1
Legal Nature of the Community
Councils in Venezuela
Naturaleza jurídica de los Consejos comunales en Venezuela
Andreina Campos López*, Mirtha López Valladares**, Luisa Gamboa Fereira***
*
Lawyer, Architect. Center for Business Studies
of the School of Economic and Social Sciences,
Universidad del Zulia, Zulia, Venezuela.
E-mail: andreina_27@hotmail.com
ORCID: 0000-0002-7790-0002
Google Scholar
**
PhD in Social Sciences, mention Management.
Center for Business Studies of the School of
Economic and Social Sciences, Universidad del
Zulia, Zulia, Venezuela.
E-mail: lopez_mirtha@yahoo.com
ORCID: 0000-0002-8993-7291
Google Scholar
***
PhD in Social Sciences, mention Management.
Center for Business Studies of the School of
Economic and Social Sciences, Universidad del
Zulia, Zulia, Venezuela.
E-mail: lgamboafereira@gmail.com
ORCID: 0000-0001-8424-996X
Google Scholar
Received: January 14, 2019.
Accepted: December 18, 2019.
Cite this:
Campos, A., López, M. and Gamboa, L. (2020).
Legal Nature of the Community Councils in
Venezuela. Espirales. Revista multidisciplinaria de
investigación cientíca, 4(33), 1-17.
Abstract
The 21st century is a historical milestone for new
ways of managing public affairs, as a result of the
political, social and economic transformations
that were generated in various countries in South
America, in which Venezuela is the protagonist with
the approval of the Constitution of the Bolivarian
Republic in December 1999; based on the organization
of society for participation in decision-making on
matters of collective interest. In this perspective, the
Community Councils arise. Therefore, they constitute
the interest of the investigation to characterize the
applicable legal regime in Venezuela, according to the
theoretical contributions and the institutional devices
that comprise them. It is a descriptive investigation,
with a documentary design. The ndings reveal: since
the constitutional precepts, regulations for community
organization and participation were created, referring to
the Communal Councils, which have been the subject
of discussion about the nature of their actions, based
on the legal nature; it is evident that its praxis responds
to features of a mixed legal nature, that is, constitutional
and community. It is concluded that the Communal
Councils must advance in the legal recognition of the
actions related to certain competences of the public
administration, to build the administrative and legal
bases for an innovative community development
community management.
Key words: Community Councils, participation,
community management, legal nature.
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DOI: 10.31876/er.v4i33.726
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Resumen
El siglo XXI es un hito histórico para las nuevas formas de gestionar
los asuntos públicos producto de las transformaciones políticas,
sociales y económicas que se generaron en varios países de América
del Sur, en donde Venezuela es protagonista con la aprobación
de la Constitución de la República Bolivariana en diciembre de
1999; fundamentada en la organización de la sociedad para la
participación en la toma de decisiones en los asuntos de interés
colectivo. En esa perspectiva, surgen los Consejos Comunales. De
ahí que constituye el interés de esta investigación caracterizar el
régimen jurídico aplicable en Venezuela, de acuerdo a los aportes
teóricos y de los dispositivos institucionales que los conforman.
Es una investigación descriptiva con un diseño documental. Los
hallazgos revelan: desde los preceptos constitucionales se crearon
normativas para la organización y participación comunitaria referidas
a los Consejos comunales, los cuales han sido objeto de discusión
sobre la naturaleza de su actuación en función al carácter jurídico;
se evidencia que su praxis responde a los rasgos de naturaleza
jurídica mixta, es decir, constitucional y comunitaria. Se concluye
que los Consejos comunales deben avanzar en el reconocimiento
jurídico de las acciones vinculadas con determinadas competencias
de la administración pública para ir construyendo las bases
administrativas y legales para una gestión comunitaria innovadora
del desarrollo de la comunidad.
Palabras clave: Consejos comunales, participación, gestión
comunitaria, naturaleza jurídica.
