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/