–Jose Ignacio Hernandez, Constitutional and Administrative Law Professor, Catholic University and Central University (Venezuela). Invited Professor, PUCMM (Dominican Republic), Castilla La Mancha and La Coruña (Spain), Senior Associate, Center for Strategical and International Studies.
Shortly after midnight on July 29, 2024, the chairman of the Venezuelan electoral management body announced that Nicolás Maduro had been reelected for a third term. This announcement was made without the support of electoral records and in violation of core transparency and accountability principles, following an election marred by electoral miscondut and human rights violations.[1] Many members of the international community, such as the European Union, have challenged Maduro’s proclamation due to a lack of accountability and transparency.[2]
This electoral misconduct did not occur in a vacuum. On the contrary, the decimation of electoral integrity conditions is a consequence of the Constitutional authoritarian populism implemented in a slow-motion process since 1999[3], boosted by abusive constitutionalism[4] and autocratic legalism [5]
The Venezuelan presidential elections present valuable lessons for identifying abusive constitutionalism and autocratic legalism, particularly regarding electoral integrity conditions.
Authoritarian Judicial Activism and the Rights of Civil Society
On October 23, 2023, the main opposition parties, in a coalition known as the unitary platform, together with NGOs, organized primaries to select the presidential candidate. This was not an internal election of political parties but a consultation promoted by civil society. More than two million Venezuelans participated.[6]
However, a few days later, on October 30, the Electoral Chamber of the Supreme Tribunal issued an injunction suspending the primaries, arguing that only the electoral management body can organize elections.[7] That judgment was a demonstration of abusive constitutionalism implemented by the autocratic use of courts[8] and authoritarian judicial activism.[9]
Identifying those abuses poses a challenge because it is necessary to differentiate abusive judicial review from lawful judicial review. That difference is usually blurred by the imprecise use of the lawfare expression, which can describe the authoritarian manipulation of judicial review or, instead, might be used by authoritarian regimes to reject checks and balances.[10]
Following the Venezuelan case, tracing a more precise distinction is possible. Abusive judicial review[11] required courts that were not independent of the government. Additionally, this abuse violated principles and values centered on human rights and the core components of constitutional democracy.
In this case, the Electoral Chamber acted without independence, offering a formalist interpretation of the electoral law that imposed arbitrary restrictions on the political rights recognized in Article 23 of the American Convention on Human Rights. This ruling was a clear example of authoritarian judicial activism.
Administrative Political Disqualifications and Inter-American Human Rights Law
To reduce electoral competitiveness, the General Comptroller Office has adopted administrative resolutions that prevent the exercise of the right to participate in elections as a candidate.[12] The Inter-American Human Rights Court has concluded that administrative decisions cannot deprive political rights but only by judgment issued by criminal courts.[13] However, the Constitutional Chamber of the Supreme Tribunal exerted judicial review to control the Inter-American Court’s opinion, rendering it inapplicable.[14]
In January 2024, the Administrative Chamber of the Supreme Tribunal, based on this precedent of the Constitutional Chamber, affirmed a purported administrative disqualification of María Corina Machado, the candidate elected by the opposition parties in their primaries.[15]
Beyond its constitutional appearance, that ruling was another case of authoritarian judicial activism. On the one hand, the Administrative Chamber is not an independent tribunal. On the other hand, the ruling violates the value of political pluralism, undermining the political human rights of the unitary candidacy.
Human rights Violations Concealed by Autocratic Legislation: Human Rights Hypocrisy.
As the Carter Center concluded[16], the Venezuelan elections were impaired by systematic electoral misconduct that, in addition, constituted gross human rights violations, following the conclusions of the UN High Commissioner for Human Rights,[17] and the Fact-Finding Mission appointed by the UN Human Rights Council.[18]
Those violations were implemented through a legalistic disguise. One example is the so-called anti-hatred law, adopted in 2017, approved to supposedly protect fairness in public opinion. The law includes stringent regulations to protect “peaceful coexistence”, prohibiting media from broadcasting “hate” speech (Art. 12). The use of messages to promote hate will result in the cancellation of political parties (Art. 11).[19] In reality, however, as the Electoral Observation Mission deployed by the European Union in Venezuela in 2021 noted, the purpose of that law is to reduce freedom of speech, which is not only a human right but also a cornerstone of Inter-American democratic standards.[20]
The autocratic legalism behind the anti-hatred law creates an interpretation problem. Under a textualist approach, this law appears as ordinary criminal legislation enforced by prosecutors and courts under the guise of due process. However, its essence is contrary to human rights.
In that sense, Venezuela demonstrates a specific variant of autocratic legalism: the hypocrisy of human rights, that is, the attempt of authoritarian regimes to simulate the adherence to human rights standards, for instance, with criminal legislation that fulfills due process, with the final purpose of avoiding international scrutiny.[21]
The criminal legislation that decimated the electoral conditions was a façade to simulate the fulfillment of due process standards. In essence, that legislation undermined core human rights related to democratic pluralism.
