A constitutional crisis forms a part of Venezuela’s wider political crisis.
The current constitution of Venezuela was drafted in mid 1999 by a Constituent Assembly created through a referendum. It was strongly promoted by Hugo Chavez and became law in December 1999, supported by 72% of voters.
An English translation of the entire document can be found here.
US supported opposition leader Juan Guido’s claim to be the interim president of Venezuela is based on an entirely improbable interpretation of article 233 of the Constitution. Article 233 deals with what is to occur when a President elect, or the President, becomes “permanently unavailable” to serve due to factors such as death, resignation or medical board certification of mental or physical incapacity. President Maduro has never been permanently unavailable to serve within the meaning of this article. Whatever issues there may be surrounding the legitimacy of President Maduro’s, any suggestion that he has become “permanently unavailable” to serve, whether before or after his Presidential inauguration, is fanciful.
But what are the allegations concerning Maduro’s legitimacy?
When first elected President in 2013, Maduro polled 50.61 % of the vote, 7.8 million votes, with 15 out of 19 million having voted. In May 2018, he was re-elected President with 6.2 million votes. He received 67% of the vote. But only 9.3 million of an eligible 20.5 million voted. Venezuela’s mainstream opposition, and some 5-6 million voters, boycotted this election.
In 2015 the Maduro government had lost control of the legislature, the National Assembly. The Opposition won over 56% of the vote in that election with Maduro’s party winning around 41%. 14.3 million out of 19. 5 million registered voters voted. This election gave the Opposition 109 0f 167 seats. With the support of three indigenous representatives, this gave it a three-fifth’s super majority. Under article 187 of the constitution a censure motion supported by a super majority of three fifth’s can remove the Vice President or a Minister (though not the President) from office.
Article 187 also sets out the functions of the National Assembly as the country’s legislative body. These include, for example, legislating in relation to matters of national competence, proposing amendments to the Constitution, approving the national budget and any taxation Bill, authorising appropriations in addition to the budget, authorising guidelines for the social and economic development plan to be submitted to the executive etc. It also has some unusual powers that have been subject to criticism by government opponents from the outset. For example, while in theory the Constitution supports separation of powers of executive, legislative, judicial and electoral branches of government, critics claim that, in practice, this is undermined by the powers given to the National Assembly. The National Assembly not only has powers to appoint, which is usual enough. It can also can remove Supreme Court judges, members of the National Electoral Council and other important public positions, without any requirement for proof of misconduct or other objective grounds.
In December 2015, just days before the newly elected National Assembly was due to be sworn in on 5 January, the outgoing National Assembly appointed 13 new judges and 21 substitute judges to the Supreme Court. The opposition alleged that the lame duck National Assembly was stacking the Court with supporters of the government. Allegations of “stacking” of the Supreme Court by the Chavista Government were made by Human Rights Watch as early as 2004.
On 31 December 2015 the Supreme Court blocked the appointment of three opposition deputies to the National Assembly. These deputies had been accused of vote buying and the court held there would need to be new elections for their positions. One Chavista MP was also blocked. This decision by the Court would deprive the Opposition of its super majority unless it was successful in the new elections. The National Assembly refused to comply with the Court’s orders. When it swore in the three opposition deputies that had been disqualified by the Supreme Court anyway, the Court determined, in July 2016, that the National Assembly was in contempt of the Court.
Supporters of Maduro argue that the opposition controlled National Assembly never really set about trying to implement any kind of constructive legislative agenda. This appears to be the case. Instead, reflecting the polarisation of Venezuelan society, the opposition’s agenda has primarily focussed on increasing pressure on Maduro’s presidency and reversing Chavista control of other key institutions of the state- the judiciary and the armed forces in particular.
In discussing why the opposition boycotted the 2018 presidential elections when a deteriorating economy would have given it a good chance of winning the presidency, Greg Wilpert, co founder of pro-Chavista website Venezuelaanalysis.com, wrote:
“The official (opposition) explanation is that there are insufficient guarantees that there will be no fraud…but even if the fraud concern were legitimate, no election in history has been successfully challenged with a preemptive boycott instead of participating and subsequently proving fraud.
The only other plausible explanation for a preemptive boycott is that the opposition does not want to win ‘only’ the presidency. That is, it wants a radical break from the Bolivarian Revolution and the only way it can do that is to provoke a political and economic crisis that would lead to a coup or some other form of radical regime change. That is, Chavistas continue to dominate not only the Supreme Court, the National Electoral Council, the Attorney General’s office, but also the National Constituent Assembly, which is in charge of re-writing the constitution.
Under such circumstances governing from an opposition-controlled presidency, even under Venezuela’s somewhat presidential system, would be extremely difficult.”
Later, in March 2018, when the National Assembly refused to approve the country’s state-run oil company from forming joint ventures with private companies, the Supreme Court determined that it would takeover the National Assembly’s legislative powers. The court quickly reversed its decision on April 1 after being asked to do so by Maduro.
