—Rafael Macía Briedis, Center for Constitutional Democracy, Indiana University Maurer School of Law
In a recent I-CONnect blog post, Rolando Seijas-Bolinaga makes the case for the recognition of Juan Guaidó as the sole legitimate President of Venezuela. Although I certainly agree with his conclusions as to the urgency of replacing Nicolás Maduro at the head of the Venezuelan government, and as to the constitutional viability (if only by analogy) of Guaidó’s claim under Article 233—which states that the president of the legislature shall assume the presidency of the Republic if the latter becomes vacant—, I believe that there is more nuance to the constitutional issue at play than his analysis admits. Understanding that nuance, in turn, should help us derive some important lessons from a constitutional perspective that has been largely overlooked by most takes on the current crisis. I believe, in particular, that the legitimacy crisis now on display, featuring two competing claims (Guaidó’s and Maduro’s) to the constitutionally legitimate representation of the demos, can be traced back to Articles 347-49 of the Constitution, which provide for the possibility of invoking a Constituent Assembly whose alleged representation of the people’s original constituent power places it beyond constitutional control.
Despite the undeniably correct claim that Maduro’s reelection did not follow the requisite constitutional procedures—since it was convened and supervised by a Constituent Assembly that acted as a supreme electoral authority and stacked the deck in favor of the incumbent President—we must not forget that it is the Constitution itself that explicitly acquiesces in such a departure from its own provisions. It does so by recognizing in that same Constituent Assembly the power, not only to write a new constitution, but to “transform the state” (Article 347), while providing at the same time that “the existing constituted authorities shall not be permitted to obstruct the Constituent Assembly in any way” (Article 349). It is thus through the Constitution that the Constituent Assembly is enshrined as a seemingly supreme, unaccountable institution, an institution that is moreover understood in the constitutional text as the mechanism through which the people exercise their (by definition supra-constitutional) “original constituent power.”
The question we must ask, then, is not whether the 2018 presidential elections were convened in disregard of the Constitution, but whether the body that the Constitution itself authorizes to act in such disregard was in fact properly brought into being. This, however, is the very question that the Constitution refuses to answer for us. For, although the argument is often made that the 2017 National Constituent Assembly (ANC) was unconstitutionally convened, it is not clear that such an argument is supported by the wording of the Constitution. The text gives the President (at that point in time, indisputably, Maduro himself) the initiative to convene the constituent body (Article 348), without specifying any particular procedure through which that competence ought to be exercised.
One widely cited claim is that a referendum was necessary before the ANC elections could be called, because while Article 348 gives the President the “initiative” to convene the Assembly, Article 347 locates in the people the “power” to do so. Another argument is that the rules unilaterally designed by Maduro for those elections were blatantly undemocratic: they gave a significant role to oddly-defined corporate bodies in electing “sectorial” representatives, and provided for territorial representation by municipalities that grossly underrepresented large urban areas in favor of the more regime-supportive rural regions.
However, no referendum is explicitly provided for in Articles 347-49, beyond a vague claim that “the people” may convene the ANC. And there is no immediately compelling reason to reject the claim that such popular power to convene could in fact be satisfied through the people’s participation in the election of ANC members. The problem with relying on a distinction between the “initiative” and the “power” to convene is that the constitution does not specify the meaning of these terms. This is important because “the people,” as an artificial collective with a purely abstract will, cannot manifest that will in the absence of mediation. And, without some prior rule to signal how that mediation is to take place, no single mechanism can have an exclusive claim to serve as the objective or “natural” method for its expression.
This issue also brings us to the undemocratic nature of Maduro’s electoral norms, and highlights a problem much more fundamental than the interpretation of the word “convene.” The Constitution’s invocation of an “original constituent power” (as the one competent to convene the ANC) ultimately refers us to a power that, by definition, preexists the Constitution and serves as the source of its authority. Consequently, under Venezuela’s own constitutional logic—the logic of the Schmittian theory of constituent power that informed the 1999 drafting process—, the Constitution cannot be seen as laying down the conditions for the exercise of that superior power. In other words, the Constitution cannot operate as the rule for identifying the proper mechanism for mediating “the people’s” will, whenever that will is acting as a constituent power; that is (Art. 347), whenever it exercises its competence to “convene” the ANC. Article 349, by placing the ANC beyond the control of any “constituted” institution, only makes this reality all the more evident, and certifies the fact that the invocation of an “original” constituent power in Article 347 is no mere rhetorical flourish.
