The Long Journey of the 1999 Constitution
On December 15th it will be twenty years since the referendum that passed the Carta Magna designed by the chavismo to take over the State. But today, that fundamental law has many meanings.
Image: Sofia Jaimes Barreto
Hugo Chávez won the 1998 elections by selling the idea of a rebooted Republic to a country that craved changes and a political revolution. Once elected, he took advantage of confusing decisions by the Supreme Court, the passive nature of the elections authority (CNE), and the shallow and irresponsible role of Venezuela’s public opinion, to build a new legal framework for the country. And how would he do this? Through a Constituent National Assembly (ANC) that would write a new Constitution, a mechanism that didn’t exist then.
Chávez rallied for a referendum that would let the people decide on whether they wanted a constituent assembly or not. With 4,137,509 voters participating and 62% abstention, the “yes” vote won by a landslide with 92.4% against 7.6% of those who voted “no.” That victory led to the next one, on December 15th, when the people voted to approve the Constitution written by the constituent assembly —while an unprecedented natural disaster destroyed Vargas state.
Chávez designed a genius political strategy to take over all the spaces in the Venezuelan State. And he did so in the time period between February of 1999 and July 2000.
The ANC was not only useful for Chávez to replace the democratic Constitution, but it helped him broaden the powers given to the president, and allowed him to call a general election for all public office positions —many of which weren’t controlled at the time by Chávez or the Movimiento Quinta República.
Few people saw this with the suspicion it merited, but today it’s painfully clear: Chávez designed a genius political strategy to take over all the spaces in the Venezuelan State. And he did so in the time period between February of 1999 and July 2000.
Because of the system put in place to designate constituents in the ANC at the time, the candidates from the Polo Patriótico got 125 seats (of 131) with 65% of the votes. The other candidates, while getting to 22.1%, only got 6 seats.
One of those seats was occupied by Professor Allan Brewer-Carías, the most knowledgeable person in the country on the subject of the 1961 Constitution and constitutional history. He was extremely vocal in denouncing and criticizing the abuse that they intended to introduce in the new Constitution. If this new Carta Magna didn’t bring about more backward thinking into the Republic, it’s in large part thanks to Allan Brewer’s work.
The country’s history after this date is directly affected by the events that happened in 1999.
Doing it in a rush
The constituent assembly didn’t want to start off from a draft for the new Constitution, instead they used a document that had been presented by President Hugo Chávez on August 5th which included his fundamental constitutional ideas (“Ideas fundamentals para la Constitución Bolivariana de la V República”) as a basis for their work.
The drafting process for the Constitution was improvised and rushed. It can be divided into four stages between August 7th and December 15th of 1999. The first one: the reshaping of public authorities. Then came the work done by the twenty Permanent Commissions and the Constitutional Commission. In third place; debating the project for the Constitution that came from the different Commissions. The last stage was spreading the text across the country.
The Permanent Commissions had little less than a month to complete their jobs, and the Constitutional Commission had three weeks to integrate them into a project that presented their first debate on October 19th in nineteen sessions, and the second debate in just three sessions. Everything had to be ready on December 15th for the referendum.
The 1999 Constitution was published for the first time on Official Gazette N°36,860 on December 30th 1999, but a new publication was ordered almost three months later, on March 24th 2000, along with an interpretative memorandum that wasn’t included in the first edition.
New Constitution, different meaning
I’ll never forget that in the year 2000 my Constitutional Law professor told me: “Those who are opposing the 1999 Constitution, will call upon it tomorrow to defend themselves from the Government’s own actions.” At the time it seemed like a cryptic statement, but it became very clear in time. Invoking principles, values, and rights that are embodied in the 1999 Constitution has been one of the main weapons in this long two-decade struggle.
It was difficult to foresee all this during the slow, patient, efficient, and demolishing process of destruction of democratic institutions that had been built between 1958 and 1998, that were used by them. The electoral rules were written in such a way that the results wouldn’t really reflect the will of the voters. The National Assembly was used to legislate against the rights of the citizens. The rulings by the Supreme Tribunal (ex-Supreme Court) were in great measure designed to build the institutional scaffolding that protected the decisions made by the Executive. Let’s not forget that in 2007 Hugo Chávez promoted a constitutional reform to broaden even further the presidential powers, and install indefinite re-election. The people rejected said reform in a referendum, but an amendment was made the following year that allowed for the indefinite re-election of the president, governors, mayors, and representatives, approved by referendum.
The bibliography that has analyzed in detail this whole institutional destruction process is, fortunately, overwhelming. Venezuelans can rest assured that there’s an entire chronicle describing how the State was torn into pieces, which has been told, analyzed, and criticized by political scientists, sociologists, and constitutional experts.
Of course, there’s the monumental work of Brewer-Carías himself, which a large portion of it can be read on his web site. Asdrúbal Aguiar analyzed the process in his case study called Historia Inconstitucional de Venezuela 1999-2012. The National Academies prepared an extensive report called Propuestas a la Nación. In the Universidad Católica Andrés Bello several collective books have been published, such as Venezuela 2015. Economía, Política y Sociedad (compiled by Ronald Balza) and La consolidación de una transición democrática, available for free download.
Because of paradoxes of our recent history, which we can describe another day, as we commemorate the twentieth anniversary of the constituent assembly that gave birth to the 1999 Constitution, in the premises of the parliament, a new organism that goes by the same name (ANC) has been installed. Every once in a while it takes decisions based on the political circumstances that take place at any given moment, and it was called and elected outside of the 1999 Constitution.
The drafting process for the Constitution was improvised and rushed. It can be divided into four stages between August 7th and December 15th of 1999.
But citizens still invoke the 1999 Constitution, flawed as it may be. It’s the document that gives us the best way to demand our rights. Even if it is an extremely presidentialist constitution, army oriented, with a very broad concept of State intervention in the economy, that never solved the never ending problem of an equal Federation design; it’s a Carta Magna that does acknowledge those civil, political, economic, cultural, and environmental rights that are defended nowadays in modern constitutions, and in a very broad and important way. Those rights whose exercise and protection has been denied time and time again.
The constitutional system in a country is a set of principles and rules that carry constitutional weight, and as they organize the State, they also recognize the rights of the people. That constitutional system determines if the State is one of central or decentralized nature, if it’s monarchic or republican, or if its economic order is tilted more to the left or the right. Venezuela has a constitutional tradition that began in 1811 and still has important issues to resolve.
What limits should the president have? How far should the competence of states and municipalities go? What role should the State have in the constitutional system? These are unanswered questions, as well as many others, which are fundamental in designing a State that serves its citizens.
They all require an objective introspection, even in these difficult circumstances Venezuelans live today. To rethink our constitutional system is, without a doubt, one of the most important challenges on which we can work today. And that also includes revising the Constitution that has been in effect for twenty years of traumatic transformations.
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