Towards a Concept of Constitutional Authoritarianism: The Venezuelan Experience

—José Ignacio Hernández G., Universidad Católica Andrés Bello, Universidad Central (Venezuela); Center for International Development, Harvard University

Democracy is in crisis. With this sentence Michael J. Abramowitz introduced the 2018 Freedom House report.[1] In a similar vein, Mark A. Graber, Sanford Levinson and Mark Tushnet recently concluded that constitutional democracy appears in trouble throughout the world.[2] Indeed, evidence demonstrates a slight democratic decline:

 

Liberal democracy index 1900-2017

Source: Varieties of Democracy V-Dem

https://www.v-dem.net/en/analysis/VariableGraph/

Within the context of threats against constitutional democracy, this post introduces the concept of “constitutional authoritarian populism” through the Venezuelan experience.

Authoritarian populism

The concept of constitutional authoritarian populism derives from the definition of authoritarian populism. Following Norris and Inglehart, authoritarian populism can be defined as a political discourse that aims to protect “the people” against the establishment through measures that favor obedience over liberty based on security and  conformity.[3]

Populism is a politically contested concept.[4] However, it can be defined as a neutral political discourse that recognizes the legitimacy of the people against the establishment or elite. It is a neutral discourse because it can be used to support a myriad of policies, including libertarian or authoritarian ones,[5] as demonstrated with the traditional populism of Latin America that reinforced the democratic pluralism[6]

However, risks arise when populism is used to impose authoritarian measures.[7] Charismatic leaders can use an anti-establishment discourse rooted in authoritarian values assumed by the voters to impose authoritative measures that exalt obedience and therefore, eviscerate the rule of law.

As was pointed out by Linz, political regimes are not abstract categories but mixed forms of government. Hence, the authoritarian populist regimes are a mixed form of authoritarian regimes which core element is the protection of “the people” against several “threats” created by the leader and represented in the establishment or elite. They are, therefore, non-democratic and non-pluralist regimes.[8]

Constitutional authoritarianism and constitutional populism

The concept of “authoritarian constitutionalism” describes a particularity of elected authoritarianism.[9] In that sense, authoritarian regimes can tolerate a limited space of freedom with restricted elections. However, those regimes are only subject to a veneer of constitutionality that does not result in real constraints on the government.[10]

Also, populism can influence constitutionalism.[11] The constitution can be seen as an instrument to protect the people against the elites. Latin American constitutionalism has a special connection with populism, through social rights that can be seen as instruments to defend vulnerable people against the elitist barriers that might hinder equalitarian development.[12]

But constitutional authoritarianism and constitutional populism should be differentiated according to their impact on constitutional democracy. Constitutional authoritarianism erodes constitutional democracy because it diminishes the scope of the rule of law and also hindered the electoral integrity conditions. On the contrary, constitutional populism might not erode constitutional democracy; far from it, it could reinforce it through inclusive policies that strengthen democracy, assuming that populism is a neutral political discourse, as was previously explained. [13]

Constitutional authoritarian populism from the Venezuelan experience

Constitutional authoritarian populism is the result of the convergence between authoritarian populism, constitutional authoritarianism and constitutional populism. In that sense, it can be defined as the constitutional institutions that support authoritarian policies adopted to protect the people against the establishment, specifically, against the so-called elites of representative democracy.

The concept that I propose is inspired by the so-called “new Latin American paradigm”.[14]  However, it is not a “Latin American paradigm”, but a set of principles adopted during the constituent processes in Venezuela, Ecuador and Bolivia in what has been considered as a resurgence of populism in Latin America.[15] Despite its regional origin, the concept can be applied to other realities in order to describe how authoritarian populism can be implemented through the appearance of a constitutional framework.

In that sense, the concept has three elements.

First, authoritarian populist values are recognized in the constitution and in the constitution’s interpretation adopted by the government and especially by constitutional courts commonly engaged in “constitutional hardball.”[16]   As a result, the constitution is not a political pact that protects citizens’ freedom towards the Government, but instead a political pact aiming to protect the people against the establishment or elites. An example is the use of exceptional powers by the Government to justify the protection of the people.

