Venezuela’s Enabling Law Could Also Enable the Opposition


Venezuela’s opposition and critics of the Chavez government around the world finally feel vindicated (again). The Venezuelan dictatorship that they have been predicting for the past eight years has, according to them, finally come to pass – for the sixth or so time. Already when Chavez was first elected in 1998 critics predicted Chavez would bring about a dictatorship in Venezuela. They kept having to revise their estimates for when this dictatorship would set in, though, because following each prediction of impending dictatorship Chavez would do something that completely negated the announcement.

For example, following his election in 1998, the first thing he did was to call for a referendum on whether to have a new constitution and held a vote for a constitutional assembly. When the constitutional assembly took on more powers than the legislature, opponents were again screaming “dictatorship,” except that the assembly proposed a constitution that was more democratic than the previous one.

Similarly, the 49 law-decrees of 2001 were another marker for the onset of the Chavez dictatorship, except that these laws democratized land ownership and access to credit in Venezuela, among other things. Then again, the April 2002 coup was justified with the story that Chavez was ordering supporters to shoot at opponents, except following the coup very few of the coup organizers were arrested. This pattern repeated itself again with the 2002-2003 oil industry shutdown and with the struggle around the 2004 recall referendum. Each time the opposition and international critics were forced to revise the start date of the Venezuelan dictatorship backwards, much like a religious cult that predicts the end of the world and keeps having to revise its doomsday date.

Now, with the latest series of Chavez’s moves, of asking for and getting a new enabling law, of not renewing the broadcast license of a TV station, of launching a united socialist party, and of proposing an indefinite number of reelections, Chavez’s opponents are at it again. This time, they say, Chavez is definitely stepping over the line. After all, what could be more dictatorial than “ruling by decree,” “closing” an independent TV station, forming a “single party,” and becoming “president for life”? If this were what is happening in Venezuela, it would be ominous indeed. However, these descriptions, taken from the opposition and the international media, are completely removed from what is actually happening in Venezuela. Let’s take a closer look at the “rule by decree” story, which poses risks, but not the ones that opposition analysts are hyperventilating about.[1]

“Rule by Decree”

Even a progressive media outlet such as the extremely popular radio program Democracy Now! adopted this terminology for the recently enabling law that Venezuela’s National Assembly passed.[2] After all, isn’t this the essence of what the enabling law means, that Chavez can “rule by decree”? The problem is that this term can cover a wide range of situations, but is often associated with the power of a dictator or monarch to issue any decree he or she pleases and that everyone must follow, no matter what. Classic examples of such power are the governing styles of an Augusto Pinochet or an Adolf Hitler.

In Venezuela, however, the enabling law is completely different from the above type of “rule by decree” in that it is limited in several ways. First, the President is bound by the constitution. He can only issue so-called “law-decrees” in the areas named by the National Assembly, in the time limit the Assembly imposes, and that are consistent with the constitution. In other words, he cannot arbitrarily order someone’s arrest or do away with basic civil rights, for example. Some of the laws even need to be submitted to the Supreme Court, which vets the law for its constitutionality.

Second, contrary to popular belief, even though Chavez supporters control all branches of the state, law-decrees can be reversed by the most important power of all: the citizens. That is, law-decrees can be rescinded by popular vote. According to Venezuela’s 1999 constitution all laws can be submitted to a referendum if at least 10% of registered voters request such a referendum. Law decrees have an even lower signature requirement, of only 5% of registered voters (800,000 out of 16 million registered voters).[3]

Third, the National Assembly may also modify or rescind law-decrees, at any time, should it feel the need to do so. This is quite unlike the enabling law in the U.S., known as the “Fast Track” law, where the president may sign international treaties that are automatically binding and not open to revision or rescinding by the population.

Will the Enabling Law Lead Towards Autocracy?

Venezuela’s enabling laws are thus relatively moderate measures as far as the common understanding of “rule by decree” is concerned. The next and more important question thus becomes whether such a law will lead to law decrees that end up being dangerous for Venezuelan democracy.

Chavez critics who concede the above points imply that even if the power is limited, the lack of separation between executive and legislative will lead to disastrous results. Exactly why this is the case is never explained, other than to say that there are no “checks and balances” between the two. Certainly, with Chavez supporters controlling the legislature, the controls on the presidency are not as strong as they would be if the opposition controlled them, but this is also true for just about any parliamentary system of government and any system in which the executive and the legislature are controlled by the same party. Oddly enough, Chavez critics hardly ever raise such dire warnings about other countries where this is the case.

More important than the question about “checks and balances” (which, as we saw, there are in Venezuela, in the form of the citizenry and the National Assembly), is what Chavez will do with the law. The main objectives for passing these laws, according to the enabling law text, is to promote “popular democracy,” to make the state more efficient, to eradicate corruption, to increase citizen security, to nationalize strategic industries, among many other things. If this is what the laws will actually do, then what is the fuss about? Presumably Chavez critics believe that Chavez will use the enabling law to pass completely different and tyrannical laws. But is there any evidence that this might happen?

