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Symposium on “Venezuela’s 2017 (Authoritarian) National Constituent Assembly”–Pursuing Constitutional Authoritarianism

[Editor’s Note: This is the fifth 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.]


–José Ignacio Hernández G.*

In the middle of civil protests, on May 1, 2017 Venezuela’s President Nicolás Maduro announced his intention to convoke a “National Constituent Assembly” (NCA), to “promote peace in Venezuela”. Instead of peace, Maduro’s announcement increased the country’s political crisis and the international pressure against his regime, particularly after the “election” of NCA members on July 30, 2017.   To help understand Venezuela’s complex situation under the NCA, this post will briefly address four main topics: (1) the political context in which Maduro announced its intention to convoke the NCA; (2) the illegitimacy of the NCA; (3) the fraudulent purpose of the NCA; and finally (4) what can be expected from the NCA after its first decisions.

  1. The Political Context: A Constituent Assembly Amidst a National Crisis

In April 2013, after the death of President Hugo Chavez, Nicolás Maduro was elected President in a highly controversial election. Soon thereafter the signs of an economic crisis became increasingly visible, particularly in terms of rising inflation and chronic shortages of food, medicines and other essentials. Maduro’s Presidency at first confronted these problems as a unified government, with control of the other branches of the State, including the Legislature (Asamblea Nacional) and the Supreme Court (Tribunal Supremo de Justicia). However, in December 2015, the opposition coalition (MUD) obtained a qualified majority of deputies in the legislative elections (112 of 167 National Assembly seats).

Under the constitutional principle of separation of powers established in the 1999 Constitution this change must have led to major reforms. Yet, it became nothing more than a vague, toothless principle, due to the government’s political control of the Supreme Court (Tarre Briceño 2014).  Since the Legislature changed hands, the Supreme Court adopted dozens of rulings that effectively annulled the National Assembly, in a clear abuse of its constitutional review prerogatives. With only one exception, all the Laws enacted by the National Assembly were declared unconstitutional, based in general interpretations of the Constitution (Brewer-Carías 2016).  Additionally, in 2016, the country’s national electoral authority (Consejo Nacional Electoral, CNE), under the political control of the Government, prevented a recall referendum against the President and postponed regional elections indefinitely – openly disregarding the 1999 Constitution.

More recently, in March 2017, the Supreme Court adopted two new decisions against the National Assembly, seeking to strip it from its legislative prerogatives. This was the breaking point. The National Assembly declared that those decisions consolidated a coup d’état, a conclusion that was echoed by the international community (especially the Organization of American States), and even by the country’s Public Prosecutor, Luisa Ortega Díaz, who until then had supported the government.  As a result, civil protests increased (See Gamboa’s post), with the government responding with military repression and the jailing of hundreds of demonstrators and political leaders.   It was in this conflictual context that on May 1 (Workers Day), Maduro announced his intention to convoke the NCA, with the purpose of “spreading peace” in the country.

  1. The NCA’s (Il)legitimacy of Origin

The Presidential Decree N° 2.830 (Official Gazette number 6.295, May 1, 2017) convoked a “national constituency assembly of the citizens” (article 1). The Decree stated that the Venezuelan President has the right to convoke a Constituent Assembly. However, prevalent constitutional interpretation had suggested that only Venezuelan citizens, through a referendum, have the right to decide whether a constituency assembly should be convoked or not (See La Roche 1991). This conclusion is based on article 347 of the 1999 Constitution, according to which “the original constituent power resides in the Venezuelan people. This power may be exercised by calling a National Constituent Assembly for the purpose of transforming the State, creating a new juridical order and drawing up a new Constitution”.  This right is consistent with the premise that popular sovereignty that resides in the people, this is, in the Venezuelan citizens (article 5 of the 1999 Constitution). Therefore, the power to enact a new Constitution (i.e.: the constituent power) resides in the Venezuelan people.  Under this interpretation, only the people can decide through a referendum if a NCA should be convoked to repeal the Constitution and enact a new one. This was the conclusion sustained by the Supreme Court in 1999, when then President Hugo Chavez promoted a Constituent Assembly to repeal the 1961 Constitution (Brewer-Carías, 1999).  To this end, citizens also have the right to elect the deputies of this Assembly.

