About the decision of the Supreme Court of Justice, which ruled as inadmissible the action for negligence against the president of the BCV, Nelson Merentes, filed by Transparencia Venezuela, for his failure to publish essential data of the country’s economy, Alan Brewer Carías, a lawyer and a professor at the Central University of Venezuela (UCV), published an article entitled “Secrecy and Lies as State Policy and the End of Obligation of Transparency,” detailing how the Supreme Court of Justice (TSJ) released the Central Bank of Venezuela (BCV) (unconstitutionally) from its legal obligation to keep the country informed on economic indicators, violating citizens’ rights to government transparency, access to justice and access to administrative information.
Brewer Carías describes this as “the end of transparency in information.” Below is a transcription of the article:
SECRECY AND LIES AS STATE POLICY AND THE END OF THE OBLIGATION OF TRANSPARENCY
How the Supreme Court released –unconstitutionally – the Central Bank of Venezuela from its legal obligation to keep citizens informed on economic indicators, violating citizens’ rights to government transparency, access to justice and access to administrative information.
Allan R. Brewer-Carías
Professor at the Central University of Venezuela
I
The Supreme Court, through its Political-Administrative Chamber, following the guidelines already defined by the Constitutional Court in 2010, of consolidating Public Administration as an “iron bunker,” where everything is secret, replacing the former “Glass House” where everything should be transparent,1 has – with the stroke of a pen – denied citizens three constitutional rights: the right to government transparency, the right of access to justice and the right of access to administrative information.
This is the case of Judgment No. 935 of August 4, 2015, issued in the case Transparencia Venezuela vs the President of the Central Bank of Venezuela,2 denying the NGO the right of all citizens to be publicly informed by the Central Bank of Venezuela on the economic indicators of the country, which said institution is legally obliged to produce and publish.
II
In a democratic State with rule of law, as formally stated in the Constitution, as an essential part of the right to democracy,3 leaders are forced to carry out government activities with full transparency, so citizens can exercise the most basic right of democracy, which is to oversee the exercise of power.
As expressed years ago by Judge Louis Brandeis of the United States Supreme Court, “sunlight is the best disinfectant,”4 i.e., the disclosure of government activities is the best guarantee of the political right to transparency, so as to ensure citizens the right to information about government actions so they can oversee the efficiency and effectiveness in public administration, for which the Constitution establishes both the right of access to administrative information and the right of citizens to access justice to exercise such control.
Democracy, indeed, as a political regime, can only exist when citizens are ensured the possibility to perform effective oversight over the exercise of power by their representatives, i.e. their political leaders. That is what democracy is all about: the exercise of power on behalf of citizens and the real possibility for these to be able to control the use of power, which not only imposes the need for an effective separation of powers, where they can control one another, but to establish and ensure that citizens have the right of access to administrative information and access to the courts to exercise, claim and defend their rights, and in particular, to demand judicial control over government administration.
This is the relationship between government transparency, access to information and access to justice; the latter two elements are the essential condition for control of the former, i.e. transparency.
III
Regarding economic administration of the State, and particularly fiscal management, for example, the Constitution establishes as guiding principles the principle of “transparency” (Article 311.), which is common in relation to all public entities, as in e.g. Article 141 of the Constitution, which provides that, being “at the service of citizens,”5 is based, among others, on:
“Principles of transparency, accountability and responsibility in the exercise of public functions, being fully subject to the law” (Article 141).
This principle of transparency is reiterated in the Organic Law of Public Administration, which lists the principles based on which administrative activity should be carried out, namely, “the principles of economy, swiftness, simplicity, accountability, effectiveness, efficiency, proportionality, timeliness, objectivity, impartiality, participation, honesty, accessibility, consistency, modernity, transparency, good faith, parallelism of form and responsibility in the exercise thereof, in full compliance with the law, and without non-essential formalities.” (Art. 10).
