Ready to Rumble: Referendum Facts & Law, Round II

Over and over again independent news outlets have had to step in and clean up misstatements, omissions, and outright lies the mainstream media reports about Venezuela and Hugo Chavez.  Now that the National Assembly has officially approved holding a new referendum on February, 15, 2009, we are certain to see members of the mainstream media revive the toxic rhetoric that Chavez is a "strongman" who needs to be stood up to before he "corruptly entrenches himself in power."  Actually I’m cheating; the Washington Post already got the venom rolling in a December, 2008 editorial making exactly these claims.


What follows are five questions/answers about the new referendum that will hopefully put future criticism of this very important vote into proper perspective.


Question 1: Isn’t this just the same vote that failed in 2007?


This is not the same as the 2007 proposal; it is dramatically different from the thing that failed two years ago.  The 2007 constitutional reform contained 69 amendments, whereas this proposal only has five and all relate to a single issue: abolishing term limits across elected offices (link in Spanish).  The first referendum was done in large block votes, so it is impossible to know how Venezuelan voters felt about the term limit proposal in isolation.  It is also worth remembering that the 2007 reform failed just barely, 51% to 49%.


While the term limit amendment was one of the most high profile changes, the negative vote may stem from other controversial pieces of the 2007 proposal.  To name three such changes voted on in the first referendum: i) President Chavez asked to assume administrative control over the previously autonomous central bank, ii) judicial oversight when declaring states of emergency was to be removed, and iii) the 90 day maximum limit on states of emergency was to be removed and personal rights and due process could have been suspended for as long as "conditions persist that motivated that state of exception."  All these proposals were in the first proposal, but not the new one.


Question #2: How could the 2009 vote pass if term limits were polling at 33% late last year?


The Post’s editorial from last month asserts that "both history and the polls say he cannot win this referendum without force or fraud."  As for history, the fact that Chavez is avoiding many of 2007’s most controversial proposals this time makes last year’s vote a lot less definitive than the Post seems willing to admit. 


As for the polls, they don’t say for certain but the Post is almost assuredly referring to a September, 2008 Econalitica poll that found only 33% of Venezuelan voters wanted to repeal term limits.  Perhaps this poll dooms the new proposal, but there are lots of ways to diminish the impact of the 33% number.  First, as noted by Econalitica director Michael Penfold, the poll itself only surveyed voters in 6 large urban areas, and not rural areas where the president’s popularity is greater.  Second, the poll was done almost three months before this new proposal got rolling and it is possible that some of those polled continued to associate "term limit removal" with the entire 2007 reform package they were against for other reasons.  Third, these polls can change quickly in Venezuela; Wilpert reported how 60% of voters were in favor of the 2007 reform three months before it failed.  A recent Panorama poll cited here indicates that public support has already shifted to 55.1% in favor of removing presidential term limits.


I’m not so much disputing the method or result of the September, 2008 poll so much as demonstrating that a victory for abolishing term limits in 2009 would not be so improbable as to demonstrate electoral fraud. 


Question #3: Does the fact the government proposed this vote instead of the people mean anything? 


Immediately following the first referendum, Chavez talked of wanting the people, not the government, to propose the second one.  The new proposal started in the National Assembly and not from a citizen’s initiative; some could point to that as evidence that Chavez is losing his grip on his country.


Don’t buy it.  This decision to have the vote start in the Assembly seems more out of expediency than from necessity.  Under articles 341-42 of the Venezuelan Constitution, amendments in Venezuela can legally come from the president, the Assembly, or 15% of registered voters via a citizen’s initiative.  In a show of symbolic support for the amendment, before their debate the Assembly was presented with signatures from 4.5 million Venezuelans.  4.5 million is more than 15% of Venezuela’s population, never mind how large a percentage of registered voters that represents.  It seems that a referendum could have come from a citizen’s initiative just as Chavez said he wanted; if Chavez even broke a promise here it was in form, not substance.


Question #4: Is this proposal legal under international law?


There is nothing inherently illegal about abolishing term limits in international law.  The vote just has to be free, genuine, and by universal suffrage under the International Covenant for Civil and Political Rights article 25(b) or the Inter-American Convention of Human Rights article 23(b).  A lot of people may remember groups like the UN, the Inter-American Commission of Human Rights, and Human Rights Watch all being unnerved by the legal implications surrounding the 2007 reform (the IACHR concerns are at ¶256 of that second link). However, all three groups based their criticism on parts of the reform other than the term limit removal.  These groups almost exclusively focused on the potential for human rights violations caused by increasing government authority during states of emergency; provisions that, once again, are not in the new proposal.


Question #5: Is this proposal legal under Venezuelan law?


It gets a little trickier as to whether another referendum may be held under the Venezuelan Constitution.  Opposition members are already saying that two constitutional referenda in two years on the same article is illegal.  Article 345 of the Venezuelan constitution says that, "A revised constitutional reform initiative may not be submitted during the same constitutional term of office of the National Assembly."  The Assembly’s current term does not end until elections in 2010, and this does look like a revision of the 2007 proposal, albeit a dramatic revision. 


Fortunately for Chavez, an amendment to the Venezuelan constitution can be proposed before 2010, avoiding the above language.  This oversimplifies things a little, but a reform is replacing parts of the Constitution, whereas an amendment just adds to or modifies an existing article in the constitution.  Under Article 340, you could propose amendments to the constitution without having to wait until 2010, so long as you don’t "fundamentally alter the structure" of the original constitutional article.  


Here’s how the current constitutional article on presidential terms reads:


Article 230: The presidential term is six years. The President of the Republic may be re-elected, immediately and once only, to an additional term.


The underlined part is the language to be removed if the referendum passes.  Can you legally rewrite just that part?  It seems to depend on whether you think changing the underlined section alters the fundamental structure or not.  You could definitely argue the fundamental structure remains intact with a term limit amendment.  After all, the President’s term is still 6 years and he/she can still be reelected; the only thing being modified is how many times the reelection may happen.  Even if a Venezuelan court were to reject that argument and say the underlined section is part of the article’s fundamental structure, the government or public could still propose a new reform in 2010 once the new Assembly term starts.


It’s a legal language dispute, and the legality of this new proposal may have to be decided in court to officially interpret the Constitutional provisions.  Regardless of how this turns out, anyone who says this new proposal is clearly/blatantly/outrageously illegal is being dishonest.  The only questionable legality behind the proposal is very technical, and there’s nothing in international law violated by the referendum process up to this point.


Last Thoughts:


I personally like term limits because they enable more people to participate in the political process.  However, if the majority of people in Venezuela choose to abolish term limits it hardly proves they are brainwashed, coerced, victims of some diabolical proposal hatched by Hugo Chavez.  The 2009 referendum has several things in its favor that the 2007 reform didn’t have, and the new proposal has a solid, if not perfect, legal grounding.


Hopefully this discussion will help the reader see things more clearly as the new referendum vote unfolds.  When the mainstream media starts lashing out with predictable indignation of the hell that is Venezuela, the best way to know what’s really happening is to understand the whole story in context.  I guess it might be easier still if they just reported the story and context in a balanced, accurate way, but then people like me would have nothing left to write about.


Matt Halling is in his final year of law school at University of California, Hastings and is the author of A Revolution on Hold: Assessing the 2007 Constitutional Referendum in Venezuela, available here.  He can be reached at matthalling@yahoo.com.

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