If we look at the previous instance in which Chavez had the power of an enabling law, in 2001, this is not what happened. The 49 law-decrees that Chavez signed into effect in November 2001 had a democratizing effect, such as the land reform that democratized land distribution, the banking reform that improved access to credit for micro-entrepreneurs, the fishing reform that empowered small fishers to increase their catch because larger fishers have to fish further from the shore, or the hydrocarbons law that increased state revenues from oil production. Based on this previous experience, there is no reason to believe that this time around Chavez will not pass the types of laws that the enabling laws says he will.

What is more, polls by the Chilean NGO Latinobarometro have shown over and over again that despite all of the opposition’s dire warnings about Venezuela’s supposed slide towards dictatorship, Venezuelans themselves overwhelmingly believe that their government is democratic and is getting more so with every year. Eight years into the “Bolivarian Revolution,” and Venezuelans are in second place, after Uruguay, compared to all other countries in Latin America in saying that they are satisfied with their democracy. This percentage has been on the increase throughout Chavez’s presidency, rising from 32% in 1998 to 57% in 2006. Meanwhile, the Latin American average was 38% in 2006.[4] This and many other similar poll results flatly contradict the notion that Chavez is steadily heading Venezuela towards dictatorship.

Is the Enabling Law A Good Idea?

Once it is clear that the enabling law is neither dictatorial “rule by decree” nor will it lead towards dictatorship, it is still fair to ask whether the law is good for Venezuela. One should note, for example, that there is a contradiction between Chavez wanting to pass laws for introducing more participatory democracy and his doing so in a way that bypasses the democratically elected legislature. That is, having the executive devise and pass the laws is bound to be a less democratic process than via the frequently long-winded debates in the legislature. In other words, efficiency is being traded for debate and deliberation. Chavistas say this is a worthwhile trade-off because the Venezuelan people cannot wait any longer for social justice to arrive in Venezuela.[5]

While this is no doubt true, there is a serious risk that the cost of bringing about social justice now could end up being greater than people are bargaining for. First, the lack of careful democratic deliberation could bring about laws that are poorly formulated and ill-conceived and end up introducing fewer social improvements than would be the case with well deliberated and well formulated laws. In the end, the goal of introducing rapid social improvements could be set back further than they would have, had the legislature developed the laws.

Second, an even greater risk lies with the hardening of the general mindset (which is already quite strong in Venezuela) that laws from a strong leader are better than laws from a messy process of democratic deliberation. Such a mindset opens a slippery slope towards a belief that benevolent dictatorship is the best form of governance.

The third and perhaps greatest danger of introducing such an enabling law now, when its necessity is not obvious to everyone, is that it pushes even moderate critics of Chavez into the camp that believes that Chavez is heading towards dictatorship. While this by itself has never been a concern of Chavez’s and does not change much in the correlation of forces between Chavistas and opposition, it can change the dynamic within the opposition. Having people who used to belong to the moderate opposition, such as Teodoro Petkoff, join the people who say that Venezuela is a totalitarian dictatorship empowers, within the opposition, those who say that Chavez must be removed from power by any means necessary.

Of course, this is something that the opposition has been saying all along and has failed miserably in its numerous attempts to remove Chavez. However, if the opposition sees its options shrinking, it might become tempted to take up arms and launch a “contra war”-along the lines of the one that was launched against the Sandinistas in Nicaragua-against the Bolivarian Revolution. Such an occurrence, while apparently unlikely at the moment, is still a possibility and it becomes more possible with each excuse that Chavez gives the opposition, no matter how flimsy that excuse.

Finally, the international campaign to discredit the Chavez government has heated up again, as a result of the enabling law and the other new measures mentioned earlier. If this campaign should succeed now, where earlier such campaigns have apparently failed, the Revolution will no doubt lose badly needed international support. There still is a vast reservoir of sympathy and understanding around the world for the Bolivarian project, but this reservoir is not unlimited.

Chavez and his supporters should ask themselves whether the potential risks of loss of international support, of possibly poorer quality laws, of strengthening personalistic politics, and of the possible creation of a “contra” force are worth the supposed gain in efficiency in bringing about 21st century socialism. Venezuela is not heading towards dictatorship and the opposition Cassandras will have to revise their doomsday date for Venezuela yet again. However, it could very well head towards another period of uncertainty and destabilization if Chavez and his supporters are not careful.

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[1] The others will be discussed in later commentaries.

[2] “Do Chavez’s New Decree Powers Undermine Venezuelan Democracy? A Debate,” Democracy Now!, February 2, 2007

[3] Article 74 of the Constitution of the Bolivarian Republic of Venezuela.

[4] “Poll: Venezuelans Have Highest Regard for Their Democracy”, Venezuelanalysis.com, December 20, 2006.

[5] See, for example: “Why Aren’t You in a Hurry, Comrade?”, Venezuelanalysis.com, February 5, 2007.

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