The (possibly) inevitable Constitutional Assembly

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Last September’s Parliamentary elections showed that, even with the cards stacked against it, Venezuela’s opposition could win the popular vote. Knowing this will serve us well in 2012, when the next Presidential election will take place.

So, in the spirit of the coming weekend, let’s get ourselves carried away and ponder the optimistic scenario. Suppose an opposition candidate were to win in 2012. Then what?

The decay in Venezuela’s institutional fabric is wide and deep. The Supreme Tribunal is composed of all sorts of shady characters, and in a few days, we will see yet another high-profile chavista hoodlum joining the club.

But the problem runs deeper. It has less to do with the characters, and a lot to do with our country’s basic institutional framework. There is a case to be made that everything from the length of terms of office of the President, Governors, Mayors and congressmen, to the way local governments are financed, should be re-examined.

The struggles between the federal, local, and the so-called “communal” governments has never been sharper, and these would only be heightened in an opposition government. Can we honestly say that decentralization is so strongly entrenched in our constitutional fabric, so as to withstand an attack from an overzealous central government?

Whether it’s the issue of maximum prison penalties in a country besieged by violence, the protection of freedom of the press and judicial independence, limits on executive power, the proper role of government in economic life, the organization of our oil industry, or the protection of basic property rights, the conclusion is the same: the 1999 Constitution has proven powerless in living up to its proclamations, and making its principles a reality.

There is, however, a strong argument to be made against a Constitutional Assembly. Many reasonable people will say that the problem is not with the Constitution but with the people implementing it. They will claim that the Constitution is fine, but that it has simply been violated.

That may all well be true. But without the power of a Constitutional Assembly, removing the same people responsible for its violation will become close to impossible. And let’s not forget that a Constitutional Assembly doesn’t necessarily have to start from scratch, as many of the provisions in the 99 charter could, and probably would, stay in place.

Furthermore, even if you accept the 99 Constitution – and its subsequent “reform – as close to being perfect, we have to ask ourselves: do we really believe Presidents should hold office for six years? Do we honestly believe it’s convenient to allow Presidents to be re-elected indefinitely? And do we really think that the current administrative division in the Caracas Metropolitan Area is conducive to effective governance?

It’s premature to be making a serious case for a Constitutional Assembly. But it may be the right time to get used to the idea.

1 COMMENT

  1. El pueblo de Venezuela, fiel a su tradición republicana, a su lucha por la independencia, la paz, y la libertad, desconocerá cualquier régimen, legislación o autoridad que contraríe los valores, principios y garantías democráticos o menoscabe los derechos humanos”

    http://www.tsj.gov.ve/informacion/notasdeprensa/notasdeprensa.asp?codigo=149

    here is the whole thing: http://www.mpd.gob.ve/constitucion/tituviiiyix.htm

    Ordinary venezuelans need to go out on a limb of some sort and art. 350 seems to be it.

    quite frankly, we are not expecting a great upheaval in congress with the arrival of the the members from the opo, more like staking a claim rather than expecting real solutions to all our ills, so it seems more appropriate to throw a bone to the citizens to see if they can really defy the government with some kind of constitutional backing

  2. Although as a Honduran I am wary of constitutional assemblies (call it Political Traumatic Stress Syndrome) I think you guys will need a constitutional assembly to get rid of the mess the Bolivarians have created. Think of it as a De-Bolivarianization of Venezuelan society. The current constitutional framework was basically created and updated to serve the needs of one man, and once that man is out of office the whole constitutional system will seem a little out of place. The 1999 Venezuelan constitution kind of reminds me of Latin American roads: It wasn’t very good when it was new and once a hole opens up, it gets patched up badly. Another patch gets added and then another and the end result is an unrecognizable mess which creates a bumpy ride for all those involved. Presidents don’t need six year terms and if they do get them, they don’t need an unlimited number of six year terms.

  3. Well, to begin with, we need to take the word “Bolivariano/a” out of everything, specially the country’s name, so yeah, we need a Constitutional Assembly.

    The problem, of course, is that it would be trivial for Chavez to label it as “an attempt by the oligarchy to regain the evil privileges they lost with the Bolivarian constitution.” So it would be very hard to convince the ni-nis unless you sell it as the one and only way to wipe out all of the corruption in the country in one go without having to put half of Venezuela in jail.

