Blog of the International Journal of Constitutional Law

A One-Two Knockout to Venezuelan Democracy?

The exploits of the Mexican Chavez family are well known to boxing fans. Beginning with Julio Cesar Chavez in the early eighties and moving on to his sons Julio Jr. and Omar in the present day; the family has earned many titles and championships through a combination of vicious one-two punches (wherein a first strike disorients and a second does the real damage) and a sheer stubborn unwillingness to go down for the count. In this they bear a striking similarity to their Venezuelan “tocayo” Hugo Chavez Frias, who in the last months of 2010 has landed two devastating blows to Venezuelan Democracy.

Punch # 1 – The Elections: In September of this year a paradigm shift took place in Venezuelan politics which went largely unnoticed internationally. The morning after the election, newspapers such as the Washington Post and New York Times ran stories about how the opposition had squeaked by with enough seats to break Chavez’ supermajority and could thus block some legislation and appointments—becoming relevant in a way it has not been since a disastrous decision to boycott the parliamentary elections in 2005 left them completely out of the governing process.

This was of course true, but the real story was that of the 67% of the electorate who cast their votes in the parliamentary elections, 52% of them did so against the candidates of Chavez’ ruling Socialist Coalition, thus marking the first electoral defeat, at least in raw votes, of ‘Chavista’ politicians overall since their rise to power in 1998.

The Venezuelan Constitution leaves a good deal of discretion to the government in assigning electoral values however, and pre-election gerrymandering turned this popular majority into only 69 seats for the various opposition parties whereas the government (with 48% of the vote) got to keep 96. This glaring discrepancy between voter intent and electoral results was a product of an electoral system tailor-made to preserve the revolution.

The Venezuelan opposition is much stronger in urban centers with high populations than in sparser rural areas. First of all, a loose alliance of parties made up of personal or private sector donations and volunteers, cannot hope to have the same penetration into the remote interior of the country as a monolithic ruling party with a full time workforce of many thousands, as well as the resources of one of the biggest nationalized oil companies in the world (PDVSA) at its disposal. It is thus in the urban districts where the opposition can bring together the resources to put forth a viable alternative to the government candidate. Furthermore, some of the worst effects of Chavez’ tenure such as a decaying infrastructure and high levels of urban violence (pivotal issues of the election) are most visible in the cities which are also where the vestiges of the largely opposition middle class can still be found.

The government knows this, so although out of the 24 states that make up Venezuela six of them (The Capital District, Miranda, Zulia, Aragua, Carabobo and Lara) account for well over half of the country’s population; they together hold around 40% of the seats in the National Assembly while much smaller districts in the interior are greatly over-represented and lack any opposition party structure or resources with which to launch a serious electoral campaign.

At the time of the elections the Venezuelan newspaper El Universal published an article highlighting a perfect example. To win a seat in the rural 2nd District of Apure State requires around 31,000 votes whereas to win a seat in the heavily urbanized 3rd Capital District would require well over three times that number of votes. Predictably, the Capital District’s 3rd seat went for the opposition on Sunday, while the 2nd District of Apure went to the government with 70% of the vote and high abstention. In fact, all of Apure’s districts went to the Government and if you group together all of the people who voted (for anyone) in all three of these districts and add them up you will still get fewer total votes than the roughly 125,000 people who voted for Richar Blanco, the opposition candidate who won in the 3rd Capital District.

Punch # 2 – Enabling Act of 2010: Last week, after heavy rain destroyed the homes of numerous Venezuelans, Chavez asked the National Assembly to empower him through an Enabling Act, ostensibly to facilitate state assistance for those affected by the rains. Predictably, the lame duck National Assembly obliged by granting Chavez 18 months of rule by decree.