Judicial Review as a Tool to Hide Election Fraud
Shortly after the announcement of electoral results without any accompanying records, several members of the international community demanded the publication of the electoral results and an independent and international verification of the official tally of votes.[22] Instead, the Venezuelan President filed an injunction before the Electoral Chamber to defend the rights of the people and to audit the election.[23]
The abusive nature of that action can be determined by the Chamber’s lack of independence and the manipulation of its jurisdiction, which is limited to electoral disputes. The Chamber is not an administrative verification body.[24]
Lessons to Prevent Abusive Constitutionalism and Protect Electoral Integrity
The identification of hybrid or competitive authoritarian regimes has influenced the emergence of studies about the use of the constitution by authoritarian actors. However, non-competitive authoritarianism can also rely on constitutional formalities as a disguise, mainly to reduce the scrutiny of international bodies.[25]
The Venezuelan presidential election provides two main lessons to identify and deter abusive constitutionalism and autocratic legalism.
The first lesson is that the separation of powers matters. The difference between abusive judicial review and proper judicial review is not necessarily the content of the review but the autonomy and independence of the judiciary. A politically biased court is a gateway to abusive constitutionalism.
The second lesson is that textualism is not the best interpretative tool because there can be “constitutional decisions” (such as rulings by constitutional courts) that violate the Constitution. Therefore, interpretation should be based on principles and values rooted in human rights supremacy and the centrality of human dignity.
***
Faced with the atrocities of Nazism, Henrich Rommen concluded that, in the 20th century, dictators were masters of legality. In the 21st century, and considering the Venezuela case, we could conclude that dictators are masters of constitutionality. [26]
Suggested citation: Jose Ignacio Hernandez, Abusive Constitutionalism and Autocratic Legalism: Lessons From the Venezuela Presidential Election, Int’l J. Const. L. Blog, Aug. 7, 2024, at: http://www.iconnectblog.com/abusive-constitutionalism-and-autocratic-legalism-lessons-from-the-venezuela-presidential-election/
[1] For a recount of the basic facts, see our post “Maduro autoproclamado presidente ¿Y ahora qué?”, La Gran Aldea, July 29, 2025, at: https://laldea.site/2024/07/29/maduro-autoproclamado-presidente-y-ahora-que/ (7.31.24).
[2] European Union External Action, July 29, 2024: https://www.eeas.europa.eu/eeas/venezuela-statement-high-representative-josep-borrell-presidential-election_en?channel=eeas_press_alerts&date=2024-07-29&newsid=0&langid=es&page_lang=es&source=mail (7.31.24).
[3] Corrales, Javier (2022), Autocracy rising. How Venezuela transitioned to authoritarianism, Washington, D.C.: Brookings Institution Press, 21. See our previous post: José Ignacio Hernández G., Towards a Concept of Constitutional Authoritarianism: The Venezuelan Experience, Int’l J. Const. L. Blog, Dec. 14, 2018, at: http://www.iconnectblog.com/2018/12/towards-a-concept-of-constitutional-authoritarianism-the-venezuelan-experience/
[4] Landau, David (2013), “Abusive Constitutionalism”, in 47-1 U.C. Davis Law Review, 189 y ss. Recently, see Collot, Pierre-Alain, “Propos introductifs. Constitutionnalisme abusif et régimes hybrides” (2022), in Collot, Pierre-Alain(ed), Le constitutionnalisme abusive en Europe, Paris: Mare & Martin, 23.
[5] Corrales, Javier (2015) “Autocratic legalism in Venezuela”, in 26-2 Journal of Democracy, 37.
[6] “María Corina Machado sweeps the opposition’s presidential primary in Venezuela”, El País, October 23., 2024: https://english.elpais.com/international/2023-10-23/maria-corina-machado-sweeps-the-oppositions-presidential-primary-in-venezuela.html (retrieved 7.31.24).
[7] Ruling n° 12, October 30, 2023. The complete text of this ruling has not been published.
[8] Venezuela has long experienced the autocratic use of the Electoral Chamber. See: Urosa Maggi, Daniela, “Justicia electoral y autoritarismo judicial en Venezuela”, en 14 Revista Electrónica de Derecho Administrativo Venezolano, 317. See also Moustafa, Tamir, and Ginsburg, Tom, “Introduction: The Functions of Court in Authoritarian Politics” in Moustafa, Tamir, and Ginsburg, Tom (ed) (2008), Rule by law. The Politics of Courts in Authoritarian Regimes, Cambridge: Cambridge University Press, 1.
