Raul Sánchez-Urribarri & Carlos García-Soto
Latrobe University & Central University of Venezuela
Editors’ Note: A number of pieces in this Symposium diverge slightly from our House Style by using footnotes. This has been accommodated for this Symposium but submissions in general should continue to use hyperlinks solely.
Venezuela’s current political crisis has its roots in December 2015, when the opposition won the majority of seats in the National Assembly. Since then, the country has suffered several political battles regarding the legitimacy of both the National Assembly and the Presidency of the Republic; against the backdrop of a deep social, economic and humanitarian crisis – characterized by chronic hyperinflation, scarcity of essentials and, more recently, the exodus of over three million Venezuelans to neighboring countries.
This summary essay offers different perspectives on the constitutional dimension of this crisis, including the disparate roles of the opposition-controlled National Assembly on one hand, and Nicolás Maduro’s Presidency, a politicised, pro-regime Supreme Court and, since mid-2017, a new constituent body called the ‘National Constituent Assembly’. The essay seeks to provide tools to understand the political background to Venezuela’s constitutional crisis.
Late 2015: A Hybrid Regime in Crisis
After the opposition won the National Assembly’s election in late 2015 by a wide margin, Nicolás Maduro packed the Supreme Court in a very controversial (and allegedly unconstitutional) appointments round, allowing him to count with an ‘authoritarian enclave’ against the National Assembly’s attempts to rein him in. For that purpose, Maduro took advantage of the final days of the 2015 legislative session of the National Assembly, controlled by a majority of pro-government deputies of the official political party (PSUV).
Right at the start of its term (early 2016) the Supreme Court suspended the swearing in of three legislators due to alleged irregularities, and declared the whole Assembly ‘in contempt of court’ for incorporating these members to the Assembly. This doctrine was invoked over and over in multiple decisions to declare the unconstitutionality of most of the National Assembly’s legislative work and other constitutional prerogatives. Some decisions were handed down in a matter of hours/days and requested by the President and other pro-regime actors. These were often ‘sham cases’ to block the Assembly, declaring all legislative and political decisions of the National Assembly as unconstitutional, undermining the 2015 popular vote that that elected a vast majority of opposition deputies. The Supreme Court’s Constitutional Chamber was the main actor of this saga, using its wide prerogatives as established in the Constitution, but also established over the years through their own ‘authoritarian activist’ jurisprudence. As Urosa (see this symposium) has argued in prior work, this shows the dangers of empowering constitutional courts in weakly institutionalized democracies vulnerable to populist takeovers and politicized, ‘loyal’ judiciaries.
In spite of this dynamic, the Venezuelan opposition still sought to rein in Maduro through two paths that would have surely lead to Maduro’s defeat: A Recall Referendum against the president (established in the 1999 Constitution and previously used, unsuccessfully, against Hugo Chavez in 2004) and the presidential elections that would eventually take place in 2018.
As the economic situation began deteriorating further (and inflation began spiralling out of control), the opposition pushed for the referendum to no avail. The electoral authority and several criminal courts delayed and then blocked the administrative process to convene a Recall Referendum. Moreover, in March 2017, the Supreme Court went ahead and stripped the legislature of its lawmaking powers, through decision N° 155 and 156. Whilst the Court reversed the ruling, this elicited months of ever-strong protests with a range of demands. As repression increased to unprecedented levels (dozens dead and hundreds wounded) and the opposition’s protests became bolder, Maduro convoked a constitutional convention (‘National Constituent Assembly’), a move that in on itself was unconstitutional.
The (Authoritarian) ‘Constituent Assembly’
The election of Maduro’s National ‘Constituent Assembly’ took place on July 30, 2017. The election was neither free nor fair, and it was boycotted by the opposition, allowing the ruling party to control 100% of the Assembly. It effectively allowed Maduro and the ruling party to count with a parallel Assembly to rule at will, seeking to take over the functions of the Legislature and make decisions in representation of ‘the people’. From that moment on, Venezuela’s Constitutional Order based on the 1999 Constitution has been jeopardized. It is used for legal arguments, routine judicial business and state action, but it can be sidelined by ‘Maduro’s Constituent Assembly’ as it seems fit. Venezuela’s regime can now be considered a dictatorship for all intends and purposes.