Generally speaking, an enabling act is a piece of legislation wherein a legislature cedes complete or partial independence to another government entity (usually executive) which under normal circumstances would rely upon that legislature for authorization and legitimization of its actions. The term itself comes from the German Ermächtigungsgesetz, the 1933 law which allowed Adolf Hitler to circumvent the Reichstag for the sake of expediency in “remedying distress to The People and the Reich.” Many constitutions allow for such acts in cases of extreme need or national emergency so as to allow an executive to take temporary charge in a more expedient and decisive manner. Egypt’s leaders have been operating under an enabling act for over forty years.

As a legislative device, enabling acts are enshrined in the Venezuelan Constitution of 1999 which allows for presidents to “issue executive orders having the force of law, subject to authorization in advance by an enabling act.” (Article 236 – 8) The issuance of an enabling act requires The National Assembly to vote “with three fifths of the members…to establish the guidelines, purposes and framework for matters that are being delegated to the President of the Republic, with the rank and force of a law.” (ibid. Article 204)

Venezuela has a long history of utilizing this mechanism. Five presidents prior to Chavez were enabled at various times in the twentieth century and Chavez himself enjoyed 18 months of enablement from 2007-2008. Granted, in most of these cases the president held enough of a legislative majority that the enabling act merely streamlined his ability to get things done which would have likely been doable without it. What is different here is that when the incoming class of the National Assembly takes power next year, Chavez will not have the 99 votes necessary for the required 3/5 majority to get many of his initiatives through. Thus the passage of the Enabling Act of 2010 through an existing supermajority of a lame duck assembly essentially erases the result of the September election.

This enabling act has not been easily palatable to many Venezuelans and international observers. The opposition has loudly accused the President of subverting the constitution and bypassing the election. The Spanish newspaper ‘El Pais’ declared that the rise of a Venezuelan Dictatorship is no longer something to worry about in the future, as it is already here. Also, out of Zulia, the region containing the bulk of Venezuela’s Oil industry and one which has always had mild separatist tendencies, a mysterious and highly influential group calling themselves the Zulian Front for the Defense of The Constitution has arisen. The group has formed around protest against the passage of The Enabling act and calls for Zulians to refuse to cede their rights (and recently nationalized territories) to Chavez. The extent to which the people of Zulia will actually do this, of course, remains to be seen.

Thus, Chavez’ 1-2 punch has landed and it is Venezuelan Democracy which is down for the count. And while there remain perhaps small twitches of life in her, it is anyone’s guess if they will suffice to get her back on her feet.

–Daniel Lansberg-Rodriguez


3 responses to “A One-Two Knockout to Venezuelan Democracy?”

  1. Irony Road Avatar
    Irony Road

    Unfortunate, but I doubt that anyone is surprised by Mr. Chavez watering down democracy in order to continue his “Bolivarian revolution” despite the will of the people. As Keats once said, “There is no fiercer hell than failure in a great object.” We might recall from the memorable comments of Mr. Chavez at the United Nations a few years back that he recognizes the smell of sulfur, and we should conclude that despite his fiery oratory and love of the color red, Mr. Chavez will not accept the hell of failure.

    The real question is whether, in the absence of a strong and independent judiciary, there is any way to check abuses of a constitution by an executive authority. If there is a way I don’t see it, no matter the vote of the people. Unfortunate.

  2. Miguel Schor Avatar

    A judiciary cannot stand in the way of sufficiently strong political forces. There is no easy route to fashioning meaningful checks and balances but the job of the judiciary in doing so is somewhat oversold.

  3. Irony Road Avatar
    Irony Road

    Well, not to be tautologous, but a “strong and independent judiciary” would by definition be one that is able to resist political pressures. It is true that in the real world courts are just systems of humans and, as such, none will ever be entirely pure of political influence. At the same time, many courts have proved themselves able to remain independent in the face of political pressure.

    I would certainly agree that there is no “easy route” to balancing a government. Still, the role of a strong judiciary is hardly “oversold,” and a weak judiciary is the hallmark of executive authority run amok (as the recent case of Khodorkovsky in Putin’s Russia highlights).

    Are there any constitutional democracies where the judiciary is a weak pawn of the executive?

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