by Louis Dejeu-Castang
“Venezuela’s military is 90% against Maduro, claims defecting colonel.” “Venezuela’s opposition leader Guaido claims military backing.” “With reports of an attempted coup, military defections, is the end near for Venezuela’s Maduro?”
Thinking back to this time last year, headlines from major media outlets were plastered with reports about how the Venezuelan government was on the brink of collapse and Maduro’s private jet was being revved up on some Caracas airstrip. But Maduro is still in power. Guiado is not. And regardless of whether one saw the unrest in early 2019 as being a forlorn attempt at freedom by the downtrodden, or a misguided coup orchestrated by the United States, the fact of the matter is that for ordinary Venezuelans nothing has changed. Venezuela continues to top world misery index rankings, Venezuelans continue to watch the gradual decay of the last vestiges “Bolivarian” liberty, and the Maduro regime continues to assert its dominance over the judiciary. As much as Venezuela has disappeared from the headlines of mainstream news outlets, it is vital to remember that the people of Venezuela remain, often voiceless.
I. From constitutional republic to authoritarian petro-state
There are many events that one might point to as the end of the heady ideals of the “Bolivarian Revolution”. Economically it might make sense to point to the GDP contraction of 19% in 2016, or perhaps the 720% inflation the country saw that very same year. Symbolically, perhaps the death of Hugo Chavez. But for all the erosion of rights that took place between the birth of the revolution and the current, dire state of affairs, one might well wonder whether the Venezuelan Constitution may have foredoomed the revolution from its very inception? Well at face value the 1999 Venezuelan Constitution brought into effect by Hugo Chavez with questionable legitimacy is a well thought out, liberal constitution.
Chavez proclaimed (rather ironically with the benefit of hindsight), “neither the president nor Congress nor the Supreme Court, which are the maximum representatives of the constituted powers, can contrive to place themselves above, or put into a subordinate position, a sovereign elected assembly.”
Though an often ominous sign of a proto-demagogue, the new constitution derived its authority from the people of Venezuela, on paper sounding like a pretty good place to derive authority from. It allowed for the removal of the President by recall referendum, allowing for a direct means of holding the executive accountable. It created the position of a “public defender” tasked with defending the public and the constitution from potential attacks by the legislature. So far, so good. Chavez understood the volatility of many South American republics in the 20th century, often as a result of violent revolution or coup d’etat, and drafted this new constitution through a constituent assembly. In theory this “original constituent power” allowed for the revolutionary reform of the old institutions of government that had been marred by corruption and mismanagement, but in a peaceful and democratic manner. So on balance, the Venezuelan Constitution would not look out of place as the foundation of a modern, liberal democratic state. Although it radically altered the distribution of power in Venezuela, the Constitution did not stem from the wholesale destruction of the old order (which itself came from an earlier 1961 constitution), first being ratified by the old congressional body. The independence of the judiciary was unambiguously protected in Article 254, the conditions for equality before the law should have been perfect. But of course the content of the text itself only tells a partial story. We need context.
Chavez brought about his new constitutional order by repeatedly violating the old one. The power to create a new assembly with the ability to rewrite the constitution quite understandably did not exist within the old constitution. Using the idea that the “constituent power” of the people was absolute, thus making it more legally compelling than an old constitutional text from more than three decades ago, Chavez went ahead and secured a popular mandate for his reforms through referendum. The judiciary made its first fatal mistake by initially accepting the legitimacy of the referendum. At this point the Supreme Court of Venezuela was genuinely independent and reluctantly yielded to Chavez after a months long battle in the courts. Perhaps in order to reclaim some of the credibility lost during the failure to clamp down on corruption under the previous administration, perhaps caught up in the wave of genuine optimistic support for Chavez in a country that had been marred by social and economic troubles for years, the highest court in Venezuela ceded that a constituent assembly could indeed be formed. Indirectly, what they ceded was much more significant. In effect, the “constituent power” of the people, embodied by the Bolivarian Revolution, was elevated above the existing constitution and any checks and balances it might still have had. Hugo Chavez became the de facto interpreter of the will of the people, a force so powerful that it could (now with legal authority) supersede any legal or political barrier.
People often quote Napoleon Bonaparte as declaring “I am the constituent power.” Chavez didn’t even need to do this. By filling the Supreme Court and Constituent Assembly with his supporters and setting a precedent that the constituent power of the people could be used to justify actions prohibited in law, he could maintain the veneer of constitutional republicanism whilst wielding absolute power. During his first years in office the people of Venezuela enjoyed largely successful social policy, with many people being lifted out of poverty, and strong economic growth buoyed by rising oil prices. Initially, the judiciary appeared relatively independent, and though critics of the government noted a steadily creeping rise in press censorship, Venezuela remained a long way off authoritarian rule. At this point Chavez did not need authoritarian rule; why suppress opposition when public support for you is consistently high? Lawyer and activist Rodolfo Montes de Oca suggests that the trouble, particularly in regards to the judiciary independence, seems to begin in 2008. In late 2007 a referendum proposed by Chavez that would have seen major amendments to the constitution including the abolition of presidential term limits and allowing the President to declare an indefinite state of emergency was defeated. Months of student led to a major defeat for Chavez at the ballot box, one that the government ensured would not be repeated. In his concession speech Chavez repeated a line from his failed 1992 coup: “por ahora no pudimos”. “for now we couldn’t”.