The Legislature (National Assembly) is still allowed to function, but it cannot effectively fulfil any of its roles. However, to the rest of the world, it is still a legitimate branch of power. One of the reasons why this matters is that, according to the Venezuelan Constitution, the National Assembly’s official authorization is required to enter into contracts of public interest – including further debt. This hampers the government’s ability to secure further financing to fulfil its obligations (or pay previously acquired debt). The lack of recognition of the ‘Constituent Assembly’ by many governments means that this body cannot play this role either (a position that is now reinforced in the post-Guaidó era). Additionally, the Legislature remained open as a ‘forum of deliberation’ and, well, the approval of motions or legislative acts that are unacknowledged by the rest of the regime apparatus and, therefore, toothless.
After the protests waned and the ‘Constituent Assembly’ began operating, the Venezuelan opposition was also largely discredited as a result of not being able to succeed prior to and after the protests. Most parties were banned from participating in further elections, and many of the opposition leaders are in exile, imprisoned or banned from participating. Hyperinflation set in, and the mass exodus of Venezuelans to neighbouring countries worsened.
Against this background, on May 20 2018, Maduro sought his re-election at a poll that was widely condemned by the U.S., Canada, the U.E. and the ‘Group of Lima’ (most Latin American countries, including Mexico back then). Russia, China, Cuba, Bolivia, Nicaragua and other Maduro allies approved of the election and recognized him as legitimate winner. The election counted with two main ‘opposition’ candidates, but neither of them were actually chosen by the opposition and had as main role provide legitimacy to an illegitimate poll. A large number of Venezuelans saw this as a sham election and refused to vote. Maduro ‘won’ his sham election, but the real numbers will never be known. It was the least contested, least attended presidential election in Venezuelan history.
Juan Guaidó Enters the Scene – Constitutional Claims
In January 2019, Maduro was sworn in by the Chief Justice of the Supreme Court Maikel Moreno in a public act made to bolster Maduro’s legitimacy at home and abroad (not before the National Assembly, as the 1999 Constitution orders). On the other hand, the Legislature (National Assembly) elected its new directive, with Juan Guaidó as President of the Assembly (or ‘Speaker’).
When Guaidó was sworn in as the new President of the National Assembly, he insisted in the need to follow three basic steps to end the current political and constitutional crisis: the end of the usurpation, a transitional government and free (and fair) elections. This is why Guaidó invoked article 333 of the Constitution when he swore in as interim President:
“Article 333 This Constitution shall not cease to be in effect if it ceases to be observed due to acts of force or because or repeal in any manner other than as provided for herein. In such eventuality, every citizen, whether or not vested with official authority, has a duty to assist in bringing it back into actual effect.”
On January 23, 2019 Guaidó decided to refuse to recognize Maduro as President (considering him an ‘usurper’), and invoking article 233 of the 1999 Constitution to act as interim president (given the absence of a president-elect via legitimate elections).
Article 233 of the 1999 Constitution states that in the absolute absence of the President elect in the period predating his expected oath of office, a new election must take place within thirty (consecutive) days. Article 233 also lists the situations that could be interpreted as an absolute absence. According to Guaidó, given that the 2018 Presidential vote was neither fair nor free, that there is an absolute absence of the President elect and new elections should be convene. The “Statute for the Transition” enacted by the National Assembly, rules that the thirty-day period to convene new elections will begin the moment Maduro leaves office. The major constitutional question has been on whether or not Article 233 could and should be applied the situation derived from Maduro’s fraudulent 2018 Presidential election.
There were many debates surrounding article 233 and the decision of Guaidó to be sworn in before a public gathering. There were also debates about his decision to be ‘publicly sworn in’ and not having taking oath before the Assembly. The basic interpretation that has prevailed, however, is that the country’s constitutional order has been broken long ago, and that the National Assembly had to act in order to restore it.
The National Assembly became active again, deciding to step in and approve the protection of Venezuelan assets overseas and represent the country before foreign powers (https://www.nytimes.com/es/2019/01/23/juan-guaido-nicolas-maduro/). Guaidó also designated diplomatic representatives in countries and multilaterals (such as OAS) that recognized him as a Interim President. The President of the United States, for example, accredited Carlos Vecchio as Venezuela’s ambassador to the United States, and the OAS recently did the same. Interim President Guaidó also designated a Special Prosecutor to recover State assets in other countries (José Ignacio Hernández, who is part of the present symposium).