But article 374 of the Constitution does not regulate, in detail, how the people can decide if a NCA should be convoked. Thus, article 348 of the Constitution established who is entitled to request such popular consult, this is, who holds “the initiative to convoke a National Constituency Assembly”. There is an important difference between the “initiative to convoke” and the “call” of the constituency assembly that was omitted by Decree N° 2.830. Only the Venezuelan people can call or convoke an NCA, according to article 347. For this purpose, the persons entitled by article 348 have the initiative to request a popular consult or referendum in order to allow the Venezuelan people to decide if they want to enact a new constitution through a Constituent Assembly (Hernández G. 2017).

According to article 348, the President has the initiative to consult the people about the call of a National Constituency Assembly. This initiative does not encompass the right to decide about the call of that Assembly, because only the people, by a referendum, can adopt that decision. On the contrary, the President only has the right to promote a referendum along these lines. Yet, in violation of article 347, the Presidential Decree N° 2.830 adopted the decision of repeal the 1999 Constitution by a new Constitution  enacted by the NCA, without the consent of Venezuelan citizens. As this clearly violates the people’s exclusive, sovereign constituent power, Decree N° 2.830 is an illegitimate act.

Nevertheless, when asked to rule on the matter, the Supreme Court decided otherwise. The Constitutional Chamber of the Supreme Court (Decision number 378, May 31) concluded that the President, representing the people, has the right to decide whether a Constituent Assembly must be called. This decision ignores the fundamental basis of the country’s democratic rule of law: the President represents Venezuela’s citizens within the boundaries of its constitutional prerogatives. No article of the Constitution assigned to the President the power to convoke a constituent assembly. On the contrary, as explained above, only the Venezuelan people can adopt such decision.

The Decree’s lack of legitimacy is even more grotesque because of the arbitrary electoral rules imposed by the President. Decree N° 2.878 (Official Gazette number 41.156, May 23, 2017), regulated the election of NCA members in three ways: 8 deputies would be elected by indigenous people; 173 deputies would be indirectly elected through “sectors” defined by the Government (such as, for example, businessmen, fishermen and workers), and 374 would be elected in electoral districts.

These rules violate the constitutional framework of elections in Venezuela for at least two reasons (Brewer-Carías 2017). First, the election of deputies through “sectors” violates the 1999 Constitution according to which the right to vote should be universal and direct, meaning that any elector can be postulated as candidate and that any elector can vote for any candidate (art. 63). However, according to the Decree only the electors included in the governmental sectors can vote for the candidates that were postulated within the sector. For example, only workers can vote for workers’ candidates.  Secondly, the Decree establishes that each municipality will elect the same number of members to the NCA, even when the electoral populations are extremely different. This violates the proportionality principle of voting established in the said section.

In conclusion, the NCA’s election is illegitimate for two main reasons: (1) The NCA was not the result of a decision of the Venezuelan people, that have the exclusive right to call a NCA, and (2) the electoral rules to elect the NCA members were arbitrary and disproportionate.

  1. The NCA’s Fraudulent Purpose

Presidential Decree N° 2.830 does not specify guidelines about the content of the new Constitution. Beyond some general references regarding the protection of social programs of the Government; the promotion of the environment and the protection of “human beings”, there is no specific mention about the constitutional changes that the NCA would apply.

The truth is that the content of the new Constitution is not relevant. As discussed in other posts, according to Presidential Decree N° 2.830 the NCA would act as an “original constituent power”, which means that the NCA would exercise absolute power, without restrictions (Brewer-Carías, 2017). It can thus be assumed that the real purpose of the NCA is to consolidate and concentrate all powers, and dismantle the separation of powers principle. Particularly, the NCA would intend to take over the National Assembly’s legislative prerogatives.  This would be the case, even when article 347 of the Constitution restricts the power of the NCA to creating a new Constitution.

It is a perfect example of tyranny.

  1. What can be Expected from the NCA

Presidential Decree N° 2831, along with Decree N° 2830, appointed a Presidential Commission to study the possible reforms that will be implemented by the NCA. According to Decree N° 2831 the reforms aim to consolidate 21st Century Socialism, this is, the political model advocated by President Chávez to organize a “Communal State”, based in the political model of the Soviet Union. The “Communal State”, or “Socialist State”, would act under the absolute control of the Government in collaboration with the “communal assemblies”, also controlled by the Government (the “socialist communes”, see Sánchez-Falcón 2016).

