[Editor’s Note: This is the fourth of six parts in our symposium on the subject of “Venezuela’s 2017 (Authoritarian) National Constituent Assembly.” The introduction to the symposium is available here.]
–Juan Alberto Berríos Ortigoza*
In this short essay, I offer a few reflections about the rules (‘bases’) designed to organize the election of Venezuela’s National Constituent Assembly (NCA). Specifically, I focus on the electoral bases proposed by President Nicolás Maduro in the Presidential Decrees numbers 2.878, of May 23, 2017, and 2.889, of June 4, 2017 – both endorsed by the National Electoral Council (CNE), with minor amendments via Resolution N° 170607-118 of June 7, 2017.
Decree N° 2.878 proposed eleven (11) electoral bases, referred to the election and the number of members of the NCA, the requirements for the nomination of candidates, the time of installation of the assembly, the declaration of its original status, and the limits of its performance. Decree N° 2.889 supplemented the electoral bases by a single article, in which the Assembly is urged to submit the Constitution’s draft for referendum approval. Finally, the proposal was adopted by the CNE in Resolution N° 170607-118, specifying the rules of the election and establishing twelve (12) bases.
In contrast to the constitutional process of 1999, these electoral bases do not contemplate a popular referendum for the call of the Assembly, or order the NCA to submit the final constitutional text draft to referendum. They also fail to specify its duration (which back in 1999 was 180 days). However, in its first session, held on August 5, the NCA decided unanimously and without any debate that the duration would be 2 years, without a firm commitment to ending at that point.
As other commentators have pointed out, the decrees in question show that the government intends to use the NCA as an instrument to exclude the opposition and impose its political project. The decrees seek to manipulate the supposed democratic features of the constituent assembly, in clear violation of the principle of political pluralism referred to as a preeminent value in the 1999 Constitution (article 2).
More worryingly, the decrees suggest that the NCA will go beyond creating a new constitution, mentioning that its efforts will be directed toward “securing peace”.
The presidential decree that calls for the NCA includes, amongst its programmatic objectives, “[t]he peace as a need, right and desire for the nation”; “to contain the escalation of political violence”; and “[t]o increase the powers of the Justice System in order to eradicate impunity for crimes […] against the Homeland and society such as […] the promotion of social hatred and foreign interference.” In accordance with these objectives, the aforementioned presidential decrees argued that the NCA was called “with the aim of ensuring the preservation of the peace of the country in the social, political and economic circumstances, in which severe internal and external threats of antidemocratic and anti-patriotic factors stand against its Constitutional order.”
Thus, the call was made “for the people of Venezuela to show their iron will, with the primary purpose of ensuring the preservation of the country’s peace before the current social, political and economic circumstances, which imply a process of fierce imperialist aggression, the promotion by minority sectors of the population of racial and social hatred, violence as a form of political expression and the attempt to implement a plan which infringes on the right to peace of all”. The CNE echoed these motivations, in Resolution N° 170607-118. With this background in mind, it is not surprising that, after the results of the NCA’s July 30 elections were announced, President Maduro stated that the NCA would be responsible for jailing opposition deputies of the National Assembly.
The First electoral base of Presidential Decree N° 2.878 states that “[t]he members of the National Constituent Assembly shall be elected at the territorial and sectoral levels, by universal, direct and secret vote, (in addition) to the members of the indigenous peoples who will be elected according to their ancestral customs and practices, protected by articles 119 and 125 of the Constitution of the Bolivarian Republic of Venezuela. The sectors include: (1) Workers; (2) Farmers and fishermen and fisherwomen; (3) Students; (4) People with disabilities; (5) Indigenous Peoples; (6) Businesspeople; (7) Communes and Communal Councils.” The inclusion of the ‘sectoral’ representation is questionable, since citizens must “demonstrate” that they belong to a sector to choose and/or be elected. There was no constitutional (or legal) reason to justify the exclusion of citizens on the basis of these criteria.
The Second electoral base proposed by the President established the number of members of the Assembly: a total of 540 representatives, including 364 from territorial representation, 8 representing indigenous peoples, and 168 on the basis of sectoral representation (which were increased to 173 by the National Electoral Council).
