A New Constitution for Venezuela

President Maduro’s decision to call a Constituent Assembly appears to be a masterstroke to break the current political deadlock in the country and force a constructive national dialogue, in order to bring about Peace and better safeguard the Bolivarian Revolution’s social and redistributive advances, by ensuring they are less easily reversible in law. These have suffered severe setbacks in recent years, due to the complex external and internal factors that have contributed to today’s deep economic crisis.

Indeed, the move stands in stark contrast to efforts by neighbouring Brazil’s unelected leader to constitutionally ‘lock-in’ Neoliberal austerity for a generation or more.

Moreover, the Constituent Assembly would expand participation in the new Constitution’s drafting to 500 representatives (from 131 in 1999), in an effort to include historically marginalized sectors, such as workers, farmers, students, women, social movements, communes, SMEs, indigenous communities and people with disabilities.

For all the above reasons, the President’s decision is laudable.

Each sector will vote for its own representatives separately, while half would be put to a direct popular vote. Nevertheless, the president stated that the ballot will be “direct, secret and universal,” upon submitting the formal request before the National Electoral Council, which must now draw up the details for implementing the process.

Not surprisingly, the opposition has cried foul and denounced it as a fresh ‘self-coup’ by the government, despite the President’s constitutional mandate to trigger such a process (as per Article 348 of the Constitution). They argue that it is a means for the government to evade overdue regional elections it would likely lose, and manipulate the Constituent Assembly’s composition in its favour.

The split between a ‘sectorial’ and a direct vote is certainly unusual. However, there is a genuine case to be made for guaranteeing the direct participation of sectors usually underrepresented by conventional representative democracy, regardless of their political leanings. A telling contrast is that of the British Parliament, whose members are mostly from wealthy backgrounds, with a large proportion believed to be millionaires (there is currently no obligation for MPs to disclose their assets), and are therefore open to the charge of being out of touch with their constituents’ true interests.

Venezuelan regional elections should indeed have taken place last year as the current Constitution mandates, but have been put off due to a comprehensive party validation drive by the National Electoral Council, while one of its rectors acknowledged that the body “owed a debt to the country”. Moves by the opposition to launch a recall referendum on the President were also thwarted, through bureaucratic subterfuge and delaying tactics according to the opposition, while the government alleged irregularities in the process.

However, it must not be forgotten that much of the current crisis stems from the opposition’s perennial non-cooperation and all-out efforts to ‘level the political playing field’ back in their favour, by using the economic and international muscle at their disposal, as well as periodically wreaking havoc through street violence and effectively holding the country to ransom.

There are clear parallels here with efforts to “make the economy scream” under Allende’s Chile. While that was a different time and place, what has changed little is Washington’s desire to periodically ‘prune the roses’ in what it still considers its backyard

For its part, the opposition has lobbied banks and credit agencies worldwide to increase the costs of the government’s borrowing, also making it harder to import key goods, despite Venezuela consistently meeting its international obligations and having a foreign debt as a proportion of its GDP comparable to the region’s average.

Instead of working constructively to overcome the crisis, in the interest of all citizens, overtures for political dialogue by the government have been repeatedly met with attempts by the opposition to derail any economic recovery, the belief being that any such cooperation would ‘offer the regime fresh oxygen’.

The National Assembly’s obstructionism against international agreements by the government to help it deal with the crisis prompted the heavy-handed action by the Supreme Tribunal of Justice to take over its powers, which was later partially reversed. But the opposition seized upon the blunder to launch its current wave of political violence, further fuelled by the government’s debatable decision to bar opposition leader Henrique Capriles from running for political office.

Emboldened by ever more aggressive moves by OAS Chief, Luis Almagro, against the government, prompting Venezuela’s recent decision to leave the bloc, the opposition has since chosen to play hardball by demanding immediate general elections, which would be unconstitutional.