  4. I believe that if a Constitutional Assembly is required it shouldn’t happen in the first term. It should be delayed 5 – 10 years. The immediate work is to patch up the basic institutions and make them work as well as the economic system and the infrastructure of the country. Political stability would be needed before a Constitutional Assembly is called unless the same unfair methods patented by chavismo want to be used against them which would never cease the turmoil. Trying to wipe clean the country from chavismo is undesirable and extremely dangerous.

    Some necessary changes can be meanwhile implemented through the use of specific and targeted referenda.

  5. I think it will happen, once the Chavismo period is over, people will flock towards the other side, we Venezuelans are mostly “fair-weather-fans”, o mejor dicho, apostamos a ganador, hence once the nightmare is over, things are going to change fast.

    BTW, Lol at the Mayka pic, I used to love the Tutti Frutti ones, they sucked, but smelled good! jejeje

  6. One thing we have to ask ourselves is what is an opposition president going to do with an AN that has a majority of Chavistas.

    Won’t he be powerless to male new laws, change the Supreme Court, the CNE & all the other hundreds of corrections this country needs.

    To me it all looks so depressing for a future well past 2012

    • I don’t think the goal should be “change the Supreme Court” just because they don’t agree with them. The Supreme Court needs to be changed because they were named illegitimately, not following the Constitution, and using a bogus TSJ law that was approved in a blatant power grab by chavistas.

      What we need is a Supreme Tribunal that won’t be making things up and will follow the rule of law.

    • What do you mean by “an AN that has a majority of chavistas”? 😉

      “Chavista politician” usually means “puntofijista reencaucha’o”. Most of those buggers will jump the talanquera faster than you can say 11 de abril.

  7. You have posted the right solution, already.

    Not a Constitutional Assembly. A Constitutional Erasing Assembly.

    ” the 1999 Constitution has proven powerless in living up to its proclamations, and making its principles a reality.”

    Mostly because it’s chock full of proclamations that are pure bull-pie (in the sky) or nebulous at the best of times. Mostly because it sounds infantile, like the kinds of rights and guarantees that Elbonians demanded of King Dogbert in the Dilbert cartoon. However, you have to cut Adams some slack: “We demand the right to dress potatoes like our favorite celebrities!…The right to collect string…The right to make armpit noises.” are easier to grant and more realistic than a vacuous promotion of arts and crafts, like traditional fishing methods, or the right to “impartial, truthful and timely” information and news, which can only be described as candy for dictators who stomp down real rights while keeping the PSFs content that they are protecting “rights”.

    • To elaborate on the fantasy aspect of certain rights. You could legislate the Right to find a pot of gold at the end of the rainbow. The Right to give birth to babies for men (Monty Python’s the life of Brian, a pointed satire of Liberation Movements and the like if ever there was one). The Right to have a night of passion with every person you find desirable. The Right to work with all the perks and protections and bonuses plus one, irrespective of whether they are hiring.

      And then realize you cannot get to end of rainbow, cannot have babies if you are a man, cannot get prospective partners even with a law book at your side, are unemployed on your terms, get mad and go protest your inability to reach impossibles. No advance, really, only for the con men who got to power on such platforms. Well, maybe you can get the State to institutionalize sanctioned rape and sex slavery in the last case. Or bankrupt the State and industry with too many unproductive jobs.

      Of course, if you let fantasy out of the law books…

      Somebody might actually find a way to make quick sex changes, or otherwise house a fetus inside a man. Or maybe increase reasonably your chances of hitting on some persons you really find desirable. Or find creative ways to employ. Or create artificial or virtual rainbows which’s end you can reach, complete with pot of gold.

      Which they will not as long as they are under the shadow of legislation that can get them into court and jail if they don’t accomodate capricious demands in the form of “rights” they cannot grant. Because nobody wants to be made to look like opressors, particularly if they don’t opress anyone.

  8. Canuck got it right: the next Asamblea Nacional is supposed to stay until 2015. It would sabotage any and all public policies of the new government. Unless the new president manages to “convince” ($$$$) enough deputies to switch sides, the only legal way out of the chavista majority is a Constituent Assembly, never mind the contents of the new Constitution.