Introduction
In the context of the eighties, political and administrative changes took place in Venezuela
in the state apparatus, in order to promote the process of state reform, by the Presidential
Commission for State Reform (COPRE for its acronym in Spanish), with the purpose of
“bringing power” closer to the citizens, through the so-called process of decentralization
of competences. As a result of this reform, political progress was made with the popular
election of regional and local authorities; while, administratively, some public powers were
transferred from the national government to the regional and municipal government.
At the end of the nineties, changes to this conception of State reform began, in December
1998, with the holding of presidential elections, in which Hugo Rafael Chávez Frias was elected,
who promoted the formation of a Constituent Assembly for the creation of a new Magna
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Carta of the country, which was later approved in 1999, through an approval referendum by
the Venezuelan people as the Constitution of the Bolivarian Republic of Venezuela (CRBV
for its acronym in Spanish).
In the CRBV, structural changes are established in the conception of the State, the economic
model and Venezuelan society, with special attention, in the participation of citizens,
communities and other forms of organization of society for their intervention in the public
policies and management. Also, the possibility of creating open and exible participation
mechanisms is foreseen in order to promote the decentralization of powers from governments
to the different levels of government and, fundamentally, directly to organized communities.
In this constitutional perspective, on the participation in public management, the Community
Councils were approved as a form of organization of the communities, with the Law of the
Communal Councils of 2006, whose praxis in the different territorial spaces in the country,
were demanding the incorporation of management elements and the expansion of others
established in the aforementioned Law, also as a result of responding to the political and
economic reality of that time. From there, the Organic Law of the Communal Councils was
approved in 2009, which contains the institutional guidelines that constitute the platform for
community management; in addition, the creation and approval of a set of legal regulations
that support them.
In the dynamics of the management of the Communal Councils, actions of the spokespersons
take place, such as, acts, letters and records in the exercise of their functions as those
responsible for community management, which has been the subject of different legal
discussions, in particular, with the elements that categorize its legal naturalization, as well as
the appreciation of whether or not it has identity. Hence, the relevance of the investigation to
characterize the legal regime applicable to the Communal Councils in Venezuela.
Materials and Methods
Innovation in the management of matters of collective interest has been accentuated in the
last two decades, as a central theme in the formulation of public policies; the participation
of the society propitiates the development of a participative democracy, in this sense, the
present investigation is approached following the epistemic perspective of the Systemic
Interpretive Theory of the Organizations (Fuenmayor, 2001).
This epistemic perspective provided the cognitive platform to approach the different
perspectives on the legal nature of the Communal Councils in Venezuela, from the
hermeneutical method for the interpretation of the legal instruments that underlies the
actions of these Councils.
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The methodological intention is to reveal the features that these community organizations
congure, through the investigative path based on legal hermeneutics that outlines the
complexity of the different actions within the framework of the constitutional and institutional
guidelines, through the search for information in different legal documentary sources that
enable the reconstruction of community management knowledge.
That is why the research is based on the systematic review of legal and institutional
documents, containing the nature of community organizations in Venezuela; therefore, it is
categorized as a descriptive research that allowed the interpretation of key components that
categorize the legal nature of the Communal Councils, following the doctrine of law in the
country; with a documentary research design, since it is based on the collection, classication,
analysis and interpretation of information from secondary physical and electronic sources.
Based on this, the socio-historical context on which Venezuela has developed, the policy of
organizing the communities for their participation in public and community management
is described; as well as the different positions of theorists and jurists on the nature of the
actions of the management of the Communal Councils in order to interpret these positions,
according to the legal precepts and jurisprudence on the matter.
Finally, the interpretation of legal hermeneutics enabled the systematization of the
components of community management, through the cognitive legal and institutional
platform, in which the mixed legal nature of the Communal Councils is categorized.
Results
Socio-Historical Context of the Organization for Community Participation
In Latin America and the Caribbean, in the last two decades, most governments have
considered and implemented ways of managing the public, different from traditional
administration schemes with bureaucratic styles, by an inclusive and participatory
management model, through the formulation of public policies for the transformation
of society.
