which is the body, and what are the ways in which the State expresses its will.

Classes or Supreme Constitutional Bodies

Depending on the Nature of the Owners

• Individual: Those who are represented by one person.

  Practical Example: Authority: Attorney General’s Office. / Person: Attorney General.

  Similarly, the governors, mayors, Defense, etc.

• Collegiate: Those who are represented by several people and therefore require a minimum quorum for decision-making.

  Practical Example: Supreme Court, National Assembly, Court Martial, National Electoral Council

Important: Supreme or constitutional bodies that are also Chartered.

Depending on the Nature of the Owners

They are classified into:

• Simple: Be they individual or corporate, they are indivisible units. (Most of the powers).

• Complex: These include a set of individual or corporate bodies, which under some aspects remain distinct, while others are considered as parts that go to form a single body. (Supreme Court of Justice – Legislative Branch).

Based on its Representative Character

• Representative Bodies: These are conditioning the exercise of the respective office of a prior process of investiture, or perhaps better, they are those whose owners are covered by collective bodies through election of the first or second degree, including: The National Assembly, President of the Republic, Members of Legislative Assemblies and Regional, etc.

• Agencies not represented: They are those who can exercise public office through a simple appointment as Ministers, Deputy Ministers, and so on.

Practical Example:

The President of the Republic is a constitutional body, a simple organism, an individual organism, and a representative body.

On the Sphere of Action

• Internal: Will of the organs inside the country’s borders.
• External: Organs that work outside the country (Foreign Policy) Embassies, Consulates, OPEC, etc.

Controlling Body

They just control the administration of the State, County, etc. They are mandated to ensure the regularity of the acts of working parts, both in terms of its legitimacy and sincerity.

Consulting Authority

They are the legal consultants within the bodies of the state. It is a consultative body. No decisions are taken or executed or made in any form expressions of will, if not intelligence in its opinions illustrate the criterion of working parts.

Item 4: Sovereignty as Rousseau

If we want the most important author of the three because currently we are governed by this school, Jean-Jacques Rousseau, Sovereignty is synonymous with the general will, while only the general will of the people can become law. This is indivisible and cannot be represented. Therefore, the sovereignty resides in the whole (the people as a whole) cannot be divided into parts (such as power) and even less still be represented by an elected parliament (because this way the men would be free only when it chooses its Representatives legislators, but then again being a slave). In short, it was said that sovereignty resides in the people.

Internal sovereignty

Is inward, the demonstration of the territory. Authority dominated inside. It is exercised within the State.

External Sovereignty

International Relations, Status of equality between countries. Is exercised outside the territory. This gives us a position of equality with other countries.

Supranational organizations

They are international organizations like the UN, OAS, OPEC, etc. For international agreements (cultural, economic, or peace)

Item 5: Confederation of States

They were free and independent but joined together to achieve a common goal, kept their integral personality, but each state was free to act independently of each other. Each state has its own constitution, ruling, and its own legal system.

Federal State

It is a state where a superpower or super-state is above the Member States.

Super Power. 5 Powers of the Central Power. Case of Venezuela.

Importance: The only way you could rule that allows the participation of all members of the State.

The Federal State of excellence is the United States.

Venezuela is transformed into a federal state in the constitution of 1811 and remains in Article 4 of our current constitution.

The Central Powers (The Federation) is on the Member States.

Relationship of Coordination: States work jointly with the federation on matters that apply.

Inordination Ratio: The central power allows for the legislative function involving representatives of Member States of the federation. It is the power, authority, permission that gives the central member states to intervene in the legislation it is for the central power. The case of the National Assembly consists of members from all states.

Item 6: Direct Democracy

It is direct face-to-face. It originated in Athens, Greece, where philosophers gathered in the squares and deliberated, philosophizing about the best form of government, etc. Direct democracy occurs when there is a meeting of people who can speak in full.

Representative Democracy Art. 5

The inhabitants of a country, we choose our representatives, and usually, this act is exercised through voting. People’s Will. It is democracy through the vote to choose who will be or exercise the functions in our country. Representative for the popular will.

Separation of Powers by Montesquieu and its Relation with Article 136 of the Constitution.

Montesquieu: He said that every branch of government has its own functions and must keep a balance between them, which gave us an assurance to us that power official. That it was necessary that there was a separation of powers balance of power where a power to stop any other power. He said there are three branches: Legislative, Executive, and Judiciary.

Venezuela Government Division with Presidential System and Powers.

CRBV – Article 136

Public power is distributed among Municipal Power, State Authority, and National Power. National Public Power is divided into Legislative, Executive, Judicial, Citizen, and Electoral.

Each of the branches of Public Power has its own functions, but the bodies which must cooperate with each exercise in the attainment of the objectives of the State.

Item 7: Contributions Spanish, English, and French to Modern Constitutionalism

Spanish posts:

Covenants or agreements were solemn acts between the King and subjects. Covenants of honor to be fulfilled by the King and settlers.

The most important contributions were limited to so-called privileges which consisted of pacts or agreements between the King and the people through which municipalities became certain territories.

English posts:

The parliamentary system, consisting of 2 chambers: the Lords and the Commons. The upper house is called the House of Lords, composed of lifetime and hereditary nobility, and the lower house is called the House of Commons.

French posts:

For the first time, people rise and achieve a Constitution.

The French Revolution and Constitution proclaim a solemn commitment to the rights of man. The principles of national sovereignty.

• The conception of constitutional law in codified form as it is known today.
• Includes liberal and democratic elements with firm foundations, popular generals, from a constituent power.
• The Declaration of the Rights of Man and Citizen.