Additionally, and specifically in relation to the Central Bank of Venezuela, Article 319 of the Constitution states that this institution, “shall be governed by the principle of public responsibility,” under which, in addition to accounting for its actions , goals and results of their policies to the National Assembly, it must also issue “periodic reports on the behaviour of macroeconomic variables of the country and other matters as requested, and shall include analysis that enable their evaluation.”
To this end, Article 31 of the Law of the Central Bank of Venezuela specifically provides that its management “shall be guided by the principle of transparency,” meaning that:
“Without prejudice to its institutional responsibilities, it shall keep the National Executive Branch and other State agencies, public and private, domestic and foreign economic operators and the public, informed in a timely and reliable manner about the implementation of its policies, decisions and agreements of its Board of Directors, reports, publications, research and statistics that provide information on the evolution of the Venezuelan economy, without compromising confidentiality rules as appropriate, in accordance with the Constitution.”
To this end, Article 7.13 of its governing law provides that for the proper fulfilment of its objective, the Central Bank of Venezuela shall be responsible, among others, for “collecting, producing and publishing key economic, monetary, financial, exchange, price and balance-of-payments statistics.”
From the above, based on the principle of transparency, as expressly stated in the Constitution, the Organic Law of Public Administration, and specifically in the Law of the Central Bank of Venezuela, this institution is obliged to inform both State entities and citizens in general, on the country’s economic, financial, monetary, exchange rate, price and balance-of-payments indicators, and it is required to collect, produce and publish such information.
It is therefore a legal obligation that the Bank must fulfil, without specific requirement by any interested party to oversee its actions and to determine, as stated in Article 319 of the Constitution, whether there has been “breach without just cause of objectives and goals” of the institution, in which case the Board is liable to penalties established by law.
IV
Compliance with this legal obligation to make available to the population information and economic indicators of the country, of course, may be specifically required by any citizen by exercising the administrative petition rights set forth in Article 51 of the Constitution, or by exercising the right enshrined in Article 26 of the Constitution, under which
“Everyone has the right of access to justice administration entities to assert their rights and interests, including collective or diffuse interests; to effective protection thereof and to obtain a prompt response.”
In particular, regarding this right to demand judicially before the courts of administrative jurisdiction compliance by public officials with any legal obligation, particularly to ensure the principle of transparency6 imposed on the Central Bank of Venezuela to report on the economic affairs of the country, Article 9.2 of the Organic Law of that jurisdiction in 2010 confers jurisdiction on their courts to hear two types of demands: on the one hand, against “failure of authorities to produce an act to which they are bound by law,” and on the other hand, against “the refusal of the authorities to produce an act to which they are bound by law.”
In both cases, in accordance with Article 23 of the Organic Law, the Political-Administrative Chamber of the Supreme Court must hear such claims in the case of “failure or refusal” of senior officials, and particularly the “highest authorities of the other constitutional bodies,” such as the Central Bank, and to correct said failure or refusal by imposing on officials the obligation to comply with their legal duty.
We observe, in any case, that through this legal regulation, the Organic Law includes at least three claims or administrative litigation actions: first, the administrative action against negligence or failure of an official to fulfil a legally imposed obligation, as a general obligation based on the law; second, the contentious administrative action against failure of an official to fulfil a legally imposed obligation, but which derives specifically from the right to petition in case of absence of a timely response to a petition; and third, the administrative action against the refusal of an official to fulfil a legal obligation. These three actions give rise to different evidentiary obligations to the petitioner.
In the first case of “failure” to fulfil a general legal obligation by an official, the petitioner has to prove simply that there has been inaction by the official; in the second case, of noncompliance with the specific obligation of the official to provide a timely response to a request filed by the petitioner, the petitioner has to prove that despite having made the request to the Administration, no response has been issued; and in the third case, the “refusal” of the official to fulfil a legal obligation, which is also an express act, it also derives from the exercise of a right of petition by a citizen to a government body, which refuses to respond promptly. In the latter two cases, the petitioner must prove that he made the request, and there has been a delay in the respond, or did not obtain a timely response.