The Third electoral base refers to the election in the territorial level: “(…) One (1) Constituent for each Municipality (…) elected by name, according to the principle of majority representation, and two (2) Constituents in the Capital municipalities, who will be elected by list, according to the principle of proportional representation” – with the exception of Caracas, where seven (7) Constituents would be elected by list according to the principle of proportional representation. In spite of the reference to the principle of proportional representation, the design not only affected the proportionality of electoral results, but also causes malapportionment in the representation of municipal territories. The disproportionality of the election is evident because 311 of the 364 constituents were elected by majority vote and only 53 by voting lists, which failed to ensure proportional representation. In fact, 23 lists had just two positions to choose, while 7 were chosen only in one list. On the other hand, the malapportionment was generated by the uneven number of municipalities by federal entity, and the remarkable differences in the number of inhabitants per municipality.
The Fourth base established that “the sectoral level election (would) occur according to the following distribution: Workers, Farmers and Fishermen and Fisherwomen, Students, People with disabilities, Indigenous Peoples, Businesspeople, Communes and communal councils, shall be elected on national lists according to the principle of majority representation; and representatives of Communes and Community Councils, are to be selected regionally according to the principle of majority representation.”
In all these sectors the vote was nominal at the national level by a majority system. The sector of communes and communal councils elected 24 constituencies, one for each federal entity. In this case, the election was nominal in regional districts by a majority system. The sector of pensioners elected 28 constituents by a majority system in 8 regional areas. The election of workers’ representatives was different, not by a majority system as established by Presidential Decree N° 2.878, but by a vote in national lists by sub-sectors according to the principle of proportional representation. In accordance with the National Electoral Council, 79 constituent deputies were selected, distributed in the following sectors: (1) Oil and mining, 2 constituent deputies; (2) Social (representing science and technology, sports, intellectuals, media and health sectors), 12; (3) Commerce and banking, 11; (4) Service (service companies public and private), 14; (5) Construction, 4; (6) Industry, 6; (7) Transport, 2; (8) Public administration, 17; and (9) Self-employed, 11.
The Presidential Decree established in the fifth electoral base, that “[t]he National Electoral Council shall request the records of the sectors to official institutions, labor unions and duly established associations. The information pertaining to the workers’ sector would be requested according to the types of labor activity: a. Oil b. Mining c. Basic Industries d. Commerce. e. Education f. Health g. Sports h. Transport i. Construction j. Cultural Sector. k. Intellectuals l. Press m. Science and Technology n. Public administration.” In this regard, the National Electoral Council was authorized, “[…] once received the distinct rolls, […] to group them by areas of similar condition and distribute them according to the constituency base established”.
The bases were designed so that the resulting NCA was not truly representative, and would act without material or time limits. These bases violate the electors’ participation under conditions of equality, openly transgressing the principles of universality of the vote (in the case of the sectoral level), direct suffrage, secret vote (as happened in the case of the election of constituent deputies who represent indigenous peoples and communities), and the proportionality of the election results with respect to the political composition of the Assembly.
These vices were denounced from the moment the bases were enacted, and were elevated to the Supreme Court. However, the reliably pro-government Constitutional Chamber of the Supreme Court dismissed these arguments. In decision 455/2017 (June 12, 2017), the Chamber concluded that the electoral bases respect the constitutional principles of participatory democracy and universal, direct and secret suffrage; enable the effective representation of municipalities as primary political units of national organization; and argued that in the 1999 Constitution there are direct means of political participation that authorize the privileged presence of social sectors, and that the role of such sectors has been highlighted by law.
Thus, with the support of the judiciary, and without any other institutional channel to question its constitutionality or legitimacy, the election occurred as intended, paving the way for the authoritarian NCA that is currently in operation.
*Juan Alberto Berríos Ortigoza (Law Degree, MSc, PhD), is a Professor of Constitutional Law and a Research Fellow of the Institute of Public Law at Universidad del Zulia, Maracaibo, Venezuela. E-mail: firstname.lastname@example.org.
Suggested Citation: Juan Alberto Berríos Ortigoza, Symposium on “Venezuela’s 2017 (Authoritarian) National Constituent Assembly”–(Mis)representing the People: Notes about the Electoral Bases of the 2017 National Constituent Assembly in Venezuela, Int’l J. Const. L. Blog, Aug. 31, 2017, at: http://www.iconnectblog.com/2017/08/symposium-on-venezuelas-2017-authoritarian-national-constituent-assembly/Juan-Alberto-Berrios-Ortigoza