Item 8: Constitutional Law

It is a branch of the internal public law which aims to study the legal norms that establish the organization of government, the powers of its organs and its proper functioning, and the system of guarantees and the enshrinement of human rights as limitations on public powers against the citizen.

Constitutional and Legal Order

The legal basis of constitutional law is that underlies the supreme law of the state legal system, guarantees the validity of the state legal order.

Constitutional law examines the legal order established by the Constitution to be adjusted and submitted to the Constitutional requirements for being ground rules and constraints of any legal order. The constitution guarantees the legal order through its rules and bodies for that purpose.

The rules are the law of the State must comply in all respects to the constitution, being superior to those rules, are rules of conduct or organization are subject to constitutional order.

Item 9: Concept General Constitutional Law

It is the student of the positive law of various states in summary form in its entirety and its general principles, aims to study the legal rules relating to the political authority so universalized, excluding what singles out the laws and taking only usually common to all jurisdictions.

Rational Normative Concept

Exclusively important reason is to make a constitutional text. The life of the state is locked in a constitutional text for this remedy in a constitutional text. Proponents of this approach focus on the planning of a political life. Because in the life of a state is always going to clarify the legal rules to ensure legal certainty and must be predetermined standards or predeterminadotas. And these rules should be directed to the individual needs satisfaction general and necessarily the reason is that going to happen. Streamlining policy, you must have predetermined and predetermined rules, the constitution is universal.

Traditional History

A Constitution is given a historical formation. The Constitution is a complex policy rules to ensure a current adverse estado.Es rational policy, believe that the most important is the tradition of the people.

Sociological

Reason is the use of the custom and practice, what matters is the duty now rests as the present constitution so that each must have its own structure. That each nation must have its own constitution. Is inimical to sound policy and the current traditional historical, every constitution must adapt to modern society.

Item 10: Constitution and Formal Material

The Constitution Material:

Is one whose meaning refers to the content of this, of constitutional law. Can be written or customary, but must be the set of guiding principles that structure and order constitutions the State.

Constitución Formal:

Is one that meets for processing forms and effects of legal technicalities. Meets all requirements normally required by the constitution itself can be flexible constitution and rigid constitution.

Constitution as Origin

The Constitution as its Source:

1 .- Granted:

The king granted certain freedoms, certain rights to certain benefits to people or benefit the king gave the citizens living in that Kingdom took off the King of such executive legislative powers. Example. Benefit to create gave their cooperatives. Rights and duties that were was the king and will be granted to citizens.

The king had the word and was respected by the monarch.

They are graceful and unilateral concessions, which makes the King for the people and where no council or deliberative body has taken any part, even though they always respond to public pressure.

2 .- Covenants:

These covenants were influenced by the honor

They are the product of an agreement between the King and a People’s Assembly representing the people of the Kingdom. It is a bilateral pact that initiates the transition between the monarchy and the exercise of popular sovereignty.

3 .- Imposed:

As if Venezuela. With written constitutions hard as the constitutional text. Says make changes as a van and these is for everyone who occupy in our country.

This is the conception of modern constitutions, in the sense that once enacted, promulgated, and published, they are binding for all inhabitants of the Nation. Reflect the principle of national sovereignty.

Technical Constitutional

Constitutional Technique:

1 .- Adaptation to institutions: Should be aimed at governing the coexistence of the state, against their rulers and the governed. With the governed and all between them.

Should have policies and determine determinants the political, economic, and social. And achieve happiness of all citizens.

2 .- Stability: Is that to be rigid and permanent stay in time. The constitution must be strict, rigid, supreme, and permanent.

3 .- Flexibility: Power matching an act now to be on the citizens. To enable the reception of new ideas, the admission of new trends, to bring its laws to modern social and political realities of each country.

4 .- Fundamentalism: Must have the constitutional principles and fundamental principles of law and basic rules of law and develop other laws allow those fundamental principles.

You must have the right principles or bases, basic rules of law, fundamental principles of law for the protection of the rights and duties of citizens.

5 .- Caution: Be wise because the constituent to be located in a medium should be at the post of judge and constituents. Located in the reality in which the constitutional legislator to see if this rule is easy to apply good or is wise in good health.

The constituent should be located within the reality for which it is legislating and deciding in a fair manner so that the Constitution required to achieve permanence. Prudence is to discern good from evil, either to follow or run from it.

6 .- Style: Clear and Precise: It should be clear so that you read it to understand. Should not be concise about words in the text but do not miss.

Must be understood by everyone without difficulty that not on nor lacks nothing. To be clear that you understand and have the consent for understanding. Consists. Short and precise.

7 .- Constitutional Hermeneutics: The science of interpreting the causes of things, see that it is the art of discovering things.

Discover the science of the meaning of things is the art of interpreting see that it is.

Interpretation of the Constitution

Authentic Interpretation:

It is that which comes from the laws emanate from the legislature from the standpoint of constitutional law.

Where is the interpretation of law arising out of the legislative power to achieve a correct application from the point of view coming constitutional law that where emana. But unless such interpretation is reformed prior to that is published

Are legally Legal Interpretation:

It is the coming of the judiciary by the judges is the coming of the sentence.

Interpretation of Doctrine:

It’s done by the lawyers, is an interpretation being made by scientists of law is also called acute interpretation and longer one. Based on arguments investigations. May be analogous.

What does the Constitution of Venezuela?

Is written has chapters, titles, is 350 articles, is dogmatic organic is a part is that this transitional has codified final disposition. Have duties, rights, guarantees, is a constitution that is more rational than historical traditional rules. Allowing some flexibility within the constitutional context. Has two aboriginal rights and the rights of environmental

• Rigid
• Flexible
• Written
• Imposed
• Has a dogmatic part
• You have 350 items
• It has chapters.
• You have preambles.