Rafael Macía Briedis
Center for Constitutional Democracy, Indiana University Maurer School of Law
Editors’ Note: This text departs slightly from the Blog’s usual House Style in its length and format (e.g. use of footnotes). This has been accommodated for this Symposium but submissions in general should continue to comply with the Submission Guidelines.
That Venezuela is currently in the midst of a serious institutional crisis is undeniable. That crisis is largely the product of constant abuses by the Maduro regime, which despite plummeting approval rates and a collapsing economy has sought to cling to power at any cost, using the constitutional structure as a façade through which to justify the concentration of all state authority in its own hands. This situation, which culminated in an unfairly tilted presidential election where Maduro was allegedly reelected amidst widespread denunciations of unconstitutionality and fraud, ultimately motivated Juan Guaidó to invoke Article 233 of the Constitution and assume the mandate of Interim President, thus directly challenging Maduro's own claim to power.
Given the prominence of Guaidó's invocation of Article 233 in the development of the current crisis, it is only natural that most of the discussion should focus on the viability of Guaido's own claim. Indeed, many commentators have oriented their arguments towards the patent unconstitutionality of the 2018 elections as the basis for resolving the current institutional dispute in favor of the National Assembly's president.[i]
The issue of the elections' compliance with the constitution, however, is only the tip of a much deeper constitutional iceberg. Although I am sympathetic to the predominant scholarly position accusing the regime of unconstitutional behavior — since I share its suspicion about Maduro's capture of the constitutional system for his own advantage — I believe the problem is in fact a more fundamental one that does not actually lend itself to constitutional resolution, because it refers precisely to the failure of the constitutional structure itself. In particular, it refers to the constitutionally disruptive nature of the National Constituent Assembly (ANC) of Articles 347-349, which played so significant a role in the development of the 2018 electoral contest.
Let us analyze the three interrelated levels on which the prevailing critique of Maduro's reelection is built, in order to show why this is the case. First, there is the issue of whether the 2018 elections themselves violated the constitutional procedures for electing a president. That such was the case is, by any possible measurement, unquestionable. Since numerous studies have already pointed out the several irregularities that took place,[ii] I will not delve into the issue. I will only point out that the ANC's self-attributed role as a supreme electoral authority, complete with its decision to impose ad-hoc requirements for the validation of parties seeking to field a candidate, made this departure from the Constitution's electoral provisions sufficiently evident.
Nevertheless, there is a second issue tied directly with the first one, and that complicates the question of unconstitutionality: Was the ANC in fact constitutionally empowered to convene and conduct elections in a manner that contravened the Constitution's electoral provisions? Here, the answer also appears to be affirmative, at least at an initial level: Article 347, which enshrines the ANC as the depositary of the people's “original constituent power,” simultaneously expands the ANC's competencies beyond those of constitution-making by entrusting it with the additional authority to “transform the state.” And, according to Article 349, no state institution shall impede the ANC's activities in the fulfillment of that authority. The attempts by a number of scholars to constrain the seemingly unlimited powers of the ANC by reducing its transformative competency to the single task of drafting a constitution[iii] not only reads out the language in Article 347 listing constitution-making as merely one task in a list of three; it also ignores the reference to the ANC as an original constituent power that, by definition, cannot be constitutionally limited. Indeed, even if the ANC is merely understood as an agent of the people's constituent power, rather than as the embodiment of that power, there can be no constitutional limitations on the competencies that the people may delegate to it (including playing an active role in the election of state authorities), or else the people's sovereign constituent authority would cease to be “original” to become constitutionally circumscribed.
This answer thus leads us to the third and most crucial question: Was the ANC itself actually convened in a manner that would justify its claim to represent the people's constituent power? Here, most critical scholars signal to the absence of a referendum and to the slanted electoral norms for the ANC (unilaterally designed by Maduro and his advisors) as proof of its unconstitutionality. In particular, the point is made that while Article 348 gives the President the “initiative” to convene the ANC, Article 347 locates in “the people of Venezuela” the actual “power” to convene it, and that therefore the requirement of a referendum (which should also include a question about the relevant electoral norms) is implicit in the Constitution.[iv] A basic assumption behind this position is the idea that a distinction between the “initiative” and the “power” to convene the ANC automatically implies that said “power,” insofar as it belongs to “the people,” can only be exercised through a referendum.[v] Yet neither the constitutional text nor, more importantly, any conceptually coherent understanding of the theory of constituent power directly supports that assumption.
