The Republic or the Reason Why We Should Defend a Crappy Constitution

Those who invoke the 1999 constitution for opposing Maduro's Constituyente don't understand the one true tenet of Chávez's legacy: the despicable habit of changing the rules of the game, instead of respecting them.

Many politicians in Venezuela are bending over backwards trying to justify themselves for “defending” the 1999 Constitution against the upcoming constituyente. They come up with phony emotional arguments about how Maduro is betraying Chavez’s greatest legacy. These arguments end up sounding insincere and disingenuous. Firstly, because the disgruntled chavistas they are trying to pander to know that opposition politicians do not really think that Chávez left much of a positive legacy; and secondly, because, from an objective point of view, the 1999 Constitution is a crappy document that was approved under a process that destroyed anything resembling any existing democratic institution in Venezuela in 1999.

I must confess that I’ve never been a fan of either long constitutions or constitutional changes. Venezuela has had 26 constitutions, depending on how you count, and it is the closest thing in the western hemisphere to a failed state nowadays (one of the most enduring democracies in the world doesn’t even have a constitution). There doesn’t seem to be much of a relationship between constitutional change and democracy and development. Constitutional reforms in Latin America are usually excuses from autocratic regimes to suppress independent institutions and abolish term limits. But, even without taking into consideration the uselessness of constitutional changes for increasing democracy or expanding human rights, the 1999 Constitution and constituyente are not legacies, they were one hell of a con job from chavismo to grab and hold onto power.

In 1999 Venezuela did not need a new constitution; nevertheless, Hugo Chávez offered a constituyente as a panacea to the collapse of the political and economic model of the previous forty years of democracy (which was not part of the serviceable 1961 Constitution). Once he won and was sworn in using the “moribunda” 1961 Constitution, he proceeded, with the anointment of the Corte Suprema de Justicia (CSJ) presided over by Cecilia Sosa, to call a referendum for the election of a Constitutional Assembly.

Has the inclusion of this nonsense in our Constitution done anything for human rights in Venezuela?

None of this was allowed by the 1961 Constitution which established its own mechanism for reform. Moreover, the Constitutional Assembly was elected under heavy malapportionment rules under which chavismo obtained 95% of the seats with 65% of the vote. More alarmingly, the Constitutional Assembly, again with the anointment of the guanábana-appointed CSJ, declared its powers were originary and “supraconstitutional” and proceeded to dissolve all existing branches of power and even appointed a temporary congress, dissolving the democratically elected one, and performed a razzia of judges and other public officials related to the old regime under the guise of a “judicial emergency.”

The effects of this unprecedented institutional devastation are still felt today Supreme Court justices chant government propaganda slogans during an official event, Tibisay Lucena uses an armband that symbolizes loyalty to Chávez and Socorro Hernández bizarrely talks of Maduro as our “father.” To put the cherry on top on this travesty, the constitution that was approved and published in the Official Gazette was inexplicably reprinted for “material errors” with text that is different from the one approved in the December 1999 referendum.

Maybe all of this would be easier to overlook if the product of the assembly had been any good, but the 1999 constitution is just bad. For starters, it’s clumsily and awkwardly written (unlike the 1961 one, which was revised by the renowned philologist Ángel Rosenblat). It’s presidentialist on steroids (under the 1961 Constitution, enabling laws could only be used to enact economic laws, a limitation removed in 1999), it allowed immediate reelection (under the 1961 Constitution Chávez would have only been able to govern until 2003!), it’s designed to produce malapportionment in the National Assembly by assigning the same number of deputies to each state and the Capital District, regardless of their population.

Even what’s considered its best aspect the numerous rights and guarantees it enshrines is a flaw in my view. I mean, environmental education is great, but does it need to be a constitutional right? Same for the issuing, reception and circulation of cultural information? Truthful information? The right of youths to be active subjects of our process of development? Has the inclusion of this nonsense in our Constitution done anything for human rights in Venezuela?

It’s about holding chavismo accountable to the tailor-made constitution they wrote. It’s about living under a government of laws, not of men.

It’s important to remember that Chávez himself repeatedly violated the 1999 Constitution (which he in fact he did not write or devise because he wasn’t precisely Andrés Bello) and even tried to reform it illegally in 2007 and it was only saved by the student movement that arose that year.

Right now, you are probably thinking that under this argument there is no point in defending the 1999 Constitution. But the protests are not about defending the bicha for its inexistent virtues. It’s about defending our right to live under the rule of law and not under a narco state. It’s about holding chavismo accountable to the tailor-made constitution they wrote. It’s about living under a government of laws, not of men. We are defending much more than a just very imperfect document. We defend the basic idea of Venezuela as a Republic.

The 2017 constituyente is not a betrayal of Chávez´s legacy. It’s the natural continuation of the assault on liberal democracy in Venezuela that Hugo Chávez started in 1999.

They are even using the same tactics (electoral malapportionment and the dissolution of existing independent branches of power), except that now, without Chávez’s popularity, the intention to destroy what’s left of democracy in the country is more patently desperate.

Opposing the 2017 constituyente is not defending Chavez’s legacy: it’s our last attempt to bury it.