In Venezuela, since the beginning of the period of democracy at the end of the fties,
economic power groups had a direct impact on the different policies on public management,
which was incorporated into the guidelines provided for in the National Constitution —NC—
of 1961, which characterizes representative democracy. In terms of political participation, the
NC of 1961 only proposes the election of the national executive power, while, in relation to the
intervention in public decision-making by the communities, it is not considered.
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This perspective of public management was maintained until the end of 1980, in which
governments were losing legitimacy and society was sued and demanding greater attention
to their needs, which generated a set of political and social pressures, which led to the
national executive government approved the implementation of the State Reform process,
specically, in 1984, through the COPRE, based on the constitutional precepts of 1961.
This reform process is institutionalized with the approval on April 28, of 1989, of the Organic
Law of Decentralization, Delimitation and Transfer of Powers of the Public Power —LOD—,
in order to:
Develop constitutional principles to promote administrative decentralization, dene
competencies between the National Power and the States, determine the functions
of the Governors as agents of the National Executive, determine the sources of
income of the States, coordinate the annual investment plans of the Entities Federal
with which the National Executive performs in them and facilitate the transfer of the
provision of the services of the National Power to the States. (Art. 1)
On the other hand, in the framework of representative democracy, in 1989, direct and secret
elections were approved and carried out by the executive authorities of the governorates
and mayors in the country, that is, political participation. This led to reform regulations on
municipal governments. Specically, the Organic Law of the Municipal Regime of 1978 and
its Partial Regulation No. 1 of 1979 on Neighborhood Associations; in this sense, the approval
of the Organic Law of Municipal Regime of 1989 and, therefore, of Partial Regulation No. 1 of
1990 on the Participation of the Community is given.
Regarding this last regulation, the title of the same is modied. However, in the content of the
policy on participation, there are no articles about the direct intervention of the Neighborhood
Associations, as forms of organization of the communities. Furthermore, in practice they
were penetrated by the interests of the political parties in power in the government, which
further limited their actions as an instance of the community. Quijada (2004), point to this
appreciation of the role of the Neighborhood Associations:
Like the rest of civil society, they were subjected to the dominance and
management of the predominant political parties, such as Acción Democrática
and COPEI; since they dominated the political-administrative scenario, at the
different levels of power distribution in Venezuela, during the last three decades
of the National Constitution of 1961. (p. 2)
In practice, in this decade of the eighties in Venezuela, despite COPRE discourse, the legal
instruments approved did not establish mechanisms and spaces for the direct intervention
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of communities in matters of public interest, at different levels of government; as well as
through community management.
In December of 1998, with the victory in the presidential elections of Hugo Rafael Chávez
Frias, the creation of a new Magna Carta was promoted through the call for the formation
of the Constituent Assembly, which was in charge of the process of construction of the
precepts constitutional from the various proposals presented and discussed in public and
private spaces in the country; which were submitted to a referendum, held on December 15
of 1999 (López, 2001).
The CRBV of 1999 establishes a conception of the State, different from that foreseen in the
NC. Article 2 indicates:
Venezuela, is constituted in a democratic and social State of Law and Justice,
which advocates as superior values of its legal system and its actions, life,
freedom, justice, equality, solidarity, democracy, responsibility social and in general,
the preeminence of human rights, ethics and political pluralism.
This conception of the State, which connotes its democratic and social character of Law
and Justice, reinforced in the express values, such as, equality, solidarity, democracy, political
pluralism, among others, establish participation in the management of matters of public
interest without any distinction of persons. All of them form the basis for the formulation of
public policies in the different matters of competence of government entities; in this sense,
the CRBV, following López (2001), incorporated structural elements for the transformation
from a conception of representative democracy to participatory and leading democracy in
the different dimensions of the task of Venezuelan public management.