Second, this popular protection is reflected in a participatory democracy that prefers direct consultations with the people like referendums, over the mechanisms of the representative democracy. While the “us” is defined as the people’s direct power, the “them” is defined as the institutions of representative government. It is necessary to clarify that participatory democracy by itself does not contradict constitutional democracy; on the contrary, it can reinforce the accountability principle. However, authoritarian populism uses a distorted vision of participatory democracy, in which the supremacy is shifted from the constitution to the people’s direct power. An example is the use of referendums or public consultations to justify authoritarian measures to “protect” the people.

This idea of a direct democracy could be implemented together with the centralization of the Government’s political party. But even in this case, authoritarian leaders tend to promote direct consults with the people, as happened with the 2016 and 2017 Hungary and Turkey referendums.[17]

Finally, the supremacy of the people’s will is used as a means of protection against several “threats” that justify centralizing moves and strong powers by the government, typically the president. Just as populism requires a strong leader, constitutional authoritarian populism requires institutions that reinforce the president’s power. This is why authoritarian populist leaders tend to justify exceptional and authoritarian measures in order to protect the people against “threats” related to immigration, social inequality or globalization, among others, particularly invoking crisis or emergencies.

All these elements are present in Venezuelan constitutional law. Since Hugo Chávez’s election in 1999, constitutional law was modified through the idea of the supremacy of popular will. This was the justification of the 1999 constituent process that produced a constitution that tends to protect “the people” against the elites and that reinforce the presidency´s powers.  With the support of the Supreme Tribunal, Chávez promoted a “participatory democracy” that erodes the checks and balances system and helped to build a “communal state”, this is, a political organization based on the “people’s power” in place of representative democracy. Chávez invoked extraordinary powers to face several threats against the people, caused by political and economic elites. Later, Venezuela’s current president, Nicolás Maduro, amidst an unprecedented economic, social and humanitarian crisis, used this framework to call a new constituent assembly that has advanced the dismantling of Venezuelan constitutional democracy.[18]

The consequences of constitutional authoritarian-populism have been pointed out by Brewer-Carías in the Venezuelan case: the decimation of the rule of law, the concentration of powers in the presidency and, finally, the implementation of a tyranny that prevents democratic changes.[19]

In conclusion, while constitutional democracy is based on the protection of citizens’ freedom against the government, constitutional authoritarian populism is based on the protection of the people against the elites. As a result, the leader uses the constitution to legitimize a “direct government” of the people through public consultations and other institutions that intended to protect the people. Constitutional principles such as checks and balances are seen as mere obstacles that obstruct the political action of the Government in response to “threats” against the people.

Therefore, the proper theoretical framework to analyze the Venezuelan case is not constitutional authoritarianism, because it leaves aside the relevance of populism. On the contrary, the rise of authoritarian populism –not only in Latin America, but also in the United States and Europe – justifies the study of its influence over constitutional law, as demonstrated by the Venezuelan case.

Suggested citation: 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/

[1] Abramowitz, Michael J. (2018). Democracy is in crisis.  In Freedom in the World 2018. Highlights from Freedom House’s annual report on political rights and civil liberties, Washington D.C.; Freedom House, 1.

[2] Graber, Mark A., Levinson, Sanford and Tushnet, Mark (2018). Constitutional Democracy in Crisis?: Introduction. In Graber, Mark A., Levinson, Sanford and Tushnet, Mark (ed), Constitutional Democracy in Crisis?, New York, NY: Oxford University Press, 1. See also: Ginsburg, Tom. and Huq, Aziz (2018). How to Save a Constitutional Democracy. Chicago: University of Chicago Press.

[3] Norris, Pippa and Inglehart, Ronald (2019), Cultural Backlash: Trump, Brexit, and the rise of authoritarian populism. Oxford: Oxford University Press (forthcoming). This article is deeply influenced by Professor Pippa Norris’ works about the topic.