Meanwhile, on 1 May 2017, President Maduro had issued a presidential decree creating a new Constituent Assembly. Article 347 of the Constitution says “original constituent power rests with the people of Venezuela. This power may be exercised by calling a National Constituent Assembly for the purpose of transforming the State, creating a new juridical order and drawing up a new Constitution.”
Article 348 of the Constitution lists a number of ways in which a Constituent Assembly can be initiated. One of these is initiation by the President and cabinet. But quite clearly, as its name suggests, the purpose of a Constituent Assembly under the constitution is a temporary one. It is to draw up a new constitution for consideration at a referendum. Indeed the Constituent Assembly which drafted Venezuela’s current constitution was created in July 1999 and was then dissolved six months later, in January 2000, because it had completed its functions.
Critics also point out that the 1999 Constituent Assembly was convened following a referendum. But the 2017 Constituent Assembly was convened by Presidential decree. It has also been alleged that Maduro drafted the electoral rules for the Constituent Assembly to favour his own party. The Opposition did not participate in elections for the new Constituent Assembly.
The Constituent Assembly has 545 members: 364 territorial members and 181 “sectoral” members. For the territorial seats, the rules ensured that rural districts (where Maduro’s support is greatest) have far greater representation. The sectoral seats represent different sectors of the economy, including workers, farmers and fishermen, students, people with disabilities, indigenous people, pensioners, business people. But to be eligible to represent a sector a person must first be “certified” as suitable.
In August 2017 the Constituent Assembly gave itself the power to legislate, superseding the National Assembly. It is effectively operating as the main legislative body because Maduro lost control of the National Assembly. In a televised address the evening before the vote, Maduro described the new Constituent Assembly as “a power that’s above and beyond every other. It’s the super power!”.
The Constituent Assembly has also dismissed the former Prosecutor General Luisa Ortega Díaz.
Ortega Diaz had previously been a strong supporter of Chavismo. But she had publicly challenged the Supreme Court’s decision to take over legislative functions from the National Assembly, which she called a “rupture of constitutional order.” In June 2017, Ortega Diaz had filed a petition before the Supreme Court to annul the appointments of all Supreme Court justices made by the outgoing National Assembly in December 2015. Unsurprisingly, the petitions were not successful. Ortega Diaz’s office had also alleged that in at least 10 of the 67 recorded deaths linked to anti-government protests, there was enough evidence for her office to charge security agents with killings of demonstrators or bystanders.
In relation to a new constitution the pro-Venezuelan government website Venezuelaanalysis.com has reported Constituent Assembly claims, from November 2018, that the text of the new draft constitution is 90% done.
There is at least one further article of the Venezuelan constitution that is worthy of mention. Article 350 states:
“The people of Venezuela, true to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights.”
But article 350 does not say what should happen if some of the people of Venezuela “disown” a regime, while others continue to support it. This is the situation which now prevails in Venezuela.
None of this history justifies US interference in the internal affairs of Venezuela or the economic sanctions that the US has imposed. But claims that the Maduro government has steadfastly supported legality and democracy do not stand up to serious scrutiny either.
A fundamental problem is that Venezuelan society is so deeply polarised. The preferable outcome would be that promoted by the governments of Mexico and Uruguay in the ‘Montevideo Mechanism’. The mechanism proposes a negotiated solution. But these have been tried and failed in the past.
From 2016, former Spanish socialist Party President Jose Zapatero was heavily involved in mediation attempts between the Venezuelan government and the opposition as part of the Union of South American Nations. When opposition leaders walked away from negotiations in the Dominican Republic in early 2018, (probably at the behest of the US administration) Zapatero persisted and tried to convince them to accept the conditions offered by Maduro to compete in the 2018 presidential election.
The Montevideo Mechanism would involve recognising Maduro as President. While there are issues hanging over his democratic legitimacy he is the de facto President and Guido holds no valid claims to the position whatsoever.
The actions of the US and its allies in promoting Guido as President do not advance the cause of peace. Indeed the most likely immediate scenario for Venezuela appears to be continued US interference, ongoing division and conflict, deeper economic deprivation as the latest round of sanctions bite and possibly civil war.
There are only relatively few voices for moderation. Jeffrey Sachs has called for temporary power sharing until elections, perhaps in 2021. He refers to the 1989 agreement between Poland’s communist government and the ‘Solidarity’ opposition as a precedent.
Former President of Uruguay, Jose Mujica thinks elections could occur earlier but would require very substantial support from the international community. And he says that for a political solution to work there must be an exit strategy for Maduro apart from “give in or give in” and threats from the US to send him to Guantanamo.
Mujica says that the aim must be to find a solution in which absolutely everybody can participate in a process of free elections including anti Maduro Chavistas and different currents of the opposition. “If we do not take a path like that of Mandala we will finish with war”.