The government’s own failings and contradictions cannot easily be dismissed. Many commentators deride its claims of an “economic war” against Venezuela, and – not altogether unreasonably – blame the crisis on badly implemented price controls and a failure to fix exchange rate distortions. These have no doubt compounded endemic corruption, a deeply rooted and long-standing problem in Venezuela and across the region, which becomes all the more politically and morally untenable set against the present plight of most ordinary Venezuelans. All of this may help to explain the opposition’s surprisingly large margin of victory in the 2015 legislative elections, as many Chavistas chose to abstain or even vote against the government in protest, including in some of the Bolivarian Revolution’s key heartlands, such as Caracas’ emblematic working class neighbourhood of 23 de Enero. This revealed the greater than expected fragility of the Bolivarian project following Chavez’ passing.

The chickens also came home to roost on a mixed nominal (first-past-the-post) and list-based (D’Hondt method) system for the country’s legislative elections, rather than a more deeply democratic proportional representation system. This intricate arrangement was designed to favour the country’s prevailing political sentiment – usually synonymous with privileging the largest political force at the expense of smaller parties, but which in this case gave maximum expression to discontent across all sectors of society.

The same goes for the issue of indigenous representation, normally hailed as one of the Bolivarian Revolution’s points of honour, as the three indigenous legislators effectively held the balance of power for the crucial 2/3 majority in the National Assembly. One would normally expect this to be to the government’s advantage, given Chavez’ long-standing efforts to highlight the cause of indigenous communities. However, while special districts are drawn up in this case, all voters – whether indigenous or not – are eligible to vote, which has essentially turned indigenous legislators into mere pawns in the broader political struggle, and prone to manipulation, given the lower turnout at play. As such, it was relatively easy for the government to find fault in their election and submit a formal electoral fraud complaint before the Supreme Tribunal of Justice, which ruled that they be barred pending (a still ongoing) investigation. This is clearly an unfortunate and embarrassing situation, and it is ultimately demeaning for the government to have to turn against such a symbolically key historical constituency of the Bolivarian Revolution, in order to retain power, in what essentially amounts to expedient scapegoating. A new Constitution would do well to reconsider the issue of indigenous representation to avoid such pitfalls – perhaps by creating a separate indigenous parliament with representatives of each ethnicity, which could in turn appoint its representation to the National Assembly on its own terms – rotating or otherwise – in a way that maximizes their political visibility, integrity and independent agency. Moreover, indigenous citizens could freely choose whether they wish to be included in the national or indigenous electoral register, as with the Maori in New Zealand.

As an aside, a similar issue arose in India with the representation of Dalits or ‘untouchables’. Dr Ambedkar – an untouchable himself who went on to draft India’s Constitution – was a fervent advocate for their representation to be direct, but was eventually forced to come to a compromise with Gandhi (the ‘Poona Pact’), whereby their election was open to all of a district’s voters. This diluted their independent political influence and allowed them to be easily co-opted by local power structures against their communities’ interests, something that haunts India to this day.

Finally, the government has moved to expand its export base (and hence its sources of foreign revenue) in response to falling oil prices and production, by opening up 12% of the national territory to large-scale transnational mining operations. Commonly known as the ‘Arco minero’, it risks disproportionately enriching the new Chavista bourgeoisie and military class, who have also profited handsomely from the business of subsidized imports at the expense of domestic production. This clearly runs counter to official narratives around ‘sovereignty’ and deserves the scorn of anyone with an ecological conscience, as it reinforces our dysfunctional extractive and ‘rentier State’ model of development, rather than seeking to stimulate the national economy through smarter and less destructive alternatives that are in fact more viable.

