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The Constitutional Future of Venezuela

David Landau, FSU College of Law

Hugo Chavez’s death poses important questions about the constitutional future of a country that many political analysts have seen as a hybrid or competitive authoritarian regime – that is, somewhere between pure democracy and dictatorship. These regimes have elections, and real elections, but the playing field is highly uneven – incumbent regimes use patronage resources (like oil wealth in Venezuela) and control over institutions such as electoral commissions, the media, and courts to perpetuate their own power.[i] These institutions push the agenda of the incumbent regime and harass and weaken the opposition, thus helping winners remain in power. Moreover, the incumbents’ sweeping control over mechanisms of horizontal accountability tends to weaken rights protection for minority groups.

Classifying Chavez’s Venezuela as a competitive authoritarian regime is not necessarily an indictment of its political orientation or political policies, which is a more complex debate. It is merely a recognition that the regime should probably be classified on a spectrum as less than fully democratic. This lumps the Venezuelan state with a bunch of other such hybrid regimes like Russia and perhaps Singapore. An important challenge for democratic constitutionalism in the future is going to be preventing the slide of fully democratic regimes into a variant of hybrid authoritarianism.

I’ve written elsewhere on how constitution-making and a Constituent Assembly helped Chavez construct a competitive authoritarian regime in Venezuela after he was first elected president in 1999; my focus here is on a different question, which is on the role that constitutionalism will play in the transition away from his rule. There seems to be relatively little doubt that the country will to some extent “democratize” – Chavez’s movement seems too personal to him to be sustained as it was during his long presidency.  The question is the path.

There’s now a large literature on how to think about and model constitution-making during transitions away from hard authoritarian rule (such as in Egypt), although scholars continue to disagree about core questions like the form that the constitution-making should take. There is no similar literature on transitions away from hybrid regimes. Some of the political analysts associated with the competitive authoritarian literature go so far as to label constitutionalism irrelevant to such regimes; the idea is that because they tend to pack institutions like courts and to rely on informal norms, the written text doesn’t matter much.

I think the view that constitutionalism is irrelevant to competitive authoritarianism is wrong, although for complex reasons. It may overstate the degree to which courts are really in the pocket of these regimes, particularly at the outset, and it may understate the costs that regimes can face in international law and politics for blatantly ignoring clear constitutional texts and constitutional court decisions. Further, as Kim Lane Scheppele has recently argued with respect to the new Hungarian constitution, competitive authoritarian constitutions may take the form of a “frankenstate,” where each individual piece of the constitution is unproblematic or found within mainstream constitutional texts, but the various pieces working together have a strongly undemocratic effect.

The Venezuelan case raises interesting questions in this regard. First, unlike many standard authoritarian transitions, a large proportion of the political elite and electorate may see no need for a constitutional overhaul and indeed will want to preserve the text that Chavez constructed. In the immediate future, pro-Chavez figures are likely to remain dominant at the national level, and can block any efforts at constitutional amendment or replacement.  Further, many of the constitutional provisions are individually unproblematic or arguably even desirable, like the high levels of public participation embedded in the text. Many problems, like the packed court and other packed institutions, can be resolved by political agreement rather than by constitutional change, although they may take time and significant political skill to unwind. Some other problems, in judicial appointments and elsewhere, stemmed from not following the constitutional rules, rather than from the text.  And finally, other problematic constitutional provisions, like the absence of term limits, might not be a major problem in the short term, absent another political figure with Chavez’s following and skill.

So the likely result may be a democratic transition without major constitutional change, a somewhat unusual combination in Latin America, which often seems obsessed with constitutional overhauls. This might also be the best path normatively, since it at least allows a stable set of rules to stay in place. A constitutional convention, in contrast, would raise the political stakes for all actors by – as in 1999 – putting all institutional design issues on the table. Preserving the 1999 constitution also recognizes the importance of Chavez’s movement and the ways in which it has irrevocably changed political consciousness and social class in the country. Problematic constitutional provisions can be dealt with gradually through amendment (as in Mexico and Chile), since even fairly bad political institutions like the Chilean National Security Council do not always pose an insurmountable obstacle to democratization. Whether the political actors affiliated with Chavez and the opposition choose this path or instead a more tortuous one, of course, remains to be seen.

Suggested Citation: David Landau, The Constitutional Future of Venezuela, Int’l J. Const. L. Blog, Mar. 31, 2013, available at http://www.iconnectblog.com/2013/03/the-constitutional-future-of-venezuela/

 


[i] Admittedly, the line between a democracy and a hybrid regime is not that easy to draw, and must be one of degree rather than of kind. The mechanisms described here can happen to a surprising degree even in regimes that are always counted as fully democratic – witness the 2000 election in the United States.

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Published on March 31, 2013
Author:          Filed under: Analysis
 

4 Responses

  1. Tom Ginsburg

    Nice post. Even more blatantly authoritarian constitutions produce surprising outcomes when the politics line up right–see Myanmar these days. Shameless plug: an edited volume on authoritarian constitutions will be out from Cambridge this year. there are ALWAYS interesting new cases to think about in this vein.

  2. George Katrougalos

    David’s post, and his related analytical article on constitution-making in Alabama Law Review, are really interesting and original. My short remarks are on the classification of Venezuela as a “hybrid or competitive authoritarian regime” based on the following indicators: “(a regime which has) elections, and real elections, but the playing field is highly uneven – incumbent regimes use patronage resources (like oil wealth in Venezuela) and control over institutions such as electoral commissions, the media, and courts to perpetuate their own power”.
    I have serious doubts if these characteristics are typical for Chavez’s Venezuela, which is rather a populistic regime, based more on the mobilization of his supporters, than on an organic, instrumental control over state institutions. I think that Mexico, for instance, during the decades of the reign of the Institutional Revolutionary Party fits better in David’s description. Even the clientelistic policies in countries like Italy and Greece could be within its framework. After all, Chavez’ s control over institutions was far from absolute. He has lost a referendum, which is highly untypical for any autocracy.

  3. Tom Ginsburg

    That’s true, though I think there was a bit more manipulation of the machinery of government than you give credit for. His strategy seemed to be to deinstitutionalize the state, combined with selective attempts to undermine its independence. there is a very good Human Rights Watch report on the efforts to undermine judicial independence, around 2004.

  4. dlandau

    George and Tom, thanks to both of you for your comments. I struggle a lot with these regime categorizations and I think the political science literature on this is still in some flux. To me, Mexico was closer to a pure authoritarian regime for most of the PRI’s run because the elections were generally rigged and the opposition was only allowed to win small numbers of seats. Venezuela obviously had real elections and Chavez had a deep base of support, but the media and courts in particular were used to make life very difficult for the opposition. The trouble, as you suggest George, is that some of these characteristics — populist use of resources, even state control over aspects of the media or judiciary — are pretty common. The line between a regime where the same actor or party wins over and over because of genuine public appeal and a regime where the same result is observed because of manipulation of the state apparatus is particularly tough to draw. It might be better to view regimes here as lying on a continuum rather than as being classified according to differently-labelled ideal types.

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