Therefore, the claim or administrative action for negligence or failure exists not only, as in the last two cases, when there is a specific legal relationship between the administration and citizens, which generates the obligation of the former for example to respond promptly to a specific request; but it is also applicable, as in the first case, in the case of generic obligations of the Administration to act in order to fulfil its legal duties.
On this issue, the Constitutional Chamber of the Supreme Court has been clear in establishing the criterion that “the action for negligence or failure is an administrative recourse that can – and should – include the request of an order to comply with any unfulfilled administrative obligation, without distinguishing whether it is specific or generic,”7 giving rise, as expressed by Gina Gonzalez Betancourt, to jurisprudence that has established:
“An extension of the oversight of the expressions of administrative negligence, by recourse of negligence or failure, which can be deemed a positive reform if seen in the context of an extension of the subject of the claim, and abandonment of restrictive interpretations of access ( between generic and specific obligations).”8
V
In the case decided by the Political-Administrative Chamber through decision No. 935 of August 4, 2015, discussed above, it was certainly the first case, i.e. a administrative action for negligence against the President of the Central Bank of Venezuela for failure to fulfil a legal obligation generally established in the Constitution and the Law Central Bank of Venezuela.
Indeed, in July 2015, and in accordance with the above provisions, representatives of the civil association Transparencia Venezuela, on the “… non-fulfilment of the duty of accountability established in Article 319 of the Constitution of the Bolivarian Republic of Venezuela, and opacity caused by the breach of the obligation to publish key economic statistics, as provided in articles 7 paragraphs 13 and 31 of the Decree-Law of Partial Reform of the Law of the Central Bank of Venezuela,” exercising their right of access to justice, filed an action with the Political Administrative Chamber of the Supreme Court for negligence against the President of the Central Bank of Venezuela, “for failure to exercise an obligation imposed by the Law of the Central Bank of Venezuela” claiming violation of the right of “access to information, which compromises and violates fundamental principles of a democratic and social state of law and justice enshrined in our Constitution.”
To that end, the petitioner indicated that said “negligence can be proven by reviewing the website of the Central Bank of Venezuela, where there is no macroeconomic index published so far in 2015 (January-July),” as it is a “blatant violation of specific obligations set out in articles 7 paragraph 13 and 31 of the Law of the Central Bank of Venezuela, and which is also a violation of the constitutional principles of participation, transparency and fairness which should guide any government entity or agency.”
In short, the petitioners stated that “… the action of the President of the Central Bank of Venezuela, by failing to comply with the obligation to publish information, represents negligence on his part, since he has ceased to discharge an essential duty, to ensure compliance with the law and the constitutional right of every person to have and receive at all times timely, truthful, impartial and uncensored information,” requesting the Supreme Court to order “the President of the Central Bank of Venezuela to publish the country’s main economic statistics for the period January-July 2015 on the website of the Central Bank of Venezuela, in accordance with articles 7 paragraph 13 and 31 of the Law of the Central Bank.” In other words, to comply with his obligation under the law.
VI
Following legal criteria set forth above, in particular judgment No. 1177 of November 24, 20109, the Court processed the request filed in accordance with the “brief procedure” applicable to “claims related to actions for negligence, delay or poor delivery of public services, unlawful conducts and noncompliance, when they do not entail claims on property or compensation,” but in doing so, illegitimately proceeded to change the purpose of the request, transforming the action for “negligence” to require compliance with a legal obligation by the Central Bank, into a claim for negligence demanding a timely response to an alleged administrative request that was never filed, because it was not legally necessary. This claim was was never filed.
That is, in order to deny the petitioner the right to access to justice to oversee the actions of the President of the Central Bank of Venezuela and demand compliance with his legal obligation, the Administrative Chamber ignored the object of the claim (“failure” to comply with a legal obligation), considering it improper as a claim for negligence or refusal to respond to request for compliance with a legal obligation, proceeded to declare it inadmissible on the grounds that petitioners had allegedly failed to include in their claim a document of a procedure that proves that the Bank has failed to respond to an alleged request.
