—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: http://www.iconnectblog.com/2019/03/the-venezuelan-presidential-crisis-a-response/
Comments
5 responses to “The Venezuelan Presidential Crisis: A Response”
Dear Rafael Macia Briedis,
I wish to thank you for responding to the post I wrote a couple of weeks ago. I think you raised a point to which I fully agree: ‘the conflict has now exceeded the scope of Venezuela’s constitutional boundaries’. I agree with you that there is a fundamental flaw on how the Venezuelan constitution allows for the ‘self-negating’ forces of constitutionalism to emerge through the creation of a Constituent Assembly. This is a powerful idea you have brought forward. Francisco Monaldi, an economist, suggested in 2017 that articles 347-349 were a sort of ‘nuclear button’ that allowed the entire constitutional system to implode at the will of those who had the power to call for the establishment of such body. I do agree with you that it is ‘self-negating’ or at least self-defeating to the idea of constitutional government to include within the constitution a power to blur or ignore all the blueprints of the constitution itself. I am in the process of writing a longer piece for an edited book that touches on the nature of the Constituent Assembly.
I only wish to suggest that my claim regarding the legitimacy of Guaido’s mandate rests on the fraudulent elections held in 2018. I think that regardless of the disputed legality of the Constituent Assembly, the fact remains that the 2018 vote did not meet any threshold of democratic integrity. In my view, this fraud triggers the legitimacy of Guaido’s claim. In this sense, I believe that my argument rested more on this premise than on the legality of the Constituent Assembly itself to call an election. Although, I think that the way the election was called is only another evidence that showcases the undemocratic nature of the entire process. Adding an analysis of the Constituent Assembly to the discussion enriches the debate and permits us to ‘derive some important lessons from a constitutional perspective’ that my original post did not seek to address.
On a factual basis, I only wish to raise some differences between the constituent process of 1999 and the current one. It is true that in 1999 Hugo Chávez called for a Constituent Assembly ignoring constitutional procedure. However, the precedent that you suggested inspired articles 347-349 was in itself different to the mechanism used by Maduro. First, Hugo Chávez needed to comply with existing laws that regulated referendums. His first step was to call for a consultative referendum on the matter before calling for the election of representatives to the Constituent Assembly. This precedent created expectations that if the constituent power was to be called again it should be done through a referendum. Second, the 1999 process was carried, in its origins, with the ‘oversight’ of an independent Supreme Court and third, even the 1999 Constituent Assembly at least committed itself to the respect the 1961 Constitution until a new constitution was duly enacted. Today, article 348 seems to deny that a Constituent Assembly needs not to be bound by any other established branches of government or by the Constitution itself, this is a fundamental difference between the two processes. After two years, the current Constituent Assembly is far from even publishing a draft for a new constitution, which seems to suggest that the purpose of creating such a body was not to create a new constitution. An analysis of the debates they have been holding seems to suggest that drafting a new constitution is not their main objective.
I only wish to further the discussion raising a question you presented on your post. You suggested that Guaido’s claim also constituted an example of a ‘self-negating’ force of constitutionalism. I think I share your perspective that the solution attempted by the Venezuelan opposition seems to rely on constitutional principles and values to which there is no objective referee and the constitution itself seems not to provide sufficient guidance. However, it seems that the goal of this step, at least as the legal instruments adopted by the National Assembly suggest, is to restore the constitutional order that the opposition considers broken since the establishment of the Constituent Assembly. In this sense, it is not a ‘self-negating’ mechanism but an attempt to repair the broken constitutional order. I take distance from labeling both Guaido’s claim and the Constituent Assembly in the same way. I will be interested in learning your thoughts on why Guaido’s claim also constitutes a ‘self-negating’ force of constitutionalism.
Once again I am thankful for your intelligent and careful response and for analyzing this problem from a different angle. I believe you have raised some interesting ideas that deal with important lessons that can be drawn from the unfolding crisis.
Dear Rolando,
Thank you very much for your perceptive comment, and for furthering a discussion that I think is essential both for anyone interested in constitutional theory and for all of those who, like us, are concerned about the future of Venezuela. I definitely agree with you that Maduro’s reelection appears to have been fraudulent, and that if this is the case, Guaidó has a valid claim to the interim presidency under Article 233. The problem, as I see it, is that by recognizing an “original constituent power” that is by definition supra-constitutional, the constitution itself can no longer tell us whether the presidential elections that violated its own provisions were nonetheless properly convened by a body with the rightful authority to do so, if that body was indeed authorized by the constituent power. Therefore, the conflict hinges upon the legitimacy of the ANC’s claim to represent the people’s constituent power, but this conflict cannot in turn be constitutionally adjudicated insofar as the constituent power preexists the constitution and cannot consequently be defined by it (or else it would cease to be a constituent power).
This means that we may believe, according to our subjective appreciation, that the ANC and the presidential elections it convened were an undemocratic usurpation of power (as I think both of us do). But we will be unable to ground that judgement in an objective, written norm, given that the constitution has separated itself from the chain of democratic authorization that is essential in objectively determining whether the ANC’s origin and activities were valid. Because, in the end, all expressions of the popular will—not just those surrounding the election of the ANC and Maduro—are necessarily conditioned by the contingent (even arbitrary) procedures and exclusions that frame (and enable) such expressions; and the question is whether those procedures and exclusions are authorized by a prior normative framework that reduces the scope of ad-hoc arbitrariness. But that is precisely what self-negating constitutionalism is unable to help us with in the last instance.