Based on these constitutional precepts, the Venezuelan State promoted a new conception
of citizen participation based on its intervention in decisions, execution, monitoring and
control, and evaluation of public policies; with the approval of instances of participation in
all levels of government, both for organized communities and for the integration of public
entities: Local Councils for Public Planning (municipal government), Planning Councils and
Coordination of Public Policies (regional government), and the Federal Government Council
(national government) (National Assembly of 1999, Articles 182, 161, 185).
It should be noted that, in the legal precepts of the creation of the Local Councils for Public
Planning of 2002, the foundations appear for the incorporation of organized communities
in matters of municipal public management, conducive to constituting the territorial area in
which they live people and, with it, the perspective of community management through the
creation of the Community Councils, later.
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In this legal context, the initiative to create the Communal Councils arises, as an instance
of direct participation of people in public management through community management;
by President Chávez, which was discussed by the different bodies with jurisdiction over the
matter and, nally, the Law on Communal Councils —LCC— was examined and approved
in 2006 by the National Assembly of Venezuela. Article 1 expresses as its object: “to create,
develop and regulate the formation, integration, organization and operation of the Communal
Councils and their relationship with the State bodies, for the formulation, execution, control
and evaluation of public policies.”
On the other hand, this public policy of organization of the communities, through the
Communal Councils, arises as a way to materialize the direct participation of the communities
in public management; given that the political context after the approval of the Local Public
Planning Councils (CLPP for its acronym in Spanish), extremely limited this participation,
through the non-conformation of these Councils, by some municipal authorities.
These incidences of legitimation by the public authorities and, from greater demands from
the communities to expand their participation in public affairs, from their praxis, led to reform
of the LCC, and even elevating in legal hierarchy as Organic Law of the Community Councils
(LOCC for its acronym in Spanish), in 2009, the purpose of which is expressed in article 1:
Regulate the constitution, conformation, organization and operation of the
communal councils as an instance of participation for the direct exercise of
popular sovereignty and its relationship with the organs and entities of the Public
Power for the formulation, execution, control and evaluation of public policies, as
well as plans and projects related to community development.
Likewise, a new conception of the Communal Councils is established:
Instances of participation, articulation and integration between citizens (male and
female) and various community organizations, social and popular movements,
which allow the organized people to exercise community government and direct
management of public policies and projects aimed at responding to the needs,
potentialities and aspirations of the communities, in the construction of the new
model of socialist society of equality, equity and social justice. (Art. 2)
The public policy of organization and participation of the communities constitutes an advance
in management innovation, following the terms expressed by Monsiváis (2013), who points
out that “to promote relevant public policies for democracy is precisely that of participation
in public policies” (p. 32). In this context of political innovation (López, 2008), the Communal
Councils appear as instances in which participatory and leading democracy takes shape,
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understanding participation as the meeting between the rulers and organized communities
in order to provide answers to matters of collective interest (Fadda, 1991).
Discussion
The Legal Nature of the Communal Councils in Venezuela
As it has been mentioned in the socio-historical development of the organization of
communities in Venezuela, the Communal Councils constitute forms of organization of
society for participation in public policy and management and, in particular, in community
management, which have marked a milestone in the construction of knowledge on the
management of public affairs, from the managerial practice of citizens, which has led to
continuous discussions on the nature of their powers, as well as the legal nature of their
actions; in correspondence, to the constitutional and legal postulates that support the
formation and management of the Communal Councils.
Hence, addressing the legal nature of the aforementioned Councils requires clarifying their
theoretical conception, which, following one of the classic authors of law, assumes that “the
law takes nature as what exists materially or as that which is actually conceived in social
valuation” (Estévez, 1956, p. 166). That is why, each Law, is the one that builds for each
institution, a structure, which, is known in the doctrine as the nature of the institution, that
is, legal nature. Based on this legal assessment and other legal acts, the legal nature of the
Community Councils is categorized.
