The Constitutional Clash We Want

MUD needs to take ownership of the Constitutional Clash, quickly leveraging its National Assembly majority into a compelling case for regime change. Here's how.

Quico needs to bajarle dos. Leaping from a couple of phone call between Aristóbulo Istúriz and Henry Ramos Allup to saying that “a stable cohabitation is just around the corner” must win the Diamond Orquidea in a slippery slope contest.

To this day, almost everything the government’s done since December 6th suggests that the dreaded choque de poderes is on its way. The question now is what kind of constitutional clash do we want?

And that kind of constitutional clash is the one that paves the way for meaningful policy reform, which likely depends on regime transition. To get it, we need to keep the initiative and lay the groundwork for the Recall Referendum (or one of the other constitutional avenues to push for a transition) as the clear endgame.

I think it’s worth being explicit about my premises here, though I think my argument holds even if you think they’re wrong.

  1. Chavismo, having made the judiciary a subsidiary power to Miraflores, will unconstitutionally block any laws approved by the National Assembly that limit its hold on power to deal with the crisis.
  2. For that reason, no meaningful economic or political reform is really possible while Chavismo holds the presidency.
  3. That means that dealing with the economic crisis and enforcing our civil rights are not goals in conflict with one another: to get either, to get both, you need the presidency.

If you agree with that, then focusing on any given policy area right now is besides the point. We need to coalesce around activating the remaining constitutional avenues to remove Chavismo from the presidency as soon as possible. Talk with people from either side of the oppo’s talanquera and you end up reaching the same conclusion. You get to that conclusion quicker with people on one side than the other, sure, but you get there just the same.

But nuance matters. Each of the constitutional avenues available to deal with the crisis would – and should – lead to elections. Consequently, perceptions are relevant: we may be convinced that dealing with Venezuela’s precarious economic situation will have to wait until we’ve gone through regime transition, but the majority of Venezuelans (especially the two million Chavista voters who abstained on 6D) may not. So we need to activate a constitutional transition in terms that help us build the majority we’ll need in the election this is all leading up to.

I bet this is what’s been in the back of Maduro’s mind when displaying the proactive excesses that we’ve witnessed ever after December 6th. President Maduro wants a constitutional clash that leaves our fingerprints on his economic crisis. How? Well, they shoot a bunch of noise bombs at the Opposition to prevent it from taking control of the agenda, while also presenting “initiatives” that the opposition will end up having to reject.

Maduro’s “Economic Emergency Decree” was presented even before the AN was sworn in. His “ojalá la Asamblea me lo apruebe” suggests that they are aiming for the opposition to become contrarian to their “solutions”, while preventing the opposition from proposing any. Soon, it will be about rejecting additional credits for the vastly under budgeted Misiones. The government wants to convey that the opposition has no proposals to deal with the crisis, and that it’s blocking the way forward for the country. Están en campaña.

In this context, the nuance presented above is an argument for urgency in the opposition, not for pause. There is no time to lose preparing the perfect laws, or discussing their right order in the agenda, or pondering whether legislative acts are considered null or not by the judiciary.

None of that really matters. The opposition should not be distracted. It should be legislatively decisive, prompting Chavismo’s judiciary to block as many simple, yet transcendent power constraining laws in as little time as possible. There’s no shortage of good options: returning the control of BCV’s board to the legislative branch; granting amnesty to political prisoners; revoking the media law; widening the size of the constitutional chamber; approving the Misiones law… you name it.

Right now, MUD is trying to do too much. When everything is a priority, nothing is. Instead of fourteen laws, MUD should fast-track a handful of tiros al piso: a short, cohesive bundle of simple yet powerful legal reforms that limit the government’s power drastically. These should be discussed, approved and sent to the Executive by mid-February. Say, five reforms. Six is too many. That should allow parliament to publish them in the Gaceta Legislativa by late-March.

This way, the judiciary will be forced to make a choice early on: either let these reforms pass, or rule them unconstitutional. And such an unconstitutional and outrageous blockade of consensus initiatives to solve Venezuela’s economic and political woes would timely pave the narrative for pushing a Recall Referendum or any of the other constitutional avenues for a political transition.

That’s the kind of constitutional clash that the opposition should be trying to provoke if it wants its solutions to the economic and political crises to move ahead. Now, I could have gotten it wrong all along: I might have been too nihilist, and after pushing all these reforms, the TSJ complies and we find ourselves with the non-monolithic dynamics that some highlighted from the very beginning.

If that happens, we would wake up to a different Venezuela: we would have overnight institutional independence, freed political prisoners, plural media coverage on political events, and the capacity to deal with the economic crisis collectively and as best as we can given the hand we are dealt with. If that happens, well, that would make me the happiest wrong person in the world. But at the same time, I would argue that such judicial defection was most likely contingent on our aggressively prolific legislative strategy.

Or put differently, having the legislature quickly blast law after law to the TSJ for “judicial interpretation” is a strictly dominant strategy for the opposition: regardless of whether institutional defection is possible or not, such attitude would always yield the best results by either legitimizing the call for a constitutional political transition, or by lending a hand for justices to jump the talanquera.

So, after all the noise of the last couple of days, the MUD had better get its parliamentary act together; quickly present a few simple but powerful legislative reforms discussed and approved, and put the ball in the judiciary’s court.

As of today, we can’t know whether defection from a significant number of Chavista judges is possible or not. But if the National Assembly tests them by sending them a bunch of laws in quick succession, we might just find out while still on time to call for a recall referendum and avoid “tener que calarnos a Aristóbulo hasta el 2019”.

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I work in development economics for countries with governments that want to deal with (some of) their issues. I think I'm a fiscally-responsible progressive. I've thought a bit about the Political Economy of oil in Venezuela, and I worry about the politics of the things that need to happen. I think Rómulo Betancourt, Adolfo Suárez and George Washington were exemplary politicians. What I miss the most about Venezuela: My family, my friends, my weather, my food, my band, and teaching in my university.