Young and Defenseless

by Daniel Lansberg-Rodríguez

“As Constituições são como as mulheres, elas são mais férteis, enquanto elas são mais violadas.”

­Getulio Vargas, Brazilian Dictator.

First things first: that the government of Venezuela should seek to circumvent inconvenient constitutional requirements is to be expected. Tension between a nation’s constitution and its executive are a constant worldwide. After all, a  constitution’s value lies largely in its ability to restrain an executive.

What IS troubling about the situation in Venezuela is not a matter of intent but of opportunity: the ease with the government can ride roughshod over the national constitution.

The ideal way for a government to violate a constitution has always been through sleight of hand. If it can do so with impunity, “interpreting” the text in a novel way is often the best option as it preserve a veneer of constitutionality. With maximum “cover” and minimal costs, a government gets its cake and eats it too (as both the chivo and the mecate look on.)

Legal scholars know that a constitution can, at best, raise the costs associated with certain government actions, either compounding the perceived illegitimacy of those actions within the domestic and international arena, or else raising troubling specters of actual sanctions on those involved.

For this to be effective you need a culture of restraint. Such a culture prevents certain actions from even being considered.

Developing this culture takes time. For any constitution to resist government attempts at “creative interpretation” such as the Maduro Doctrine, it must have achieved a level of societal buy-in, procedural understanding, and relevance that the Bolivarian Republic’s constitution does not have.

For one, it’s too new. Venezuela has always had a kind of attention deficit disorder when it comes to constitutions. Having gone through 26 of them, (while amending existing constitutions only twice), Venezuela ranks second worldwide in terms of hyper-constitutionalism (The Dominican Republic wins out but that’s only because Trujillo personally rewrote his like ten times.)

When Venezuelans let Chavismo rewrite the Constitution completely in 1999, they gave up all the constitutional precedents, traditions and understanding that had developed under the 30+ years of Punto Fijo. This new constitution has never gone through a presidential transition of any sort, let alone one as complicated as this one.

It’s also one of the longest and wordiest constitutions in the world, with a great many ill-defined terms and ambiguities. Absent citable precedents in any direction, the TSJ can essentially define things as if for the first time. In a country with no judicial independence, the only opposition riposte likely to be an appeal to common sense. And who’s going to make it?

Well, Quico gave it a valiant try, but as the Venezuelan electorate has shown on many occasions, rational arguments by academics or nongovernmental lawyers (much as those of professional economists, human rights organizations, bloggers, etc.) aren’t worth much. The sources themselves are often dismissed as suspect so that the arguments become irrelevant. It’s just the oligarchs whining again, they will say.

In constitutional terms, Venezuela’s in the middle of a perfect storm: entrenched regime, low judicial independence, long constitution, new constitution. I suspect that this combination will render pretty much any action the government undertakes in violation of the constitution a “formality.”

Speaking both as a constitutional legal scholar and as a Venezuelan, it very much pains me to say this, but I suspect the specifics of constitutional design will prove largely irrelevant to whatever happens in Venezuela over coming weeks.

Should the government attempt anything too shameless, such as disregarding the requirement for new elections, it would raise enough eyebrows abroad to create real push-back domestically, but out of indignation mostly, not a deep-seeded respect for constitutional process. For the myriad smaller constitutional violations that are more difficult to track, I doubt anyone–save a very few–will pay them much mind.

Every constitution is—at its heart—an attempt by the present to bind the future. For this to work, the constitution has to become engrained in the national psyche or else have institutions that are strong and independent enough to push back on Constitutional grounds. Failing that, a constitution is not even a paper tiger. It’s just paper.

Venezuela has never developed a culture of constitutional restraint able to protect national constitution from those who would seek to “Vargas” her. But the future starts today.

The first step will be for us to refuse to accept a society where such violations are considered routine. Yes, in the end, Chavismo will probably do whatever it wants in the short-term –repeatedly so– but we must continue to thrash and scream and protest each new violation as energetically as if it were the first. We must continue to be visibly shocked and vocally outraged always. We must shout it from the rooftops, until we feel like worn-out records. Then we must dust ourselves off, have a good cry and a shot of Santa Teresa and get back to protesting once more.

Whatever happens, we cannot allow this become the new normal.