From the perspective of Venezuelan jurisprudence, the legal nature corresponds when
decisions are taken, based on certain actions or acts that are executed by the Communal
Councils. The Second Court of First Instance in Civil, Mercantile, Transit and Agrarian Matters
of the Judicial District of the Vargas State, le 11852 on July 29 of 2011, performs an analysis
of the legal nature of the communal councils, in this express sense:
The administrative activity is formed by the set of acts, facts and omissions
displayed by the organs of the public power in use of the administrative powers,
however, according to the new constitutional guidelines, the provisions contained
in the Organic Law of Administrative Procedures are applied to persons under
private law invested with authority, to public companies operating in the private
sphere, and to private companies regulated by rules of private law that have a
public interest purpose.
As a result of the review of the aforementioned nal judgment, it is evident that the position
of that Court is that the acts of the Communal Councils are not properly acts of authority
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and, consequently, are not subject to the provisions on administrative matters and its legal
consequences, because it threatens the fundamental institutions of administrative law, since
acts of authority are carried out by entities of private law that exercise public powers to
satisfy general or collective interests.
Another position on the legal nature of the Communal Councils is the one expressed by
Henríquez (2007), who qualies them as “only community-based, not constitutional or
administrative in nature” (p. 91); whereas the author alleges that it constitutes a form of
organization of citizens living in the same locality, in the search to respond to common and
collective interests.
While, Martorano (2009), classies the Communal Councils of “mixed legal nature, identied
as an association of associations and a social network, which develops public purposes and
activities of community interest, based on the exercise of popular sovereignty and citizenship,
based on the rights of association and participation.” Both perspectives are distanced in the
legal nature. The rst one is conceived without an institutional foundation, while the second
one incorporates the social with constitutional bases.
Therefore, the perspective of Martorano (2009) has a theoretical and legal basis, within the
framework of the precepts established in the CRBV, fundamentally, in two articles 62 and 70.
Article 62, expresses that, all citizens:
They have the right to freely participate in public affairs, directly or through
their elected or elected representatives. The participation of the people in the
formation, execution and control of public management is the necessary means
to achieve the leading role that guarantees their complete development, both
individually and collectively. It is the State’s obligation and the duty of society to
facilitate the generation of the most favorable conditions for its practice.
While, article 70, establishes the means of participation and relevance through which citizens
participate in the exercise of their sovereignty, in relation to the formulation, execution and
control of public administration. There, the legislator leaves the possibility of other forms
of organization for citizens and communities; as long as they are based on the values of
cooperation and solidarity.
These constitutional postulates express the intervention of citizens for the construction of a
participatory and leading political culture, in which a new form of relationship is maintained
between Society and the Venezuelan State; subject, among other principles, to subsidiarity,
co-responsibility, social solidarity and accountability. These postulates coincide with that
stated by Martorano (2009), who categorizes them as mixed legal.
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However, to strengthen the criterion of the legal nature of the Communal Councils, it is also
pertinent to specify the term of legal personality; Flores (n.d.), institutes that legal personality
is the result of the synthesis of two elements, one material, which constitutes the substratum,
and the other formal, which reects the hallmark of the legal system.
Another perspective, in consideration to identify the legal nature, is the distinction between
person and personality when, since,
Although they are sometimes used as synonyms and are a consequence of each
other, the terms person and personality should not be confused. If a person is all
capable of rights and obligations, personality must be understood as the ability to
be a subject, active or passive, of legal relationships; you are a person; you have
personality. (Castán, 1943, p. 135)
For his part, Cabanellas (1993), denes the person from the natural perspective as “man
as a subject of Law, with the capacity to acquire and exercise rights, to contract and fulll
obligations, and to respond for his harmful or criminal acts” (p. 242).
Mora (2007), exposes a contrast between article 10 and article 20 of the repealed Law of the
Communal Councils of 2006, based on its precepts, the author points out that, this instance
of citizen participation, has to execute “a set of activities without legal personality, but in the
case of managing nancial resources, the law requires its members to form a cooperative
(which does have legal personality)” (p. 141).
