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14 Jul 2017 | Commentary

Q&A: Venezuela’s Undemocratic Push to Rewrite its Constitution Explained

Background This piece was originally published on WOLA's "Venezuelan Politics and Human Rights" blog, a unique resource for journalists, policymakers, scholars, activists and others interested in understanding the current situation in Venezuela.

On July 30, the Venezuelan government intends to hold a public vote to select delegates to a National Constituent Assembly, which would begin rewriting the country’s Constitution. As local human rights organizations, Venezuelan judicial experts, opposition figures and Chavista dissidents have pointed out, this effort is clearly unconstitutional and threatens to disempower Venezuelan citizens for years to come.

Why is the government of President Nicolas Maduro pushing to rewrite the 1999 Constitution, which was supported by his predecessor, the late Venezuelan President Hugo Chavez?

The current Constitution came out one of Chavez’s first promises upon taking office: to create a new magna carta that reflected the needs of a long-ignored majority in the country. Chávez took the proposal to the people by referendum and it was approved by over 80 percent of voters in April 1999. Members of the Constituent Assembly were selected in July and the Constitutional Assembly was seated in August. The resulting document was ratified by roughly 72 percent of voters in December of that same year. Although abstention rates in these votes were high (between roughly 50 and 60 percent of the electorate failed to vote), the 1999 Constitution was embraced by Chávez and his governing United Socialist Party (PSUV) as the founding document for the creation of a new national project.

By contrast, Maduro’s May 1 convocation of a National Constituent Assembly contained none of the democratic legitimacy of his predecessor’s effort. It is not the initiative of a newly elected leader riding a fresh societal consensus. Rather it is the initiative of an unpopular leader avoiding fair elections at all cost. In 2016 the Maduro government used its control over the National Electoral Council to indefinitely suspend a presidential recall referendum and postpone elections for governors. The Constituent Assembly is clearly and effort to change the rules to avoid being voted out.

Even though the National Electoral Council has announced that state elections will be held in December 2017, the fact that the government is moving forward with an effort to create a new Constitution that could potentially override all other powers renders assurances of a post-July 30 electoral calendar essentially meaningless.

How exactly does the Maduro government’s convocation of a National Constituent Assembly violate the current Venezuelan Constitution?

The initiative is fundamentally unconstitutional and undemocratic from its inception, which has been highlighted by Venezuelan legal scholars like José Ignacio Hernández as well as international human rights organizations like WOLA. Put simply, it conflates two separate steps: initiating the call for such an assembly and actually convoking it. According to Article 348 of the 1999 Constitution, the President has the right to initiate a call for a Constituent Assembly. However, Article 347 says it is the people who exclusively have the right to convoke a Constituent Assembly.

During the 1999 debate, the current head of the presidential commission on the Constituent Assembly, Elias Jaua, explicitly recognized the distinction between the initiation of a call for a new constitution and the importance of holding a referendum on this proposal. In a 2008 speech, Chavez appeared to make reference to this difference as well.

Essentially, Venezuelan voters are not being empowered to say whether or not they want to rewrite the Constitution, only who they want to do it. While Maduro has suggested that this Constitution would be submitted to voter for approval, the fact that the entire initiative has not been put before voters in the first place raises doubts about the ability of the electorate to reject a new national charter once configured.

How have the criteria for the selection of members to the Constituent Assembly “stacked the deck” in favor of the government?

On July 30, the National Electoral Council (CNE) has announced that Venezuelans will be electing 545 members of the Constituent Assembly. Of these, 181 positions will be “sectoral,” which the government has portrayed as representatives of all walks of Venezuelan life, and 364 positions will be reserved for “territorial” representatives of each of Venezuela’s municipalities.

The 181 sectoral members of this body will come from eight broad sectors: indigenous constituents (with 8 representatives), students (24), peasants and fishermen (8), entrepreneurs (5), people with disabilities (5), pensioners (28), community councils (24) and workers (79). However, the fact that many of these will come from government-affiliated organizations that make up the PSUV base gives Chavismo a clear advantage.

The division of territorial representatives to the Constituent Assembly provides a similar advantage to Chavismo. Instead of apportioning representatives according to population size, each municipality will receive at least one representative, while the 23 municipalities that are state capitals—as well as the Capital District of Caracas—will each get two. This gives outsized weight to rural municipalities with low populations, and minimizes the say of voters in populated urban areas.

Eugenio Martínez, a leading Venezuelan electoral analyst, writes that if municipalities voted the way they did in the legislative election that resulted in an opposition landslide in December 2015, Chavismo would win a majority (54 percent) of representatives to the Constituent Assembly on July 30. But economist Francisco Rodriguez has argued that while that is true, if the opposition over performed their 2015 result by a couple of percentage points, they would win the majority of the delegates. And if they were to get two thirds of the vote, they would win over 70% of the Constituent Assembly.

In any case, all of this is moot now because the opposition has declined to participate in the Constituent Assembly. That means Chavismo, which is now the minority political block in Venezuela, will have free reign to rewrite the Constitution.

What kind of Constitution would the government propose in the likely event that its supporters obtain a majority of the National Constituent Assembly on July 30? 

Assuming the Maduro government is successful in rewriting the constitution, the exact nature of the new document remains an open question. However, there is substantial evidence to suggest that a new constitution could see Venezuela adopt a system radically different from the federal system and representative democracy it has known heretofore.

Maduro has often claimed that one of the last instructions given to him by Chávez on his deathbed was to advance the “communal project,” a reference to a process that began in 2006 and involved the creation and integration of “communal councils” into the state apparatus. The number of these councils, which began as an experiment in participatory democracy and facilitating community organizing to meet local needs, is claimed to be over 45,000. Their administration falls under the Ministry of the Communes and Social Movements, a fact that opponents have pointed to as evidence of an effort to create a parallel state. The plan to create a “communal state” would involve a pyramid-like structure that begins with communal councils, which are aggregated into communes, then communal cities and every larger structures with the executive branch at the top.

Voting would likely take places through consensual procedures in assemblies, rather than direct, universal and secret voting.

(See here for Maduro’s repeated references to “re-founding Venezuela” and his vows that the Constituent Assembly would be “profoundly communal.” See here for past assertions that “new democracy is communal democracy.”)

What is the opposition planning in response? What are dissident Chavistas saying?

Ever since Maduro first announced a plan to convene a National Assembly, the opposition Democratic Unity Roundtable (MUD) coalition has loudly rejected the proposal, and vowed to refrain from participating in it. Instead, the MUD has continued organizing rallies, marches, and demonstrations against the Maduro government, and has insisted that the Constituent Assembly be abandoned.

As the scheduled vote approaches, the MUD is stepping up its attempts to highlight the Constituent Assembly’s lack of democratic legitimacy. On Sunday, July 16, the MUD will hold a nationwide referendum on the issue that, while not endorsed by electoral authorities, the opposition will hold as evidence that Venezuelans reject Maduro’s initiative.

If such pressure fails and the July 30 vote goes ahead as planned, the opposition’s next move is unclear.  A number of opposition lawmakers have supported the idea of mass mobilizations on July 30, and National Assembly President Julio Borges has said the MUD has a “well-prepared plan for national protests to prevent it.”

The MUD has not been alone in rejecting the initiative. Independent Attorney General Luisa Ortega has been a vocal challenger of the Constituent Assembly, and she has been joined by other voices within the growing faction of “dissident” Chavistas, like former Interior Minister Miguel Rodriguez Torres, former Ombudswoman Gabriela Ramírez Pérez, and two high court justices.