At its core, self-negating constitutionalism is the incorporation of the theory of constituent power into the constitution itself: by bringing into the constitutional structure an institutional authority acknowledged to exist above the constitutional text, the constitution surrenders its own claim to operate as the self-contained source of democratic authorization. In so doing, it also forecloses the possibility of serving as the last instance of adjudication for political disputes (including disputes over the authority to represent the demos), and gives constitutional legitimacy to the resort to extraconstitutional mechanisms for the resolution of such disputes.
Thus, in response to your very valid question, I would like to clarify the following: what I think indicates a self-negating constitutionalism in Venezuela is not Guaido’s, or even Maduro’s, claim to be the rightful president. On the contrary, the self-negation comes through the fact that the constitution enables both of these mutually-exclusive claims while refusing to adjudicate their respective validity, since it recognizes a constituent power that one of the sides (Maduro) claims to represent and that by its very nature exists outside of the constitution—therefore being able to act in violation of the constitution itself even while enjoying some appearance of institutional legitimacy. In other words, Guaidó’s invocation of Article 233 is not a factor behind Venezuela’s self-negating constitutionalism; it is only an outcome of the constitution’s self-negation.
Once again, thank you for engaging with this idea that I am trying to advance, and for giving me the opportunity to clarify an aspect of my post that I agree might have been somewhat obscure. Of course, I would very much welcome any further observations or objections!
Very interesting posts. Although it is true that the text of the Constitution gives the President “the initiative to convene the constituent body (Article 348), without specifying any particular procedure through which that competence ought to be exercised”, I think the argument that a referendum was not *constitutionally* required is very hard to sustain. This is not only because of the role of the referendum in other aspects of the amendment process, but because of what Article 348 actually says:
Article 448: “The initiative for calling a National Constituent Assembly may emanate from the President of the Republic sitting with the Cabinet of Ministers; from the National Assembly, by a two thirds vote of its members; from the Municipal Councils in open session, by a two-thirds vote of their members; and from 15% of the voters registered with the Civil and Electoral Registry”.
If having the initiative to call a Constituent Assembly means that you can do so without a referendum, then it means that, just as the President, 15% percent of the voters (!) could so as well. I think that cannot be.
Dear Joel,
I think you raise an important point of constitutional interpretation, and one that is very reasonable. But, although I believe that such an interpretation makes perfect sense, I would point out two potential objections.
First, insofar as the constitution is enshrining a supposedly “original” constituent power—the one authorized to convene the ANC—, it doesn’t really matter much what the constitution says about how that power to convene is to be exercised, because if the constitution’s words were to be dispositive, we would no longer be able to talk of that power as “original” or “constituent.” I naturally think that this issue raises a number of constitutional paradoxes, which can be better explored elsewhere; but, overall, this is why I think we can ultimately speak of a “self-negating constitutionalism.”
Second, although Articles 347 and 348 do indeed imply a difference between the initiative to convene the ANC and the actual act of convening it (as your point about the 15% perfectly highlights), I am not convinced that we can automatically deduce form this insight that “the people’s” act of convening can only happen through a referendum. The reason is very simple: a referendum has no privileged claim to be the “actual” form of expression of the popular will, because it is a form just as mediated as, for example, an election, or even a decision by a chamber of representatives. After all, somebody has to (arbitrarily) decide what is going to be asked, what the possible responses shall be, who is going to be asked, what the conditions will be for considering a response to be affirmative (i.e., quorums, qualified majorities, etc.), and at what point in time is the question to be asked. All of these decisions need to occur before “the people” can express their will, and necessarily condition that expression. Therefore, if a referendum is the only “true” mechanism for the people to speak, this means that somebody will still be given the power to unilaterally define what counts as “the people,” and we would consequently still be faced with a rather thorny democratic problem.
In fact, I am convinced that even if there had been a referendum, that fact would have by no means solved the current dispute; it would have simply kicked the issue further down the field. The question would have then revolved around whether the referendum was convened in a proper manner, whether the questions and procedures were adequate… In short, there would have been a dispute about whether the results of the referendum would have indeed represented the people’s voice.
An alternative interpretation to the one you propose is to frame the difference between the “initiative” and the “act” of convening as one between the initiative to convene the elections to the ANC and the act of participating in those elections. Once again, I don’t see a particularly objective reason to treat elections as a somehow lesser expression of the popular will. It could very well be that what 15% of voters can do is convene elections to a constituent assembly, but not elect it themselves. Especially when Article 70 of the Constitution includes among the “methods of participation and protagonism of the people in the exercise of their sovereignty” BOTH the referendum AND the election of of public servants.
Not that I believe that this should be the interpretation of Article 348. I think there can be different plausible takes on the issue of the referendum, and yours is one I would tend to agree with. Ideally, it would be the constitutional framework itself that would solve this interpretative issue, but the problem with a self-negating constitution is that it refuses (both textually and conceptually) to do so. And, from a purely constitutional (rather than political or even moral) perspective, that is the problem in Venezuela.
[…] their representatives in the National Assembly—the country’s constituent assembly vested with supraconstitutional power and tasked with “transform[ing] the state.” The elections were fraught with controversy; the […]