Likewise, the author states that the Communal Council does not expressly acquire legal
personality in the Law of the Communal Councils of 2006, however, the characteristics
provided for regarding the scope of the competences constitute acts of authority and,
consequently, the spokesmen and spokeswomen must comply with the provisions regarding
administrative activity, and, therefore, respond to the legal consequences that this may entail
(Mora, 2007).
However, the author’s statement that the Community Councils do not have legal personality,
distances itself from the legal precepts in this regard, since, in the Law on Communal
Councils of 2006, in article 20, it expresses: “The registration of the Communal Councils,
before the respective Presidential Commission of Popular Power, endows them with legal
personality for all purposes.” Therefore, full legal personality is evident for their actions in
community management.
Of the arguments raised above, the position on the legal personality of the Communal
Councils is maintained in the approval of the LOCC in 2009, in which their legal personality
is further strengthened, meanwhile, the endorsement that require by the Ministry of Popular
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Power with competence in matters of citizen participation; likewise, that the spokespersons
have administrative responsibility, due to the fact that their powers give them an investiture.
This is established in article 17, numeral 2, which species the responsibility of registering
the Communal Councils before the Ministry of Popular Power with competence in matters
of citizen participation; that is why, complying with this formal registration procedure, which
even requires compliance with the Organic Law on Administrative Procedures; they acquire
their legal personality.
Therefore, it is evident that, currently, more formality has been demanded regarding the
requirements and formats established in the LOCC, for the registration of the same before
the competent Ministry with citizen participation, in order to give legal guarantee in its
constitution.
The Communal Councils constitute an instance of organization and participation of citizens,
whose legal nature is mixed, that is, constitutional and communal, since the essence of their
formation is to give power to the citizen (people), through the participation of citizens, organized
communities and other forms of organization of society, in public and community policies
and management (decision-making) as established in a minimum of 30 constitutional
articles. In addition, its legal basis in an LOCC on its conformation and operation.
Another foundation to the constitutional nature is found in Venezuelan jurisprudence, in the
nal judgment of the Trial Court of the Portuguese State Labor Coordination, Guanare, of May
5, of 2011, case: PP01-L-2010-000107. This sentence alludes to the normative antecedents
of the Communal Councils, given that these come to constitute a legal gure for citizen
participation and the local references that are elaborated from a set of laws:
a) From the perspective of local references, for their conceptual contents in the
communal boards/foreign municipalities of the Organic Law of Municipal Regime
and its organizational or operational components for citizen and community
participation in neighborhood associations.
b) From the planning and development perspectives, the councils as instances
of participation have an antecedent in the so-called planning and development
councils or the economic and social development councils that are derived from
the application of two laws: The Organic Law Decentralization, Delimitation and
Transfer of Powers of the Public Power and the Law of the Intergovernmental
Fund for Decentralization.
However, the constitutional framework of the communal councils, the
constitutional references invoked to support the object and content of the
activities of the communal councils, as instances of participation and planning,
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that respond to a set of rights and provisions indicated at the time are justied to
legally establish this gure of the Communal Councils, initially linked to the Local
Councils of Public Planning and integrated into the Municipal Public Power.
From the same perspective, pointed out by the Judge, the legal antecedents of the Communal
Councils are developed in the context of participatory planning in public administration and
the existence of bodies for the direct participation of citizens, in order to intervene in the
different stages of the process of elaboration, formulation, execution and evaluation of public
policies. This guaranteed from the constitutional precepts, by expressing that “everyone has
the duty to fulll their social responsibilities and participate in solidarity in the political, civil
and community life of the country, promoting and defending human rights as the foundation
of democratic coexistence and social peace” (Art. 132).
