José Ignacio Hernández G.
Universidad Central de Venezuela & Universidad Católica Andrés Bello
Editors’ Note: This text is provided in the original format of the text provided by Professor Hernandez. As such, the text departs slightly from the Blog’s usual House Style in its use of endnotes. Submissions in general should continue to use hyperlinks solely and follow the Blog’s Submission Guidelines.
In the last years, Constitutional Law scholars have been studying the consequences of political decay in democratic regimes that are moving towards authoritarianism. The traditional dichotomy between democracy and authoritarianism vanished, and the reality of competitive authoritarianism or hybrid regimes – illiberal democratic regimes that preserve a thick patina of constitutionality – became clearer. Several experiences demonstrate that democracies can die under the shadow of the institutions designed to protect the Constitution –as for instance, Constitutional Courts.[i]
It is possible to revert constitutional decay? Venezuela could be a good example of how constitutional democracy can be rebuilt after the devastation caused by constitutional-authoritarian populism. But Venezuela also shows that constitutional decay can debilitate state capability –a necessary condition to ensure the supremacy of the Constitution.
Venezuela is facing a constitutional transition conducted by the Legislative Power –the National Assembly- in a complex process that faces a singular challenge: how to promote a transition based on the Constitution in a country with a fragile State and no rule of law.
1. The absence of an elected president and the usurpation of the Presidency
The origin of the Venezuela constitutional transition is based on the absence of an elected president the day that according to the Constitution began a new presidential term.
Articles 230 and 231 of Venezuelan Constitution state that the presidential term begins on January 10 of each term (the inauguration day). That day, according to the Constitution, the elected president must assume the presidency through an oath presented at the National Assembly.
Nicolás Maduro is claiming that he is the elected president because the Venezuelan electoral authority (the National Electoral Council) proclaimed him as Venezuela’s president after the May 20 election. However, that election was convened by an illegitimate national constituent assembly that does not have the authority to organize elections according to the Constitution. In addition, that process was organized in violation of several political rights, basically, due to the unconstitutional ban declared on the main political parties and leaders. Also, the May 20 election violated the principle of transparency during the electoral cycle. Finally, Maduro´s regime used the complex humanitarian emergency as a political tool to exercise coercion over the voters.[ii]
As a result, the May 20 process cannot be deemed as a legitimate election. On the contrary, it was a result of the usurpation of powers derived from the illegitimate and fraudulent national constituent assembly, as the National Assembly declared.[iii]
From a Constitutional Law perspective, this means that there was not an elected president on January 10, 2019, even though the Presidency has been occupied by the former President.[iv]
The Venezuelan Constitution does not provide a clear rule for that case. This is why the National Assembly decided to apply articles 233 and 333, to craft a constitutional solution.
Pursuant to the second paragraph of article 233, if the elected president cannot assume the presidency on the inauguration day, the President of the National Assembly will assume the presidency as interim president. Precisely, due to the absence of a free and transparent presidential election, there was no elected president in a position to assume the presidency. The National Assembly´s president, therefore, had the authority to assume the presidency as interim president.
But at the same time, Maduro is still occupying the presidency, because of the dismantlement of the rule of law. According to article 333 of the Venezuela’s Constitution, when the rule of law has been dismantled, the National Assembly has the authority to adopt extraordinary measures to assure the restoration of the rule of law.
To cover all these aspects, the National Assembly approved the Statute to Govern a Transition to Democracy to Re-establish the Full Force and Effect of the Constitution of the Bolivarian Republic of Venezuela (henceforth, the “Statute”). Its articles 14 and 15 established that the president of the National Assembly is the interim president under the control of the National Assembly. In addition, the Statute defines the general framework that will promote the end of the usurpation of the presidency (article 18).
In the meantime, the international recognition of Guaidó’s presidency by foreign countries has allowed the exercise of the international representation of the Venezuelan State. For that purpose, the interim president has appointed ambassadors. Also, and under the control of the National Assembly, the interim president appointed a special attorney-general that according to the Venezuelan Constitution has the exclusive authority to represent the Venezuelan state in judicial and extrajudicial disputes. [v]
Because of this, Juan Guaidó isn’t the self-declared president of Venezuela. He is the interim president under the authority of Article 233 of the Constitution, as the National Assembly’s president. It is the Constitution—not himself—that declared Guaidó as interim president of Venezuela, as was ratified by the Statute.