Some among the international Left may argue that the most sensible course for Chavismo would be to cut its losses short and give in, if it is to stand a chance of returning to power. This view has some merit. However difficult to stomach among the diehards, showing some clemency towards political prisoners in particular – broadly branded ‘terrorists’ by the government – would be another step towards achieving Peace, and may help diminish the government’s ‘exit costs’. After all, Chavez was himself a political prisoner, following his not entirely bloodless coup attempt in 1992, but was granted amnesty two years into his sentence by then Conservative President Caldera. There is a measure of irony in hailing Chavez’ uprising as “heroic”, while criminalising opposition dissent – something Chavez himself was perhaps aware of, given his decision to show some leniency towards those who plotted the brief coup against him in 2002. An icon’s followers are often more vehement and uncompromising in their stances, and this may well be a hard sell for the government among its core supporters. The opposition certainly deserve the strongest condemnation for their subliminal and direct incitement to violence, but actually turning political prisoners into ‘martyrs’ of sorts in the popular imaginary of a significant portion of the population may ultimately present Chavismo with a hefty bill.

In political terms, every year Leopoldo López spends in prison beyond the time originally served by Chávez is arguably a liability for Chavismo in this regard.

On the other hand, it is equally naïve to believe that Chavismo would easily be given a ‘second chance’ by an opposition at the helm in its current form, given their strong culture of political retribution, lavishly on display in 2002. Their leadership has not changed significantly since then. Moreover, the fact that the country sits on the world’s largest proven oil reserves is the elephant in the room.

The opposition’s aim is clearly to reclaim political power at any cost, including sowing economic chaos and ungovernability, in order to restore a Neoliberal model of development in line with their interests, while neutralizing the threat Venezuela has posed to its hegemony and eroding hard-won social progress. Any economic recovery would likely involve some kind of stimulus package from the IMF and other multilateral financing bodies, with all the ‘adjustment’ conditions this implies, as well as vastly increasing the country’s debt. In true ‘Thatcherist’ crusading fervour, among the first bills passed by the opposition upon achieving a majority in the National Assembly was to privatize the Great Housing Mission. This is Latin America’s largest ever public housing programme, which has built 1.6 million units to date, and is probably the Bolivarian Revolution’s most formidable achievement. The TSJ was quick to strike down the move as unconstitutional.

Meanwhile, others could also cogently argue that the government has lost its moral standing, by recently seeking to hang on to power through every conceivable stratagem to avoid constitutionally-mandated elections, and is no better in terms of ‘selling out’ to transnational interests, even ensuring a compliant legal framework for their penetration, while bypassing critical democratic scrutiny of such operations. Venezuelans are already experiencing something at least as bad as Neoliberal structural adjustment or austerity because of ostensibly well-meaning but ineffective and contradictory policies in response to the current crisis. US President Trump’s inaugural ceremony received a generous donation from Venezuela’s CITGO in an unbecoming gesture of tribute, while basic medicines run scarce at home, often with traumatic results.

Are we condemned as Venezuelans to live in permanent disarray and animosity between competing extremes, permanently frustrating each other’s efforts and rowing in separate directions within the same boat?

Perhaps the issue for the Left is best framed as salvaging the Bolivarian Revolution and ensuring it stays the course, as opposed to ‘Chavismo’ as a political clan that may be faulted for having lost its originally luminous ideological and ethical bearings, as a result of being pushed into a defensive corner.

Few will deny that the first decade and a half of the Bolivarian Revolution saw unprecedented social progress, by putting the country’s oil wealth at the service of broader society. Poverty was practically halved, with Venezuela becoming Latin America’s least unequal country (followed by Uruguay), free education and healthcare were introduced in previously underserved areas, together with decent housing, and many excluded sectors of society were brought into the political arena like never before by doubling voter registration, as well as through new direct forms of participatory democracy. But it is also now clear that relying too heavily on high oil prices to sustain such progress, without seriously investing for the future, was both reckless and unsustainable, and much of the progress made has been reversed over the past 4 years alone, not entirely due to external factors…

The need to build firmer foundations for its endurance are long overdue, and political stability is now a prerequisite for economic recovery, not vice versa.

Should the government simply capitulate in an act of self-sacrifice, or should it do everything still in its power to ‘turn the tables’ on this state of affairs, in order to allow the people to truly decide what course they want the country to take, “free of blackmail and external pressures” as Elías Jaua, who presides the Constituent Commission, advocates?