Another argument about the constitutional nature of the Communal Councils, is what is
exposed by Romero (2007), who points them out as a new subject of decentralization, based
on what is indicated in number 6, of article 184, of the CRBV, which provides:
The law will create open and exible mechanisms for the States and Municipalities
to decentralize and transfer to the organized neighborhood communities and
groups the services that they manage after demonstrating their capacity to
provide them, promoting: […] 6. The creation of new subjects of decentralization
at the level of parishes, communities, neighborhoods and surroundings in order to
guarantee the principle of joint responsibility in the public management of local
and state governments and to develop self-management and co-management
processes in the administration and control of services.
From the perspective of the legal nature of the Communal Councils, as public entities of
the State, that is, of the decentralized administration, is the armation of the First Court of
the Administrative Litigation of Caracas, le No. ap42-g-2011-000150 of 2011, between
Sociedad Mercantil Inversiones & Construcciones FG Fernández against the Barranco
Rosado Community Council, whose decision states:
Thus, it is evident that both the constitution and the law have attributed to the
Communal Councils the character of ‘public entities of the state’ in which the people
dene, execute, control and evaluate public policies and assume the direct and
real exercise of popular power, thus being an instance of community government
with constitutional rank. Consequently, for those who pronounce here, there is no
doubt that the Communal Councils are, by legal and constitutional classication,
public entities of the decentralized administration by virtue of being subsumed
in the denition contained in article 184 of the Constitution and 2 of the Organic
Law of the Communal Councils; as a consequence, as they are public entities,
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13
they must be governed by the regulations concerning public law specically to
the branch of administrative law, which is, which is in charge of regulating the acts
of the state as a public administration that is and as such, procedurally has a own
jurisdiction which is, the contentious administrative jurisdiction.
In accordance with this perspective, the Second Superior Court for Civil, Commercial, Trac
and Protection of Children and Adolescents of the Judicial District of the State of Merida,
on June 22, of 2010, declares the Courts of Contentious Administrative, based in the city of
Caracas, to continue learning about the affairs of the Communal Councils, since they are
public entities of the decentralized administration:
Therefore, it is evident that the Communal Councils of Marras are, by legal
qualication, a public entity of the Decentralized Administration, by virtue of being
subsumed in the denition contained in article 184 numeral of the Constitution of
the Bolivarian Republic of Venezuela and 2 of the Organic Law of the Communal
Councils.
In correspondence to the aforementioned, on the fact that the Communal Councils are
considered public entities of the decentralized administration, is the appreciation of González
(2012), who expresses that,
effectively the Constitution in its article 184, establishes the creation of
mechanisms for decentralization, where the Municipalities and States transfer
certain powers to the organized communities, being this precept the one that was
taken as the basis for the creation of the Communal Councils. (p. 49)
On the other hand, González (2012) presents arguments in relation to some ambiguities for
the interpretation of the legislation in this regard, in this sense, he mentions,
the lack of legal identication since the law does not provide, if they are indeed
organs or entities; the various decisions issued by the TSJ in analysis of the
constitutional precept and the characteristics of the Law of the Communal
Councils (2006) and the Organic Law of the Communal Councils (2009), were
determined to be entities. (p. 49)
This position of the author is pertinent based on what is expressed in the Decree with Rank,
Value and Force of Organic Law of Public Administration of 2014, given that, in its content,
the guidelines for the creation of entities and its basic characteristics, which do not agree with
the guidelines of the Communal Councils, as evidenced in article 16, on the requirements for
the creation of administrative bodies and entities:
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Legal Nature of the Community Councils in Venezuela
14
1. Determination of its subjective conguration, organizational form and location
in the structure of the respective Public Administration. 2. Express indication of
its purpose and powers, determination of its organizational form, its location in
the structure of the Public Administration and its functional and administrative
aliation. 3. Forecast of the items and budget allocations necessary for its
organization, operation or organizational reforms.
It is evident that the registration procedure of the Communal Councils does not agree with
that of the public entities of the decentralized administration, expressed in the aforementioned
Decree Law and, in other articles, related to the Communal Councils, in which it mentions
the entities of the Administration and, on the other hand, refers to the Communal Councils;
similarly, in the LOCC, in the development of its articles, it does not expressly mention that
they are entities of the public administration.