To begin with, the Constitution itself lists among the “methods of participation and leadership (protagonismo) of the people in the exercise of their sovereignty” both the referendum and the election of public servants (Article 70), thereby putting those two mechanisms on an equal footing. Consequently, the argument could easily be made that the “initiative” in Article 348 refers to the competency of convening elections to a Constituent Assembly, and that the “power” in Article 347 simply refers to the people's participation in those elections.
At an even more fundamental level, however, and according to the Constitution's own logic of enshrining the ANC as a body directly authorized by an “original” constituent power, the Constitution cannot itself be deemed to lay out the conditions for the establishment of that body. Indeed, an original constituent power must remain original not just in terms of being free from constraints regarding its competencies, but also in terms of not depending for its coming into existence on its authorization by a prior constitutional norm. Otherwise, what would be original would be the Constitution itself. Therefore, the very possibility of criticizing the ANC as unconstitutional is paradoxical. In fact, the Constitution's endorsement of the constituent-power logic may be precisely the reason behind the text's otherwise surprising vagueness regarding the form of establishment of the ANC.
What this means, however, is that the Constitution has effectively removed itself from the chain of authorization of the same constituent body that it enshrines as legally unaccountable, and has consequently negated its own supremacy in favor of a supposedly “original” power that must remain outside of the legal-constitutional structure. Unfortunately, this self-negation leaves us on rather shaky democratic ground. For, although many have argued that from a democratic (even if not constitutional) standpoint any decision by "the people" would still require a referendum before it can be deemed as such,[vi] that kind of argument fetishizes the idea of the people as a somehow “natural” body with an objective will that exists independently of the mechanisms for its construction.
Here, we may want to look to the work of theorists like Chantal Mouffe[vii] or Jason Frank,[viii] who have emphasized that “the people” underlying the notion of popular sovereignty does not represent a continuous, empirical entity, but a discursive (political) construct that only comes into being at the moment of its expression. To speak of “the people” is to put forth a political claim that, in the absence of a prior authorizing norm, actually provides the retrospective lens through which to interpret a contingent political decision as the “popular will.” Since the people, as an abstract (and therefore constructed) agency, necessarily depends for the expression of its equally abstract (and equally constructed) will on some mediating mechanism, we cannot neatly separate the act of mediation from the will itself, and we must acknowledge the role of such mediation in giving concrete meaning to the very concept of “the people” as a political decision-maker.
A referendum—or any given method for the election of representatives—is just as artificial (constructed) a mediation as any other. As such, it depends for its materialization on the decisions of concrete agents with the power to give concrete definition to its many contingencies (like the questions to be asked, the possible responses, the subjects entitled to participate, the requisite majority/supermajority, the requisite quorum, etc.), which only then will become identified with “the will of the people.” When that referendum happens as the result of a prior authorizing norm (the constitution or some other law dependent on it for its authority), such power of definition is constrained by the framework of its authorization. But, what the theory of constituent power does is displace any such authorizing norm in favor of an “original” (extralegal) authority.
Thus, the Constitution, by incorporating the theory of constituent power into its own structure — that is, by acknowledging the possibility of an institution whose authority emanates from a power anterior to and independent from the Constitution itself — is not only introducing an exception to its own supremacy, but undermining the whole edifice of the rule of law through the negation of its own role as the self-contained source of democratic authorization. The “exception” ultimately operates as a constitutional Trojan horse, opening the door to claims to represent “the people's” constituent power that, precisely insofar as they derive their authority from an extraconstitutional source, can be asserted by any person or institution with enough de facto (rather than legal) power to back those claims. Venezuela's Constitution thus becomes, through Articles 347-349, a self-negating document.
As a consequence, any discussion about the method through which the ANC was convened must remain one of legitimacy rather than constitutionality. In particular, the discussion is a showcase of conflicting claims about how the constituent will of the people can be more legitimately manifested: do electoral norms that give a disproportionate voice to rural populations and to corporative “sectors” of the workforce more accurately represent the will of the “true” people than strictly proportional rules, even in the absence of a referendum? The answer will of course depend on the particular construction we may attach to the very concept of “the people”; for, surely, many among the decreasing number of Maduro supporters will believe that those who do not self-identify with “the Revolution” are not a genuine part of el Pueblo, and should therefore not enjoy a proportional say in the formation of the popular will. The problem with legitimacy-based claims, of course, is that, in the absence of an objective (legal) norm to serve as a common referent, they can only be premised on the subjective appreciation of the beholder. Therefore, their imposition over a group of persons (even if small) whose subjective appreciation differs from our own becomes a matter of persuasion rather than authorization; or, failing that, of our capacity to exert power over that group. In this manner, the conflict between supporters of the regime and of the opposition in the existing crisis is ultimately reduced to one of sheer power rather than legality, which is precisely what the idea of the rule of law is meant to prevent.