2. The end of the usurpation and the democratic transition
Article 2 of the Statute established that the democratic transition “is understood as the process of democratization and re-institutionalization involving the following phases: liberation from the autocratic regime that oppresses Venezuela, creation of a provisional Government for national unity, and holding free elections”.
The end of the usurpation of the presidency should be the result of the collapse of the pillars of support of Maduro’s regime, basically, the military and polices forces. That collapse could be forced by two combined tactics: increase the cost of obedience and decrease the cost of disobedience. International sanctions could help to achieve the first purpose, while amnesties and transitional justice could promote the second one.[vi]
The end of the usurpation will allow the interim president to assume the presidency and organize a new government with the political support of the National Assembly (article 25 of the Statute). With that condition, the last step of the transition could be achieved.
3. Free and transparent presidential elections
The last step of the democratic transition is the organization of free and transparent presidential elections, within the twelve months following the end of the usurpation (article 26, Statute). For that purpose, it will be necessary to rebuild the electoral integrity conditions with the support of the international community. Organizing failed elections under the present condition, will not solve the Venezuelan political crisis: only free and transparent elections, under the national and international standards of electoral integrity, will allow the election of a new, stable and democratic Government.[vii]
4. Statehood recovery under the rule of law
Not even fulfilling these three stages the transition will be completed. The transition in Venezuela needs to cover, also, the fragility of the State and the existence of organized crime within the weak state institutions derived from the kleptocracy of the Maduro’s regime.[viii]
Rebuilding states after a severe crisis like the one facing by Venezuela is not a short-term strategy.[ix] It will be necessary to reconstruct the rule of law and the checks and balances system. Also, it will be necessary to restore the monopoly of the legitimate use of the force –an essential condition to recover the Venezuelan statehood.
Without a capable state, there could be no Constitutional Law. Venezuelan demonstrates that rebuilding constitutional law in countries affected by authoritarian populism regime also require a transitional process aimed to reinforce the state capability to assure the constitutional supremacy.
José Ignacio Hernández G. is professor of Law, Universidad Central de Venezuela and Universidad Católica Andrés Bello. Currently Visiting Fellow at The Growth Lab, Harvard University, he was appointed as Special-Attorney General by interim president Juan Gauidó in February 2019.
Suggested Citation: José Ignacio Hernández G., 'We Can Work It Out: Crafting a Constitutional Transition in Venezuela' IACL-AIDC Blog (22 May 2019) https://blog-iacl-aidc.org/crisis-in-venezuela/2019/5/23/we-can-work-it-out-crafting-a-constitutional-transition-in-venezuela
[i] Among others, see: Graber, Mark A., Levinson, Sanford and Tushnet, Mark (ed), Constitutional Democracy in Crisis?, New York, NY: Oxford University Press. See my previous study in 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/
[ii] See: Urosa Maggi, Daniela and Hernández G., José Ignacio, Informe preliminar sobre la violación de las condiciones de integridad electoral en las “elecciones presidenciales” de Venezuela del 20 de mayo de 2018, Caracas, 2018.
[iii] National Assembly resolutions dated May 15, May 22 and June 12.
[iv] On March 24, Nicolás Maduro took a “oath” before the fraudulent national constituent assembly. After that, on January 10, he took another “oath” before the Supreme Tribunal. This was a constitutional fraud perpetrated with the purpose to create the illusion of a presidential legitimacy., See: Brewer-Carías, Allan, “El juez constitucional en Venezuela y la juramentación de Nicolás Maduro como presidente de la república ante el Tribunal Supremo de Justicia el 10 de enero de 2019”, at: http://allanbrewercarias.com/wp-content/uploads/2019/01/187.-El-Juez-Constitucional-y-el-juramento-de-N.-Maduro-el-10-1-2019..pdf
[v] Guaidó’s Government as been recognized as the legitimate Government in Venezuela by more than 60 countries and also the Inter-American Development Bank and the Permanent Council of the Organization of the American States.
[vi] See: Dahl, R. (1971). Polyarchy; participation and opposition. New Haven: Yale University Press.
[vii] About the consequences of failed elections, see: Norris, Pipa, et al (2015), “Contentious Elections: From Votes to Violence”, in Contentious Elections. Routledge, 1.
[viii] InSight Crime, Venezuela Mafia State, Washington D.C., 2018.
[ix] Andrews, Matt, et al (2017). Building State Capability, Oxford, Oxford University Press, 13.