I believe the Constituent Assembly certainly offers the opportunity to take the latter course, by expanding popular involvement in the drafting of a new Constitution and upending the opposition’s more radical elements.

However, calling for such a large-scale shakeup of the political rulebook from a position of relative weakness is fraught with risk and cannot be done irresponsibly.

There is a democratic acid test that such a move cannot afford to fail, which is to maximize the legitimacy of the new and improved Constitution by putting it to a national vote at the end of the process. Not doing so would jeopardize its transformative potential and be a great disservice to the Chavez legacy.

So far, the government has simply hinted that the finished product would be published in the Official Gazette (in keeping with Article 349 of the current Constitution), on the grounds that it will not amount to a new Constitution per se, but rather an expanded or improved version of the current one. This is clearly a dangerous, even reactionary position, which will betray a brazen intention to simply preserve power for power’s sake, in the eyes of most citizens.

In contrast, the 1999 Constitution was approved in a national referendum by 71.78% of voters and has provided the cornerstone of legitimacy for the current political order.

It sets an important precedent that cannot easily be sidestepped.

The 1999 Constituent Assembly even required a previous popular vote to validate the entire process (approved by 87.75% of voters), as the former 1961 Constitution made no provisions for changing it. While the current Constitution no longer requires this, since it does provide for its superseding and explicitly authorizes the President to trigger the process, it is more difficult to argue against a national vote to secure the final popular approval of a new Constitution.

The present Constitution does not specifically establish such a referendum. However, it implicitly alludes to it – with special reference to constitutional reforms – in Article 350, which states that:

“The people of Venezuela, true to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights.”

This implies that any new Constitution must meet with the approval of the people of Venezuela, who otherwise have a right to disown it.

By way of comparison, Ecuador’s 2008 Constitution, which draws direct inspiration from Venezuela’s current 1999 Constitution, and many see as building upon it, makes both prior and final referendum approval for a constituent process very clear in its final Article 444:

Installation of a Constituent Assembly can only be called by referendum. This referendum can be requested by the President of the Republic, by two thirds of the National Assembly or by twelve percent (12%) of the persons registered on the voter registration list. The referendum must include how representatives must be elected and the rules for the electoral process. The new Constitution, for its entry into force, shall require adoption by referendum with half plus one of all valid ballots cast.

Constitutions are about people rather than their text. Citizens need to be able to espouse them if they are to have any meaning as the birth of a fresh ‘social contract’.

We may already have what many consider to be among the world’s most progressive Constitutions. But precisely because of its idealism and exacting standards – arguably more aspirational than practical or true to our less affable realities – its celebrated status is of little use if it no longer adequately serves Venezuelan citizens, let alone effectively ensures the country’s stability and progress. Hence the current constitutional crisis.

Likewise, seeking to broaden popular participation in the drafting of any new Constitution while simultaneously denying its broader validation defeats its purpose.

There is reason for the Venezuelan government to be wary of such a popular vote to approve the new Constitution. Chavez himself famously lost a constitutional referendum in 2007 from a position of relative strength and economic abundance (oil prices were then fast nearing $100 a barrel). However, the consequences of failing to submit to the will of the people at large are clear in this case. It is the only way a new Constitution may serve as a vehicle for Peace and enable true political dialogue.

I do believe such a contest can be won with sincere argument and conviction.

In fact, it would be a vote that both the government and the opposition stand a chance to win, which in itself offers the conditions for a return to genuine democratic engagement and deflecting political violence. In particular, it would allow the opposition an opportunity to measure up as the ‘majority’ it so solidly purports to represent in its rejection of a Bolivarian Revolution, now likely reenergized beyond possible abstentions or protest votes.

A truly honourable and courageous position would be for the President to unequivocally announce a final referendum vote to approve any new or modified Constitution, while indicating that he would step down should he lose the vote.

It must be clear from the outset that there is no fear in submitting to the people’s will.

As Chavez continually showed us, victory requires humility and not taking popular support for granted, as well as assuming responsibility for defeat.

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