[9] Sánchez Urribarri, Raúl, “Authoritarian Judicial Activism; A Look at the Venezuelan Case Under the Chavismo”, in Hausegger, Lori and Sánchez Urribarri, Raúl (ed) (2024), Judicial Activism in Comparative Perspective, Peter Lan, New York, 2024,187
[10] Hughes, David, “What Does Lawfare Mean?” (2016), in 40 Fordham International Law Journal, 2; Martins, Cristiano Zanin, et al. (2022), Lawfare: Waging War through Law, New York: Routledge, 1, and Mérieau, Eugénie (2022), “Democratic Breakdown through Lawfare by Constitutional Courts: The Case of Post-“Democratic Transition” Thailand”, in 95 (3) Pacific Affairs, 475.
[11] Landau, David and Rosalind Dixon. (2020), “Abusive Judicial Review”, in 53-3 U.C. Davis Law Review, 1313.
[12] Hernández G., José Ignacio (2008), “La inconstitucionalidad de la competencia del Contralor General de la República para acordar la inhabilitación en el ejercicio de funciones públicas”, in 114 Revista de Derecho Público, 55.
[13] Inter-American Court, ruling dated September 1, 2011, in Leopoldo López v. Venezuela. That precedent was applied to the current Colombian President, who was arbitrarily banned. See the ruling dated July 8, 2020, in the case Gustavo Petro vs. Colombia. The Venezuelan government never fulfilled the Inter-American ruling, and the plaintiff is still banned and in exile. The Colombian government enforced the ruling, and the plaintiff is now the incumbent president of Colombia.
[14] Brewer-Carías, Allan (2023), Kakistocracia depredadora e inhabilitaciones políticas: el Falso Estado de Derecho en Venezuela, Caracas: Editorial Jurídica Venezolana, 123.
[15] Brewer-Carías, Allan (2024), Crónica constitucional sobre el secuestro de la participación políticas y las elecciones en Venezuela, que dejaron de ser libres, justas, plurales y transparentes (1999-2024), Caracas: Universidad Católica Andrés Bello, 717. There is no public record of the administrative ban resolution. The ruling was announced on January 24, 2024, but it has not been published.
[16] “Carter Center Statement on Venezuela Elections”, July 30, 2024, at: https://www.cartercenter.org/news/pr/2024/venezuela-073024.html (7.31.24).
[17] “UN rights chief urges free and open space for debate in Venezuela”, July 2, 2024, at: https://news.un.org/en/story/2024/07/1151766 (7.31.24).
[18] “Venezuela: UN Fact-Finding Mission expresses alarm over human rights violations in post-election context”, July 31, 2024, at: https://www.ohchr.org/en/press-releases/2024/07/venezuela-un-fact-finding-mission-expresses-alarm-over-human-rights (7.31.24).
[19] The law was enacted by the unconstitutional national constituency called in 2017. See Blanco-Uribe, Alberto (2018), “Ley Constitucional” contra el odio, por la convivencia pacífica y la tolerancia hipocresía autoritaria e ideologizada censura”, in 153-154 Revista de Derecho Público Nº 153-154, 266.
[20] European Union (2021), Mission of Electoral Observation, Final Report, 2021, 29, here: https://www.eeas.europa.eu/eom-venezuela-2021/final-report-moe-ue-venezuela-2021_en?s=4434 (accessed: 8.3.24).
[21] Cronin-Furman, Kate (2022), Hypocrisy and Human Rights. Resisting Accountability for Mass Atrocities, Ithaca: Cornell University Press, 1.
[22] “EU will not recognize Venezuela election result until all votes counted, Borrell says”, Reuters, July 31, 2024, at: https://www.reuters.com/world/americas/borrell-says-eu-wont-recognise-election-win-by-venezuelas-maduro-until-votes-2024-07-31/ (accessed: 7.31.24).
[23] “Venezuela’s Maduro asks top court to audit the presidential election, but observers cry foul”, AP, August 1, 2024, at: https://apnews.com/article/colombia-president-maduro-vote-count-venezuela-election-00d399b74300b6d1ed010bed9539a166 (accessed: 8.1.24).
[24] Brewer-Carías, Allan (2021), Derecho de amparo y acción de amparo constitucional, Caracas: Academia de Ciencias Políticas y Sociales, 305
[25] Ginsburg, Tom and Huq, Aziz, “How we lost constitutional democracy” in Sunstein, Cass (ed) (2018), Can it happen here? New York: Dey St., 151, and Tushnet, Mark, “Authoritarian Constitutionalism: Some Conceptual Issues” (2014), in Ginsburg, Tom, and Alberto Simpser, Constitutions in Authoritarian Regimes., New York: Cambridge University Press, 36, and
[26] Rommen, Heinrich (1998), The Natural Law, Indianapolis: Liberty Fund, xi.
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