Having thus seen how the Constitution refuses to answer the question of the ANC's proper form of establishment, it should become evident why the current institutional crisis is not subject to constitutional resolution. For, if the validity or invalidity of the 2018 election — on which the claims of Maduro and Guaidó are respectively based — depends on its having been convened by a properly authorized body, the Constitution's self-removal from that body's chain of authorization renders the whole dispute (including the appropriateness of invoking Article 233) extraconstitutional.
Yet, since the battle is about the respective legitimacy of the conflicting claims, I believe it is still important that contributions like the ones to this Symposium continue to shed light on the abuses perpetrated by the Maduro regime, and on the viability of an alternative option to his rule. Indeed, even though the Constitution's self-negation has rendered the entire constitutional structure vulnerable to manipulation by a purely self-interested actor, there is little question that it was precisely Maduro's overreaches that turned a structural fissure into an full-blown crisis, whose consequences are now being felt so direly by the great majority of Venezuelans. Hopefully, then, the articles assembled here will contribute to turning the legitimacy crisis into one that may yet be resolved through persuasion, rather than through violence.
Rafael Macía Briedis is a PhD Fellow at the Center for Constitutional Democracy, Indiana University Maurer School of Law.
Suggested Citation: Rafael Macía Briedis, ‘A Constitutionally Enabled Crisis? The Problem of Venezuela's Self-Negating Constitution’ IACL-AIDC Blog (13 May 2019) https://blog-iacl-aidc.org/crisis-in-venezuela/2019/5/13/a-constitutionally-enabled-crisis-the-problem-of-venezuelas-self-negating-constitution
[i] See e.g. José Ignacio Hernández G., ¿Y qué dice el artículo 233 de la Constitución?, Prodavinci (Jan. 11, 2019), https://prodavinci.com/y-que-dice-el-articulo-233-de-la-constitucion/; Rolando Seijas-Bolinaga, The Venezuelan Presidential Crisis, Int’l J. Const. L. Blog, Feb. 21, 2019, available at http://www.iconnectblog.com/2019/02/the-venezuelan-presidential-crisis/.
[ii] See e.g. OEA, Elección Presidencial y de Consejos Legislativos de Venezuela 20 de Mayo de 2018 (May 24, 2018), available at http://www.oas.org/documents/spa/press/Informe-Elecciones-presidenciales-en-Venezuela-20-de-Mayo-de-2018-v1.pdf.
[iii] Juan Manuel Raffalli, La Ilegítima e Inconstitucional Constituyente Convocada por Maduro, in Allan R. Brewer-Carías & Carlos García Soto (eds.), Estudios Sobre la Asamblea Nacional Constituyente y su Inconstitucional Convocatoria en 2017 307, 309 (2017), available at http://allanbrewercarias.net/site/wp-content/uploads/2017/08/ESTUDIOS-SOBRE-LA-ASAMBLEA-NACIONAL-CONSTITUYENTE-2017-CON-PORTADA.pdf; Fernando Sanquírico Pittevil, Las Facultades (I)Limitadas de la Asamblea Nacional Constituyente de Acuerdo a la Constitución de la República, in Allan R. Brewer-Carías & Carlos García Soto (eds.), Estudios Sobre la Asamblea Nacional Constituyente y su Inconstitucional Convocatoria en 2017 414, 420 (2017).
[iv] See Carlos García Soto, La Asamblea Nacional Constituyente en Venezuela: Origen y Situación Actual de un Proceso Fraudulento, Cuadernos Manuel Giménez Abad Nº 14, 141, 148-49 (2017).
[v] See Venice Commission, Opinion No. 894/2017 on the Legal Issues Raised by Decree No. 2878 of 23 May 2017 of the President of the Republic on Calling Elections to a National Constituent Assembly (Jul. 21, 2017), available at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-PI(2017)004-e.
[vi] See e.g. Carlos Ayala Corao, La Asamblea Nacional Constituyente de Maduro-2017: Fraude Constitucional y Usurpación de la Soberanía Popular, in Allan R. Brewer-Carías & Carlos García Soto (eds.), Estudios Sobre la Asamblea Nacional Constituyente y su Inconstitucional Convocatoria en 2017 260, 267 (2017).
[vii] Chantal Mouffe, The Democratic Paradox (Verso, 2000).
[viii] Jason Frank, Constituent Moments: Enacting the People in Postrevolutionary America (Duke U. Press, 2010).