The International Journal
of Not-for-Profit Law

Volume 7, Issue 2, February 2005

By Antonio L. Itriago and Miguel Ángel Itriago

The threat of a new regulatory scheme to regulate contributions and donations from foreign entities to Venezuelan NGOs has resurged, only a short time after inclusion of such regulations was eliminated from the reformed Penal Code. 

El Nacional reported on page A-5 of its January 11, 2005, edition that “indications of support resurfaced yesterday for approval of a new legal regulatory scheme to regulate the funds that civil associations and nongovernmental organizations receive from foreign institutions.” The paper cited representative Saúl Ortega, who declared that the regulations would have as their goal that “such cooperation be governed by national legal regulatory schemes [and] would preserve the democratic institutions and the cultural wealth of the Venezuelan people.” Some provisions with the same aims were recently proposed for inclusion in the reformation of the Penal Code, although ultimately they were not part of the sanctioned text.

It may be that the proposal is motivated by good intentions, as one cannot logically support foreign-financed activities that are contrary to our democratic institutions and to the domestic cultural wealth. However, it bears pointing out that laws, including criminal laws, already exist that sufficiently protect the system against acts of that kind. Obviously, those who finance such activities are the perpetrators, co-perpetrators, or accomplices of them, against whom sanctions already exist in our legislation (with penalties substantially increased in the above-mentioned reformation of the Penal Code).

We warn, nevertheless, that it would not be constitutional, appropriate, or opportune to enact a regulatory scheme to achieve the indicated objectives, because it could be used in fact to restrict the normal development of institutions, especially those that, within democratic rules, dissent from official policies and plans.

Indeed, the right of free association is acknowledged nationally and internationally as a “human right of first generation” that not only includes the right of all the citizens to create, according to the law, all kinds of associations, foundations, and other civil society organizations with lawful objectives, but also, among other things, encompasses the right to manage and administrate themselves and carry out activities, programs, and projects with absolute freedom, so long as they operate within the law and their own statutes.

For more than 120 years, Venezuela has been a very advanced country regarding the right of free association. Even now, it enjoys a privileged and enviable position in the concert of the nations. Our legislation contains very few regulations relating to freedom of association, precisely because our constituents and legislators, respectful of the right of free association, have always understood and defended with ample reason the fact that the ideal is to establish a “general framework law” within which citizens can liberally organize and carry out activities in the public interest.

Article 52 of the new Venezuelan Constitution (1999) maintains this approach. It contributes an important element to reinforce the right of freedom of association and to determine the reach of legislative competence in these matters (and by extension the regulation of the so-called NGOs): to the traditional version of the article that consecrates the right of free association, the Constitution adds the express obligation of the State to facilitate its exercise. In other words, correlative to the fundamental right of the citizens, the new Constitution establishes for the State a duty, equally fundamental: that of facilitating freedom of association.

From a reading of article 52 of the Constitution, it can be concluded with legal clarity that the ability or competence of the State, and hence that of the Parliament in legislating on this matter, is reduced to regulations that “facilitate the exercise” of the constitutional right of free association, which without a doubt excludes the possibility of laws that hinder, limit, create obstacles, or reduce it, rather than facilitating its exercise.

The announced regulation regarding financing of national organizations would not in any form “facilitate” the right of free association, because it would restrict the right of citizens, through the organizations of civil society, to obtain from abroad the financing necessary to develop their activities for lawful purposes; and even more so when, first, one of the biggest obstacles that organizations have, given their nonprofit nature, is the difficulty in obtaining loans from national private banking, and second, when it is official policy to progressively eliminate public subsidies for NGOs.

It should be kept in mind that many programs and social works depend on foreign financing and that the simple announcement of a regulatory scheme will surely have a negative impact on budgets dedicated for the execution of important public works, with consequent harm to the public and even to the Government’s image.

It would be very lamentable if, based on ignorance of the content and reach of the constitutional right of free association (which the new Constitution, as we said, has the unquestionable merit of reinforcing), the National Assembly deprived Venezuela of its position of honor won over more than a century through the acts of its most notable jurists and magistrates.

The best way to preserve the Venezuelan democratic stability is to respect and to facilitate the free exercise of the association, voting, and expression rights, among other fundamental rights of citizens.

Notes

Antonio L. Itriago (alnilak@cantv.net) and Miguel Ángel Itriago (mitriago@cantv.net) are private lawyers in Caracas, Venezuela, who have written widely about civil society and the law. Antonio Itriago is a member of the Advisory Council of the International Center for Not-for-Profit Law.