Although, the First Court of Administrative Litigation decided that the Communal Councils
are public entities of the decentralized administration, based on article 184, number 6 of
the CRBV, and article 2 of the LOCC, it is considered that these articles do not support
the position of the legislator, when classifying them as “public entities of decentralized
administration,” but rather arguing the essence of this new form of community organization,
which is intended to meet the demands and needs of the inhabitants of a given community.
As a basis for community nature, it must be clear the denition of community councils and,
the purpose for which they were created, that is, as a form of organization from the base
of society, to intervene in politics and management public and community. In this regard,
Morales, Núñez and Hernández (2012), assume the communal councils as:
The main tool of the participatory democracy system; they are inclusive, plural
and transparent instances of popular power, capable of originating a broad and
critical citizen movement, which generally require that citizens become active
political subjects, competent, in any case, to intervene from their individual sphere,
in all matters that in one way or another affect them, which involves relearning
to look, act and think and, why not, to communicate, becoming a subject and
object of the participatory process, a fundamental condition for their quality as a
political subject active. (p. 260)
Another fundamental aspect of the Communal Councils is the term participation, which has
been oriented from different conceptions, which cover the political, social and community
level. One of them, to which reference is usually made when speaking of participation, is that
linked to the inclusion of citizens in decision-making processes in public management, in
such a way as to directly or indirectly inuence public politics and in the community (López,
2001); while Ceballos (2009) denes participation from the subject:
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Citizen participation is understood as a continuous and dynamic social process,
through which the members of a community through established mechanisms
and legitimate organizations in which all members of the community are
represented, since it is dicult to dialogue with all and each of the members,
decide, contribute and participate in the realization of the common good. (p. 45)
In summary, the nature of the Communal Councils is mixed, constitutional and communal,
based on articles 184 of CRBV, and article 2 of the LOCC, due because they constitute a
basic form of organization of society, which fosters the political and social conditions for
people to participate in the management of public policies (formulation, execution, control
and evaluation), in favor of community development with equity and social justice.
Hence, the Communal Councils are legally established as an organizational form of
Venezuelan society, based on the new conception of the State, which is responsible for
the relevance of citizens to participate in the public policies of the Nation, thus, that the
main engine of this form of community organization, that is, the people, who must exercise
their right and duties in public management with incidence in the community, through the
Communal Councils, as an essential instance of society.
Conclusions
For the fulllment of the competences and demands of the citizens, the Venezuelan State
uses different means of administrative and community activity, for which it requires a set
of territorial public entities; as well as private law entities whose purpose is to carry out
activities of public interest.
The approval of the CRBV constitutes the essential legal basis for the creation and formal
conformation of new instances of organization of society, for participation in politics and
public management; being one of them the Communal Councils, as a political-administrative
instance of community participation in order to intervene directly in matters of collective
interest, both in public and community management for community development.
The Communal Councils, based on the constitutional precepts of 1999, constitute instances
of participation of organized communities to intervene in public and community affairs;
however, since its formal creation in 2006, progress has been evidenced in legal and
administrative decisions regarding the legal nature that supports compliance with its powers,
expanded in the LOCC of 2009.
The legal nature of the Communal Councils is categorized as mixed, given their constitutional
and community foundations, according to constitutional precepts, as well as those provided
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Legal Nature of the Community Councils in Venezuela
16
for in the LOCC, which establish the legal character of these Councils, as the essential
form of organization of Venezuelan society, which fosters political, administrative and social
conditions, so that citizens participate in the management of public policies (formulation,
execution, control and evaluation), in favor of a community development with equity and
social justice.
The Communal Councils are a mixture, because they are organizations that are created
for the organization of citizens and the community, to solve the needs and demands in the
communities, therefore, they are born from the will of the citizens, that is, a private character.
While, the State gives them a public character, in the obligation to comply with the principle of
eciency in the allocation and use of public resources; non-returnable, donation, assignment
or award.
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