[Editor’s Note: This is the last 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.]
–Laura Gamboa, Utah State University
On December 2015, the Venezuelan opposition won a qualified majority in the National Assembly. Their victory made evident that the Chavista coalition—which up until then had remained in power with a combination of popular support and electoral manipulation—was no longer able to win mildly competitive elections. This realization changed the nature of the regime. Between October of 2016 and April 2017, the government canceled and stalled elections, usurped the power of the National Assembly, and increased the use of violence and repression against opposition members. Since then, Venezuela has resembled more a dictatorship, than a competitive authoritarian regime.
In response to the government’s increased authoritarianism the opposition augmented its presence in the streets. During April the Venezuelan Observatory for Social Conflict (OVCS) recorded at least 134 anti-government protests across the country. The executive’s reaction to the domestic and international pressure that these protests ensued was twofold. On the one hand President Nicolás Maduro increased repression; on the other hand, he called elections for a National Constituent Assembly (Asamblea Nacional Constituyente, NCA). The later was an authoritarian reaction to the opposition’s pressure for regime change.
Contrary to what the president claimed at the time, the purpose of the NCA was not to bring peace by way of consensus or political inclusion. Rather, the new constitution is an exercise of authoritarian constitution making.
As other scholars have pointed out in this symposium, the government failed to follow the proper constitutional procedure and designed mechanisms to elect ANC representatives that systematically disadvantaged the opposition. Moreover, the elections were tainted by fraud accusations and the electoral authority has refused publish disaggregated results in order to verify the outcome. More importantly, since its installation on August 6, the 100% Chavista NCA has dismissed defectors who had important positions inside the government and declared itself superior to all other branches of government (including the opposition-controlled Legislature or ‘National Assembly’).
The NCA Election and the Opposition
The opposition coalition, Mesa de Unidad Nacional (MUD), opposed the NCA proposed by President Maduro since the first day. Fearing the government would use the NCA to unseat the legislature and purge state institutions from defectors, the MUD refused to participate in the elections for NCA representatives and used street protests and civil disobedience in an effort to stop it. Between April and July there were a total of 4,182 protests nation-wide and the opposition managed to mobilize one third of Venezuela´s registered voters (over 7 million people) to vote against the NCA in an informal popular vote held on July 2016.
These strategies aggravated the government´s legitimacy crisis domestically and abroad. Since May popular support for Maduro has dwindled, important Chavistas have defected, and several countries have declared their opposition to the constitutional assembly. Ultimately, however, the MUD’s tactics failed to reduce repression or stop the NCA. Despite a toll of 157 deaths, at least 2000 people injured, and roughly 5000 arbitrarily imprisoned, massive demonstrations and acts of civil disobedience were unable to prevent the installation of the NCA.
What is the Opposition Fighting Against?
It is hard to believe that Venezuela’s NCA is a pure exercise of window dressing. Rather, it seems that this constitution-making exercise could serve two main purposes.
First, the new constitution could function as a coordination mechanism for the governing coalition. In March, the Attorney General, Luisa Ortega Díaz –who until then had been a loyal Chavista—publicly criticized the Supreme Court’s decision to usurp the powers of the Legislature. This defection was important not only because Ortega headed an office with considerable power, but also because her declaration made it clear that members of the Chavista coalition were willing to turn against Maduro. A new constitution—a new set of rules—could address this split. It could redefine who belongs and who does not belong to the regime coalition and establish new “norms” to distribute the spoils of power (i.e. oil, drug trafficking and corruption revenues). Indeed, the first thing the NCA did was to remove Ortega from the Attorney´s General office and temporarily assign it to Tarek William Saab, until then the pro-government Ombudsman – a “proved” loyalist.
Second, the NCA could divide the opposition and hamper any attempts to effectively counteract the regime. This is particularly important in the context of social strife leading to the NCA. Constitutional assemblies engender uncertainty, you know what the rules are today but, until there is a text, you have no idea if these will change tomorrow. This uncertainty worsens the dilemmas posed by authoritarian regimes that open up participation spaces: namely whether to use those spaces or not. Without knowing the rules of the game, it is hard to accurately assess the pros and cons of participating. Venezuela’s NCA, promptly declared that it is not bound to the 1999 Constitution. This uncertainty about the rules that will govern the political arena, thwarts the MUD’s ability to plan an effective strategy for regime change and hinders the already difficult coordination of the various factions that compose the opposition coalition. Just recently, for example, there was a dispute over whether to participate in regional elections or not. The deadline to register candidates was August 9. Nevertheless, as of today, the MUD cannot safely expect that the elections are in fact going to take place, what electoral rules these elections are going to have or, more importantly given the recent fraud accusations, whether the results will be respected at all. Some MUD factions favor registering candidates, others believe doing so legitimizes the regime. The debate over this, so far, has caused significant splinters inside the MUD. Increasing the stakes and the uncertainty about future rules, the government seems to know it can weaken the opposition.
Is hard to foresee what will happen next. So far the MUD has not devised a clear public strategy to oppose the NCA. The opposition members in congress skipped the legislative recess and stayed legislating in the Federal Palace. However, it is unclear if the constitutional assembly will allow them to keep legislating.
The MUD also plans to keep up the pressure from the streets. However, the government has kept and increased its repression. There are alarming reports of human rights violations including house raids and torture. The government has also ordered the imprisonment of several opposition mayors across the country. In those conditions, it is uncertain whether the MUD will be able to keep up the protests.
Is it understandable that the opposition leaders have been somewhat ambiguous. The path forward is hard to formulate, and the MUD encompasses very diverse factions. However, silence and lack of clear leadership is not helping either. People are frustrated and a couple of weeks ago groups of former and current military officers claim to have taken arms against the government. At this pace, the crisis in Venezuela could potentially turn into an armed conflict.
In this sense, the opposition´s best hope seems to be the international community. 40 nations have refused to recognize the constituent assembly. So far, however, sanctions against the regime have been sparse, unilateral, and with no clear objective in sight. In order to be effective the international community, collectively and in coordination with the more moderate sectors of the opposition, needs to agree on a package of both, carrots and sticks, that drive the government towards a meaningful negotiation. That is, sanctions that increase the costs of staying in power as well as some kind of transitional justice package that could potentially and credibly lower the costs of stepping down.
Suggested Citation: Laura Gamboa, Symposium on “Venezuela’s 2017 (Authoritarian) National Constituent Assembly”–Like Quicksand: Opposing Venezuela’s Constitutional Assembly, Int’l J. Const. L. Blog, Sept. 2, 2017, at: http://www.iconnectblog.com/2017/09/symposium-on-venezuelas-2017-authoritarian-national-constituent-assemblylaura-gamboa
 Tom Ginsburg and Alberto Simpser, “Introduction: Constitutions in Authoritarian Regimes,” in Constitutions in Authoritarian Regimes, ed. Tom Ginsburg and Alberto Simpser, Comparative Constitutional Law and Policy (New York, NY: Cambridge University Press, 2014), 1–18.
 Michael Albertus and Menaldo, “Political Economy of Autocratic Constitutions,” in Constitutions in Authoritarian Regimes, ed. Tom Ginsburg and Alberto Simpser, Comparative Constitutional Law and Policy (New York, NY: Cambridge University Press, 2014).
 Andreas Schedler, “Sources of Competition under Electoral Authoritarianism,” in Democratization by Elections: A New Mode of Transition, ed. Staffan Lindberg (Baltimore: Johns Hopkins University Press, 2009), 179–209.