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This book is a collection of all the Essays of Professor Allan R.
Brewer-Carias on the Venezuelan Authoritarian Government and the
Demolition of the Rule of Law, written during the past fourteen
years (1999-2014), in which he has analyzed not only the most
important aspects of Venezuelan constitutional law provisions
according to the 1999 Constitution, but also how the authoritarian
government installed in the country since its enactment, has ruled
it against the rule of the Constitution, subverting the democratic
regime from within by using its own institutions and tools. The
process began with the convening of a Constituent Assembly in 1999
against the provisions of the then in force 1961 Constitution,
seeking to supposedly impose people's sovereignty over the
principle of constitutional supremacy. What resulted was the
intervention and takeover of all branches of government, being the
Constituent Assembly the main tool used for assaulting the State's
powers, imposing in the country an authoritarian, centralistic and
militaristic government, eliminating, any sort of check and balance
framework, subjecting the Judiciary to strict political control,
and consequently, dismantling the rule of law. In addition, the
Constituent Assembly assured that the main provisions of the new
Constitution, particularly on the decentralized form of government,
the principle of separation of powers, the independence of the
judiciary and the representative democratic government, were to be
suspended in their effective enforcement due to an endless
transitional constitutional regime it imposed. It was the same
"formula" of convening Constituent Assemblies departing from the
Constitution then in force, that a few years later was also applied
in Ecuador (2007), and ten years later was tried to be imposed in
Honduras (2009), in a failed presidential attempt that in that case
the Supreme Court declared unconstitutional. The idea, in any case,
continues to be a recurrent one that in many countries has been
proposed. The consequence of that process in Venezuela has been
that since the election of the late President Hugo Chavez Frias in
December 1998, whose only electoral program and proposal was to
convene a Constituent Assembly, the country, formerly envied
because of its democratic tradition and accomplishment during the
second half of the 20th century, suffered a tragic setback
regarding democratic standards, experiencing a continuous,
persistent and deliberated institution demolishing process and
destruction of democracy, never before occurred in the
constitutional history of the country. At his death, and after
fourteen years in power, the main political legacy of Chavez was no
other than a country lacking the most essential elements of
democracy as they are defined in the Inter American Democratic
Charter, namely the assurance of the access to power and its
exercise subject to the rule of law; the performing of periodic,
free and fair elections based on universal and secret vote as an
expression of the sovereignty of the people; the plural regime of
political parties and organizations; the separation and
independence of all branches of government, and the respect for
human rights and fundamental freedoms. All this process is analyzed
in this book, for which purpose the original text of the thirty
Essays it contains, written and many of them published in different
moments and occasions during the past years, has been preserved, so
despite the repetition of some ideas and references, they remain as
a testimony of the ideas expressed at the time when they were
written, and on the course of the different events that led to the
complete destruction of the constitutional rule and of the
democratic principle in the country."
This book deals with Judicial Review, as the power of judges to
control the constitutionality of State acts, particularly of
Legislation, which not only is the most important subject of
contemporary constitutional law, but also the most distinctive
feature of all democratic constitutional systems. Such power is the
consequence of the consolidation in contemporary constitutionalism
of three fundamental principles of law: first, the existence of a
written constitution or of a fundamental law, conceived as a
superior law with clear supremacy over all other statutes; second,
the "rigid" character of such constitution, which implies that the
amendments or reforms that may be introduced can only be put into
practice by means of a particular and special constituent process,
preventing the ordinary legislator from doing so; and third, the
establishment in that same written and rigid constitution or
fundamental law, of the judicial means for guaranteeing its
supremacy, over all other state acts, including legislative acts.