  9. Now, for that you probably will need a referendum. I have said before: we need to change the rules of a referendum. It cannot be the military thugs use the referendum to intimidate. We need to demand in front of whatever instance (not OAS) abroad that they pressure the government to allow international observers to control the validity of signatures. If we do that, we could really have real referendums, not a 2004.

  10. I’m not necessarily a fan of that constitution but isn’t a fact that if the present government actually followed it to the letter of the law Venezuela would be less autocratic than it presently is ?

    • If it followed any law at all, it not be autocratic at all.

      That’s the difference between developed vs. undeveloped countries. The main one. Having had institutions and laws that work predictably for longer in their history.

      That’s what made Japan or Korea. They were no paragons of democracy for most of their history. But when the time came, they industrialized and developed just right. And even came to democracy and freedom, when their institutions began to embrace it.

      And I define myself as mostly libertarian. BUT! The only freedom that can ever exist is freedom from arbitrary, undeserved violence. Having to depend and wait on the whims of somebody (who will do violence to you if you don’t wait until they decide), or fearing the arbitrary violence of someone else, is opression by definition.

  11. Dear Juan:
    Hooray at last! Some attention to the future! Bravo! I’d like to add my bit on term limits for el Presidente. We have to guard against the promise-all-and-then-grab-power caudillo with term limits, but not at the expense of a leader who serves with honor and statesmanship. One way to do that is with an initial one-or-two-year majority-vote term with unlimited following terms requiring a 65% (you pick the number) majority evrry two years to continue.

    There are mechanical problems with this, and it needs work, but the principle here is that the people should be allowed to re-elect a very good leader every two years, but he should not be given four or six years to grab power, stack the deck, and create fake majorities. A provision that constitutional changes can only become effective two years after adoption would also make sure El Presidente has time to be dumped for power-grabbing.

    Warmly, Deedle

    Warmly,

    Deedle

  12. Parliamentarian democracy:

    I wonder if Venezuela could not benefit from a parliamentary democracy as the one in Germany (with 5% threshold to guarantee non-fragmentation, among other things)

    America has an issue with parliamentary democracy. It should try it. I am sure there are lots who would oppose it, as it is very bad for certain interests.

  13. Another point is that nobody should win the presidency or the mayor’s office with less then 50% of the vote.

    Runoff elections would resolve the many discrepancies of vote splitting that is going on all over the country.

    Our mayor won with just 34% of the due to a ringer that popped up financed by the chavistas who claimed to be oppo & got around 18% of the vote. When the oppo votes were added together we won easily.

  14. Dear Kepler:

    “It cannot be the military thugs use the referendum to intimidate.”

    Although I agree with this statement, I’d like to caution you not to embrace the intellectual fashion that the military is largely made up of thugs. Yes, some are thugs, but many of them are among the best educated, most patriotic, loyal, and demographically balanced of all power elites in many a nation, and selected mostly on merit. As such, they are your most likely friends for seeking a stable future based on fair and just rules. They are trained to follow orders, but most of them prefer honest, legal orders. DO NOT FORGET that when Chavez goes, legally or not, the man answering the phone at Miraflores will probably be military, and he will support your constitution if A) it can stabilize Venezuela, B) he knows about it, and C) we have not alieneated him from the intellectual community as a “thug”.

    You haven’t said that, but that’s how it can sound to the middle ear.

    Wishing you all the very best, and three more cheers,

    Deedle

    • Needle,

      I am talking about Venezuelan military.
      The average Venezuelan has a lower education level than the average Bolivian, Colombian, Brazilian, Argentinian, Chilean, Uruguayan, Ecuadorean. Still, the military are among the least educated among those we could call “professionals” and they see themselves as some special caste, they promote this idea and they have always promoted chauvinism in Latin America and they have always profitted from stupid divisions among Latin Americans. That was like that yesterday and that was like that in 1990.
      They have taken Latin America hostage since before the Independence. We should start talking about how they can have a role as they have in XXI century Western Europe. They should not be seen as some special caste.