As of today, the Venezuelan constitutional crisis can be seen from two key angles: on the one hand, the President of the most legitimate and representative body, the National Assembly, invoked the Constitution and declared himself as interim President, but has no real power to make governmental decisions within Venezuela’s borders. On the other hand, Guaidó has been recognized by more than 50 countries and is making decisions been recognized even by North American courts.
It is not easy to determine for how long this constitutional crisis could continue without a political solution. While the Maduro government still has not wrap its head around the fact that Venezuelans have the right to live in a free and prosperous country, Venezuelans are trying to surf the country’s worst-ever economic crisis and the dramatic deterioration of state capacity and public services, including devastating power cuts since March 2019. As this crisis unfolds, we can only fear that more Venezuelans will leave their homeland, seeking a better life in other countries.
Raul A. Sánchez-Urribarri is Lecturer (Assistant Professor) in Crime, Justice and Legal Studies at La Trobe University.
Carlos García-Soto is Associate Professor at Central University of Venezuela.
Suggested Citation: Raul Sánchez-Urribarri & Carlos García-Soto, 'A Primer to Venezuela’s Constitutional Crisis' IACL-AIDC Blog (29 April) https://blog-iacl-aidc.org/crisis-in-venezuela/2019/4/29/a-primer-to-venezuelas-constitutional-crisis
 See Allan R. Brewer-Carías, “El desconocimiento judicial de la potestad de la Asamblea Nacional para revisar y revocar sus propios actos cuando sean inconstitucionales: El caso de la revocación de los actos de designación de los magistrados del Tribunal Supremo”, in Revista de Derecho Público, N° 145-146, enero-junio 2016: http://allanbrewercarias.com/wp-content/uploads/2017/01/9789803653699-txt.pdf. On high courts as authoritarian enclaves, see Tamir Moustafa and Tom Ginsburg, “Introduction: The functions of courts in authoritarian politics.” In Tom Ginsburg and Tamir Moustafa. (Eds.) Rule by Law: The Politics of Courts in Authoritarian Regimes. 2008. Cambridge: Cambridge University Press, pp. 1-22.
 See Jesús María Casal Hernández, Asamblea Nacional conquista democrática vs. demolición autoritaria: elementos de la argumentación y práctica judicial autoritaria de la Sala Constitucional del Tribunal Suprema de Justicia, Universidad Católica Andrés Bello-Fundación Konrad Adenauer, Caracas, 2017 and Carlos M. Ayala Corao y Rafael J. Chavero Gazdik, El Libro Negro del TSJ de Venezuela: Del secuestro de la democracia y la usurpación de la soberanía popular a la ruptura del orden constitucional (2015-2017), Editorial Jurídica Venezolana, Caracas, 2017.
 See Carlos García Soto, “Claves para entender la crisis institucional en Venezuela”, in Lex Latin, 04-05-2017: https://lexlatin.com/opinion/claves-entender-la-crisis-institucional-venezuela.
 See essays by Venezuelan scholars written/translated into English criticizing the move: http://www.iconnectblog.com/2017/08/introduction-to-i-connect-symposium-venezuelas-2017-authoritarian-national-constituent-assemblyraul-a-sanchez-urribarri/. See also Allan R. Brewer-Carías and Carlos García-Soto (Editors), Estudios sobre la Asamblea Nacional Constituyente y su inconstitucional convocatoria en 2017, Editorial Temis-Editorial Jurídica Venezolana, Bogotá, 2018.
 See Rolando Seijas-Bolinaga, The Venezuelan Presidential Crisis, in Int’l J. Const. L. Blog, Feb. 21, 2019: http://www.iconnectblog.com/2019/02/the-venezuelan-presidential-crisis/. A different interpretation of the matter in Rafael Macía Briedis, The Venezuelan Presidential Crisis: A Response, in Int’l J. Const. L. Blog, Mar. 14, 2019: http://www.iconnectblog.com/2019/03/the-venezuelan-presidential-crisis-a-response/.