According to such principles, consequently, in democratic systems
subjected to the rule of law, the judges can have the power to
refuse to enforce a statute when they deem it to be contrary to the
Constitution, considering it null or void with inter partes
effects, through what is known as the "American model" or the
diffuse system of judicial review; or one particular Constitutional
Court or the Supreme Court of the country can be empowered to annul
laws considered unconstitutional, with erga omnes effects, through
what is known as the " European model" or concentrated system of
judicial review; with the possibility for both system to coexist,
through what is known as the " Latin American model" or the mixed
system of judicial review. These systems are analyzed in this book
from a comparative constitutional law perspective, a matter that
professor Brewer-Carias has been studying for the past decades, and
on which he has extensively published in books and articles, in
Spanish, French and English. But in addition, he has written many
works and essays in English, that have not been published up to
now, in particular for the preparation of Courses and Lectures he
has given as was the case of the Course of Lectures on "Judicial
Review in Comparative Law," he gave in the LL.M. Course at the
Faculty of Law, University of Cambridge, UK., in 1985-1986; and the
Lectures he gave on "Judicial Protection of Human Rights in Latin
America. A Comparative Constitutional Law Study on the Latin
American Injunction for the protection of Constitutional Rights
("Amparo proceeding")," at Columbia Law School in the City of New
York, in 2006-2008. The original versions of these Lectures are
published in this book, altogether with many other Papers, Reports
and Lectures he has given in the past years in various Universities
in the United States, analyzing from a comparative constitutional
Law perspective, the systems of judicial review in the world, and
in particular, in Latin America. The decision to publish this book
with the recollection of the original versions of all those works,
as the author has pointed out, has the purpose to assure that all
those materials won't be lost, and could be useful for all those
who have interest in these matters; being what they are: the
written work of a law professor, made as a consequence of his
research for the preparation of his lectures, not pretending to be
anything else.
Administrative Law has been a subject on which Professor Allan R.
Brewer-Carias has been working, writing and publishing during the
past fifty years, since his first book published in Caracas in
1964, on "The Fundamental Institutions of Administrative Law and
the Venezuelan Jurisprudence" (Las Instituciones Fundamentales del
Derecho Administrativo y la Jurisprudencia Venezolana, Universidad
Central de Venezuela, Caracas 1964). Since then, he has published
many books and articles treating matters of Administrative Law
mainly is Spanish, being this his first book in English on the
subject. Since 2005, after fixing his permanent residence in New
York and after accomplishing his work as Adjunct Professor of Law
at Columbia Law School where he thought a Seminar on
"Constitutional Protection of Human Rights in Latin America," he
has acted a Lawyer and Legal Counsel giving legal opinions on
Venezuelan administrative Law, being this book the result of all
his research for such purpose. Consequently, the reader will find
in this volume a very useful analysis of administrative law in
Venezuela, providing information on the country's sources of
administrative law, the organization of Public Administration, the
administrative action accomplished by its different organs and
entities in the national (federal), state and municipal levels of
government; the administrative procedures principles and the scope
of the principle of legality applicable to administrative action;
the use and enactment of administrative acts in order for the
Administration to decide on particular matters, and the use of
administrative contracts in order to associate private persons and
institution to Public Administration and public activities.
Thorough coverage by a local expert this book fully describes the
principal issues regarding judicial review of administrative
action, in order to annul illegal administrative act and to assure
the respect for the rule of law. In addition, the volume provides
specific information regarding important issues of administrative
law concerning the regime on restrictions of economic freedom and
of property rights, with special emphasis on the constitutional
means the State can use for its reservation of economic areas
(nationalization) and for expropriation of private property; the
regime of environment protection and land use, with particular
emphasis on matters regarding the oil and mining industries; the
regime of the protection and promotion of investments, with
specific discussion on the consent for arbitration in public
matters; and the regime referred to the legal status of
individuals, citizens and aliens. Details are presented in such a
way that readers who are unfamiliar with specific terms and
concepts in varying contexts will fully grasp their meaning and
significance. Its succinct yet scholarly nature, as well as the
practical quality of the information it provides, make this book a
valuable time-saving tool for both practicing and academic jurists.
Lawyers representing parties, with interests in Venezuela will
welcome this guide, and academics and researchers will appreciate
its value in the study of comparative administrative law.
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