[4]  Müller, Jan-Werner (2016). What Is Popoulism. Philadelphia: University of Pennsylvania Press, 9.

[5] Mudde, Cass. (2004). The Populist Zeitgeist. Government and Opposition, 39(4), 541-563.

[6] Burgess, Katrina and Levitsky, Steven, (2003). Explaining Populist Party Adaptation in Latin America: Environmental and Organizational Determinants of Party Change in Argentina, Mexico, Peru, and Venezuela. Comparative Political Studies, 36(8), 881-911. See also: Mudde, Cass and Kaltwasser, Cristóbal. (2013). Exclusionary vs. Inclusionary Populism: Comparing Contemporary Europe and Latin America. Government and Opposition, 48(2), 147-174.

[7] Levitsky, Steven and Way, Lucan. (2002). The Rise of Competitive Authoritarianism. Journal of Democracy, 13(2), 51-65.

[8] Linz defines authoritarian regimes as non-democratic regimes that are not totalitarian. Hence, they should be based in a limited political pluralism without extensive political mobilization. Authoritarian populist regimes, on the contrary, are not pluralist –they divided the society between “us” (the people) and “them” (the elites). Adittionally, political mobilization could be use as a demonstration of the people’s protection. See Linz, Juan (2000). Totalitarian and Authorian Regimes. London: Lynne Rienner Publishers, 159-261.

[9] Ginsburg, Tom and Simpser, Alberto (2018). Introduction: Constitutions in Authoritarian Regimes, and Tushnet, Mark (2018). Authoritarian Constitutionalism: Some Conceptual Issues. both in Ginsburg, Tom and Simpser, Alberto (ed), Constitutions in Authoritarian Regimes. Cambridge: Cambridge University Press, 1 and 36.

[10] From a traditional comparative perspective, see: García-Pelayo, Manuel (1956), Derecho Constitucional Comparado, Madrid: Revista de Occidente, 198-205.

[11] Landau, David (2018). Populist Constitutions. University of Chicago Law Review, 85(2), 521-543.

[12] Carbonell, Miguel (2009). El neoconstitucionalismo en su laberinto. In Carbonell, Miguel (ed), Teoría del neo-constitucionalismo. Ensayos escogidos, Trotta: Madrid, 9-14.

[13] Not all populism approach constitutionalism in the same way. See: Rovira Kaltwasser, Cristóbal (2013). Populism vs. Constitutionalism? Comparative Perspectives on Contemporary Western Europe, Latin America, and the United States. Oxford:  The Foundation for Law, Justice and Society.

[14] Pastor, Viciano and Martínez, Rubén (2010), Los procesos constituyentes latinoamericanos y el nuevo paradigma constitucional. 25 IUS. Revista del Instituto de Ciencias Jurídicas de Puebla A.C. 7-29. See also: Palacio Romeo, Francisco (2010). La ruptura constitucional del estado precario: los derechos sociales en el nuevo constitucionalismo iberoamericano. La especificidad del modelo venezolano. 14 Agora: revista de ciencias sociales, 85-124

[15] Barr, Robert (2017). The resurgence of populism in Latin America. London: Lynne Rienner Publishers, 173-187. Also, see: Mendoza Botelho, Martín et al.  Populist-Constitutionalism in Latin America: The Cases of Bolivia, Ecuador and Venezuela. Working Paper. (Corresponding author)

[16] Tushnet, Mark. (2004). Constitutional Hardball, 37 J. Marshall L. Rev. 523.

[17] Ginsburg, Tom. and Huq, Aziz (2018). How to Save a Constitutional Democracy, 70-73.

[18] Landau, David (2018), Constitution-making and authoritarianism in Venezuela: the first time as tragedy, the second as farce. In Graber, Mark A., Levinson, Sanford and Tushnet, Mark (ed), Constitutional Democracy in Crisis?, p. 161-176.

[19] Brewer-Carías, Allan (2018), La justicia constitucional, la demolición del Estado Democrático en Venezuela en nombre de un “nuevo constitucionalismo”, Editorial Juridica Venezolana Internacional, Panamá, 236-280.