The Venezuelan approach to constitutional reform is therefore qualitatively different from cases in which a constitution does notlook for extraconstitutional sources of authority on which to base its own replacement, thereby keeping the reform process entirely within the existing constitutional order. The most immediate implication of the Venezuelan design is that any dispute about the democratic or undemocratic nature of the way in which the Constituent Assembly was brought about—that is, any dispute about whether the ANC actually represents the people’s supra-constitutional constituent power—can only take place outside of the Constitution. This automatically moots any critique of the ANC as unconstitutional, since the ANC’s very raison d’être is to serve as an avenue for the people’s ability to act as a power superior to the Constitution. Were that power to be subordinated to the Constitution through the latter’s regulation of its form of establishment or the limits of its competencies, it would cease to be an “original” constituent power and would become a mere “constituted” power. The same problem would occur if Hugo Chávez’s reliance on a referendum during the 1999 constituent process—which gave birth to the current Constitution, and which served as the model for the ANC of Articles 347-49—were to be cited as a precedent compelling a resort to the same mechanism in 2017, for in that case we would be subordinating the constituent power to the arbitrary choice of past political actors whose own preferred method was as heavily-mediated an expression of the popular will as any other. Indeed, in 1999 it was Chávez himself who, without any prior authorizing norm, unilaterally convened the referendum, designed the questions to be included in it, and specified the mechanism for its implementation.
The problem with this kind of deference to a supposedly original constituent power, however, is that taking the dispute outside of the Constitution simultaneously deprives us of any legible, self-referential grounds on which to judge the “democratic” nature of a given claim (such as the ANC’s) to represent the popular will, especially given the contingencies that must necessarily accompany the concretization of the mechanisms for the expression of that will. For example, the argument could easily be made that the choice of giving a voice to various corporate sectors, or to territorially-cohesive units such as municipalities, is a perfectly legitimate democratic option. After all, many democratic systems, including the American bicameral one, provide for the overrepresentation of less-populated rural regions. My point is that the answer this sort of questions will depend on the subjective appreciation of the beholder rather than on a common rule available to all stakeholders: once the constitution—through the recognition of an institutionalized yet supra-constitutional constituent power—surrenders its own pretense to serve as the self-contained norm of authorization for all democratic claims, it also surrenders its capacity to adjudicate institutional conflicts about the proper locus of democratic power.
This is what I call “self-negating constitutionalism,” and it is precisely what is currently on display in Venezuela. There, we find two competing claims, both grounded in the Constitution yet mutually exclusive, to governmental authority. On the one hand, Maduro is claiming constitutional authority to ground his own institutional legitimacy on a body—the ANC—operating outside of the Constitution thanks to its supposed representation of “the people’s” constitutionally recognized but supra-constitutional constituent power. On the other hand, Guaidó is claiming to act in defense of the Constitution’s integrity by challenging as inadequate Maduro’s invocation of a supreme power that the Constitution recognizes but does not regulate, and whose improper representation by the ANC would mean that we are indeed faced with the sort of power vacuum that Article 233 is designed to address. Precisely insofar as one of the claims refers to a supra-constitutional power, however, the constitution cannot be relied upon to adjudicate the conflict, and thus its resolution will have to depend on the capacity of the contending parties to overwhelm the other through an exercise of outright power. That is why both sides are currently putting their main efforts in courting the military to join their cause.
Thus, although our political sympathies may lie with Guaidó and the opposition, I believe that those sympathies should not blind us from the constitutional complexities—or shortcomings—surrounding the present crisis. On the contrary, it is our duty as constitutional scholars to identify the foundational flaws in Venezuela’s constitution responsible for priming the existing institutional conflict and rendering it constitutionally unresolvable. For it is precisely the Constitution that, by outsourcing the power of constitutional reform to an authority acknowledged to exist above the Constitution itself, negates its own role as the ultimate referent of democratic authorization. In so doing, it also enables Maduro’s abuse of power and gives at least facial validity to his pretense of institutional legitimacy. This appearance of legitimacy may in turn be just what the regime needs in order to keep the now all-important security forces undecided, and therefore more prone towards the maintenance of the status quo. It is my fervent hope that the outcome of the current crisis will be favorable to the opposition. But, in the face of a self-negating constitution, the materialization of such an outcome can no longer be premised on the critique of the other side as unconstitutional. For, unfortunately, the conflict has now exceeded the scope of Venezuela’s constitutional boundaries.
Suggested citation: Rafael Macía Briedis, The Venezuelan Presidential Crisis: A Response, Int’l J. Const. L. Blog, Mar. 14, 2019, at: https://www.iconnectblog.com/2019/03/the-venezuelan-presidential-crisis-a-response/