      I don’t consider myself an intellectual. I find the word pretty pointless anyway. This has nothing to do with intellectuallity. Yes, they are to be put on our side, but we also need to start talking about a lot of issues we are afraid
      to talk in the Americas and one of them is the position the military are having in our affairs.

  15. A constituent assembly is inherently a revolutionary process, to be avoided if at all possible. Venezuela does not need a series of referenda, with the accompanying pressures and excitements, nor does it need more examples of Presidential decrees leading to vastly important decisions.

    A return to normality requires, first, a period of calm and good governance. I am no expert, but I do not believe the Constitution impedes this in any way. If I were an oppo leader, I would offer an end to class war, ie. national reconciliation, and a promise to look forward, not backwards. I would promise real prosperity, and then try to actually achieve it for all through business friendly practices and a promise to never forget the poor, since that too is part of national reconciliation.

    An electoral defeat of President Chavez will detach his party from the public teat; it will shrivel in short order. But the best way to insure that it does so, and that no successor is formed, is to detach the needy poor from that project by offering them real benefits in a new Venezuela.

    • Not so sure, Jeffrey. 1989’s riots were not spontaneous at all. They were provoked by a group of extremists who were planning things. Now there are many more.
      These left extremists are experts in that kind of thing.
      We need something more to avoid civil war Chavista honchos would crave for as soon as they lose power.

    • Kepler:

      Thank you for your very sensible reply. There’s room for agreement.

      Jeffry says:

      “But the best way to insure that it does so, and that no successor is formed, is to detach the needy poor from that project by offering them real benefits in a new Venezuela.”

      One can hardly disagree with this, but actually doing it has beset humanity since the dawn of time. The essential difficulty is that the real poor have literally no voice. They rarely vote, being too busy looking for food, and unable to read a ballot. They are no one’s genuine political constituents. In much of the US, our runaway justice system throws anyone in jail – with no votingrights – who has no money for a GOOD lawyer, most of whom say they are devoted to protecting the poor and innocent. The REAL poor are no one’s actual political constituents. In the ’70’s, bad-boy Nixon passed a negative income tax (called the “earned- income credit”) for the real working poor, who often know little about it, and this Congress is looking to repeal it. Again, the real, honest poor are no one’s constitutients.

      One consititutional task before humanity is to invent provisions that somehow place this situation in someone’s political interest – at least unconditionally protects their voting rights, but somehow assures that they get justice from any so-called “justice system”. The US has this nominally, but in practice the Justice System serves only itself and the rich (and yes, most of us are rich). Perhaps in most countries, “the justice system” benefits directly from the very injustices it is supposed to fight, and that has to be addressed.

      Chavez, whmpom we detest, has touched this inequity, and it’s good that we’re more aware of it.

      I think it can be done, but we have to be genuinely intereted in doing it.

      Sorry, I have no time now, I have work to do….

      (point made intentionally)

      😉

      Deedle

  16. You could ask the Supreme Court to invalidate the new Constitution. Simpler, they will do it once the clown is gone. BTW, I don’t think he will hand over power if he loses. He will leave power eventually, but will never hand over.

  17. What does the Constitution, or law in general say about the extreme Gerrymandering that Thugo has done, where there are some oppo districts with over twice the registered voters of some Chavista districts? Is this a case of Thugo and his minions following the law, exploiting the law, or simply ignoring the law [i.e., violating the law]?

  18. You don’t need a Constitutional Assembly to do those changes. Chávez show us that we can use the enmienda or the reforma, easier and quicker..unless you want to dissolve all the insitutions right away just as Chavez did in 1999.

  19. The constitution should have many functions. Among those is to resist corruption and abuse. A close corollary to this is to do the work of all the people, so that the disenfranchised are not susceptible the next Hugo Chavez. The oil, and the easy money it produces, attracts corruption. There has to be a way to keep it under strict control to do help “build” a better future rather than to simply make people comfortable and lazy. Personal property and protection for those who take risks and create assets is a must, as well as education and other tools for those who desire to improve their lives. Health for all, safety nets for the stricken, support for families, and whatever it takes to create a large, affluent, educated, and well-informed middle-class will all contribute to what it is all about…. lives that are happy and fulfilled rather than wasted.

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