II. The decline of judicial Independence
In the subsequent years, studies by international observers noted that public competition stipulation in the constitution for the selection of judges had fallen into disuse, substantially decreasing the transparency of the judiciary. From as early as 2006 the legitimacy of the Venezuelan judiciary is tainted by stories of Supreme Court justices chanting pro-Chavez slogans at the opening of the judicial calendar, which ought to have been a pretty unambiguous red-flag that the judiciary had undue bias in favour of the executive. 2008 and 2009 saw the mass appointment of “temporary” or “provisional” judges, allowing for further circumvention of the constitutional mechanisms put in place to ensure judicial impartiality.
The judiciary was also undermined by the fact that temporary judges (more than 50% of the judiciary in 2008) could quite easily be removed from their position. Provision 11 of the United Nations Basic Principles on the Independence of the Judiciary stipulates that “the term of office of judges […] shall be adequately secured by law”, largely to ensure that political actors cannot remove judges that disagree with their mandate, say for example if they disagreed with the outcome of a recent referendum. The 2009 judicial ethics code featured conveniently subjective grounds for dismissal, including a “lack of integrity” (Article 33). As the separation of powers became increasingly blurred, the number of judicial dismissals also increased. Tenured Judge Becerra was dismissed mid-way through the trial of a journalist, replaced by a new appointment who instantly nullified the previous proceedings. Chavez was even vocally critical of court decisions he opposed on his weekly TV show Aló Presidente.
“Do you believe that the Venezuelan people are going to follow an unconstitutional decision? Well, they are not.”
– Hugo Chavez referring to a First Court decision on Aló Presidente No. 161
In any country with a truly independent judiciary such a comment would be dismissed as irresponsible and would be met with immense political backlash. In Venezuela? The Minister of Health of Venezuela and several public officials disregarded the decision in line with Chavez’s criticism.
III. The Constituent Assembly strikes back
The death of Hugo Chavez in 2013 coincided with a huge economic downturn that saw the reversal of much of the progress that had been achieved in combating poverty and resulted in a massive shortage of consumer products. Chavez’s successor, Nicolas Maduro, lacked the gravitas cultivated over more than a decade by his charismatic predecessor. Combined with a collapse in living standards, even hardline Chavistas lost hope in the revolutionary project. The opposition took control of the National Assembly in 2015, with enough members to reach a supermajority. Under the 1999 constitution, this allowed for the issuing of a recall referendum against Maduro. Stepping in to prevent what would have been a substantial threat to the administration, in 2017 the Supreme Court stripped just enough opposition members of their positions in the Assembly to remove their supermajority, ironically alleging voting irregularities. In defiance of their ruling, the National Assembly swore in the opposition in its entirety, provoking a constitutional crisis. The Supreme Court took the extraordinary step of stripping the legislature of the power to legislate, allowing overwhelmingly pro-Maduro judges to create new law. Attorney General Luis Ortega Diaz, one of the highest ranking judicial figures in the country who had ruthlessly prosecuted opponents of the governmentfor a number of years took the yet more extraordinary step of declaring on national state television that there had been a “rupture of constitutional order“. Holding a copy of the 1999 Venezuelan Constitution in her hand, Diaz was so concerned with the collapse of the checks on governmental power that she opposed the very regime she had stood by for almost a decade.
Although removed from her office almost immediately for “misconduct”, Maduro did reverse the court’s decision (which one might argue was in itself a flagrant breach of the separation of powers). Taking a leaf from his predecessor, Maduro once again invoked the constituent power of the people in order to create a new assembly to draft a new constitution. In a widely disputed election that saw low turnout and a landslide victory for pro-Maduro candidates. So although the National Assembly was allowed to sit, it was now surpassed in power by a new body that went about stripping its members of their immunity and legislating in a way that was actually being enforced.
So dire was the situation for the separation of powers that a de facto executive controlled judiciary had suspended the power of the legislature and replaced it with another executive controlled body with the power to amend the constitution. In an absurd twist of fate, Maduro used the very same “constituent power” of the people that justified the 1999 Constitution to smother the last embers of the very rights it aimed to codify. Just as Rousseau’s volonte generale (general will) was used by consecutive revolutionary groups to extinguish the last, the Bolivarian revolution had effectively devoured its own children.
IV. Venezuela today
As the 2017 Constituent Assembly’s mandate is due to expire in 2020 a question remains as to its future. If its existence as an institution is to be continued there might well be another election, coinciding with the already planned National Assembly elections. One or both of these elections will likely be fraught with irregularities, resulting in more boycotts and bloodshed. The Constituent Assembly has stripped the President of the National Assembly of his immunity. It has, according to a report by the International Commission of Jurists in 2019, become a “de facto parliament, unlawfully assuming legislative powers”. The judiciary is simultaneously powerful, with its ability to act unencumbered by the neutered National Assembly, and impotent with judges having no real independence the government’s stance.
“The National Constituent Assembly has destroyed the fundamental pillars of the rule of law, including the separation of powers, citizen control over the public administration and political power, the independence of the Judicial Branch, and respect for human rights and democracy.”
– No Room for Debate: The National Constituent Assembly and the Crumbling of the Rule of Law in Venezuela, ICJ 2019
Although judicial reform might well come from the top, it is unlikely to be in favour of greater judicial independence and the voluntary relinquishing by the executive of its massive accumulated powers. But as much as Venezuela might well act as an apt cautionary tale about ever elevating something as manipulable as “the will of the people” above any political or legal boundary, it is important to remember that the lack of equality before the law in Venezuela is very real, and affects very real people. The fight for the fundamental right to justice continues, and as observers we have a responsibility not to look away. Opposition activists continue to be subjected to violence and harassment. Militias continue to act unimpeded by law enforcement. Even when the limelight has moved elsewhere, to some other topic deemed more newsworthy, we must not look away.
Photo sources:
Image 1: Wilfredor CCO
Image 2: Prensa Miraflores
Image 3: The Telegraph