Taking into consideration that the purpose of the NCA is to organize a “Communal State”, which is an absolute and authoritarian form of government, it is likely that the NCA could act as a de facto government with the support of “communal assemblies”. Moreover, in order to impose the “Communal State”, the NCA would exercise its “original constituent power” to control all the branches of the State, and therefore, promote the transformation of the State into a “Socialist State”. This implies dismantling the Rule of Law and the separation of powers, because the NCA would exercise “supra-constitutional” powers that go beyond constitutional boundaries.

These expectations were initially confirmed once the NCA began its activities (since August 4, 2017):

– The NCA decided to take seat in the building of the legislative branch (Palacio Federal Legislativo). This is part of a plan to dramatically reduce the National Assembly prerogatives or, worse, a prelude to the dissolution of the legislature.

– The NCA removed the Public Prosecutor and appointed a “pro tempore” Prosecutor. Yet, according to article 279 of the 1999 Constitution, only the National Assembly, after consulting with the Supreme Tribunal, can remove the Public Prosecutor.

These decisions were adopted by way of “Constituent Decrees” of the NCA. The Decrees sustained that the NCA “exercises an original constituent power to reorganize the State”. As I explained, to the NCA, an “original constituent power” is equivalent to a supra-constitutional power, in other words, an absolute power without constitutional boundaries.

– Finally, on August 8, 2017, the NCA decided that the legislative, executive and judicial branches should be subordinated to its “original constituent power”. Also, the leader of the NCA announced that the Assembly would last for at least two years.

After these actions, it can be assumed that the NCA’s main purpose is not enacting a new Constitution. On the contrary, the NCA acts as an absolutist government that will exercise all the powers of the State without any limitation.  Thus, the NCA is a blatant case of “constitutional authoritarianism”. Maduro’s Government, instead of openly violating the Constitution, decided to simulate a constitution-making process in order to have a justification for his authoritarian actions.

As explained by Ginsburg and Simpser (2014), in authoritarian regimes the Constitution acts as a “hallowed vessel”, this is, a document that intents to legitimate and justify authoritarian decisions.  In Venezuela, the “hallowed vessel” is, currently, the NCA.

José Ignacio Hernández G., (Law Degree,  Summa Cum Laude, Universidad Católica Andrés Bello, Caracas; PhD, Universidad Complutense de Madrid), is a Professor of Public Law at Universidad Católica Andrés Bello and Universidad Central de Venezuela, Caracas. E-Mail: jihernandez@ghm.com.ve. He thanks Andrea Villasmil Nardi and Raúl Sánchez-Urribarri for comments on an earlier draft.

Suggested Citation: José Ignacio Hernández G., Symposium on “Venezuela’s 2017 (Authoritarian) National Constituent Assembly”–Pursuing Constitutional Authoritarianism, Int’l J. Const. L. Blog, Sept. 1, 2017, at: http://www.iconnectblog.com/2017/08/symposium-on-venezuelas-2017-authoritarian-national-constituent-assemblyjose-ignacio-hernandez-g

REFERENCES

Brewer-Carías, Allan (1999), Asamblea constituyente y ordenamiento constitucional, Academia de Ciencias Políticas y Sociales, Caracas, 177.

Brewer-Carías, Allan (2016) Dictadura Judicial y perversión del Estado de Derecho. La Sala Constitucional y la destrucción de la democracia en Venezuela, Editorial Jurídica Venezolana International, New York-Caracas, 116.

Brewer-Carías, Allan (2017), “La gran mentira: la asamblea nacional constituyente ni es soberana ni es depositaria del poder constituyente originario, ni es reconocida globalmente”, working paper at www.allanbrewercarias.com.

Ginsburg, Tom & Alberto Simpser (2014), “Introduction, Chapter 1 of Constitutions in Authoritarian Regimes,” University of Chicago Public Law & Legal Theory Working Paper, No. 468.Hernández G., José Ignacio, “La ilegítima y fraudulenta convocatoria a una asamblea nacional constituyente ciudadana” (2017), in Brewer-Carías, Allan and García, Carlos (ed), Estudios sobre la Asamblea Nacional Constituyente y su Inconstitucional Convocatoria en 2017, Editorial Jurídica Venezolana, Caracas, 351.

La Roche, Humberto (1991) Derecho Constitucional, 1991, 200.

Sánchez Falcón, Enrique (2016), Estado Comunal y Estado Federal en Venezuela, Fundación Manuel García Pelayo, Caracas, 140.

Tarre Briceño, Gustavo (2014), Solo el poder detiene al poder, Editorial Jurídica Venezolana, Caracas, 273.

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Published on September 1, 2017
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