In fact, Article 66 of the Organic Law of Administrative Jurisdiction states that “in cases of claim for the provision of public services or negligence,” the petitioner “must include documents that establish the procedures carried out,” which must be understood as applicable under the principle of pro actione. The establishment of “procedures made” is essential in the case of claim for provision of services, and even for negligence or refusal of the administration to respond to a request; but it is not applicable when it comes to a claim for negligence seeking fulfilment of a legal obligation, in which case the petitioner must prove only the noncompliance by the official.
In the latter case, only if the petitioner does not prove the noncompliance with his claim, the court could declare the application inadmissible under Articles 35.4 and 66 of the Organic Law of Administrative Jurisdiction by requiring that all claims must be accompanied by “the necessary documents to verify their admissibility.”
If it is a claim to demand the provision of public services, the petitioner must include the “documents proving the procedures carried out” to establish the poor delivery; if it is a claim for refusal or failure of the Administration to respond to a specific request, for example, a hierarchical appeal exercised before the Administration, the petitioner must prove that there has been a delay of the Administration in providing a timely response; but if it is a claim for negligence regarding the fulfilment of a general obligation imposed by law to the official, such as the case for example of the obligation to disclose economic indicators as required of the Central Bank, the petitioner simply has to prove the noncompliance with the legal obligation, without previously having to request the official or entity to fulfil its general obligation.
VII
This distinction arises from the ruling of the Administrative Court discussed above, based on several previous rulings in which the Court “verified that the petitioner has included the necessary documents to verify admissibility, which in cases of claims for the provision of public services and claims for negligence, refer to those that prove the procedures carried out before the authority under claim;” these judgments referred to alleged facts different from that of the proposed action, because they referred to cases of negligence to decide upon specific requests made to the Administration.
Such judgments cited incorrectly as “precedent” were in fact as follows: Judgment No. 640 of May 18, 2011, issued in a case in which the claim was lack of response to an administrative appeal, and was declared inadmissible due to lack of “evidence proving the efforts made before the Administration to request a response,”10; Judgment No. 1748 of December 8, 2011, issued in a case claiming failure to transfer statutory funds by the National Executive Branch to the State of Carabobo, and was declared inadmissible because there was no record “that prior to the filing of the action, the petitioner had exhausted procedures with the Minister of Interior and Justice, to resolve the negligence under claim”11; Judgment No. 384 of April 25, 2012 (which we have not been able to consult due to “Error” on the Supreme Court website); and Judgment No. 444 of April 23, 2015, that resolved a claim due to lack of response to an administrative appeal, and was declared inadmissible because, although it included “a copy of the administrative appeal filed with the then Minister of People’s Power for Economy, Finance and Public Banking,” the petitioner “did not include in his claim any evidence supporting the efforts made with the Administration requesting a response.”12
In all cases cited as alleged precedent, the petitioners had specifically requested the Administration, through a specific request, to perform an activity that the Administration should perform but failed to do so; thus, in the absence of a timely response , the Court considered that in order to access justice, they should have proven a delay in the Administration through a specific procedure claiming a timely response.
All these cases are different from the action filed by the civil association Transparencia Venezuela, which demanded that the respondent, in this case, the President of the Central Bank of Venezuela, comply with his general legal obligation to report publicly to the people on the economic indicators of the country, pursuant to his constitutional and legal obligation, for which all the petitioner had to produce in terms of evidence was to objectively prove the noncompliance with this obligation, which was public knowledge, as follows:
“The omission can be proven by checking the website of the Central Bank of Venezuela, which has not published any macroeconomic index so far in 2015 (January-July),”
Therefore, to file the claim, civil association Transparencia Venezuela did not have to include in its action, as erroneously stated by the Court in its judgment,
“evidence proving the procedures carried out to request and obtain from the President of the Central Bank of Venezuela compliance with the obligation of accountability under Article 319 of the Constitution of the Bolivarian Republic of Venezuela and the publication of the country’s key economic statistics as set forth in articles 7 paragraphs 13 and 31 of the Decree-Law of Partial Reform of the Law of the Central Bank of Venezuela, as foundations of the claim.”
