What’s wrong with Venezuela’s Constituent Assembly?

William Partlett

Melbourne Law School

Venezuela is currently undergoing a political and constitutional crisis.

The recent election of a new Constituent Assembly has drawn international condemnation and accusations of fraud and vote rigging, and is seen by many as an attempt by President Nicolas Maduro to strengthen his grip on power.

The increasingly fractured country is suffering from recession, inflation and shortages of food and medicine, with many calling for a change of government. The Opposition, which controls the existing legislature, boycotted the recent Constituent Assembly elections, calling them ‘unconstitutional’. Human Rights Watch has called it a “sham” and the United States has placed sanctions on Venezuela.

President Maduro has countered this by arguing that the elected Constituent Assembly is a democratic way to bring peace to the country. This raises a key question: how can allowing the people to have their say be undemocratic?

Many media reports have focused on the failure to hold a referendum on the Constituent Assembly and the continued protests. Others have focused on ballot rigging and the decision by the opposition to boycott the election.

But there is another critical—but largely neglected—reason why this National Constituent Assembly is problematic. The answer lies in the details of the electoral rules for the Assembly. President Maduro used his control over the electoral laws for this Constituent Assembly to significantly amplify his support.

These rules help us understand why the opposition boycotted these elections in the first place. They are also a powerful reminder that not every elected body is democratic; instead, elected bodies are only democratic if they are selected in a way that is representative and fair to all voters. It reminds us that democracy is in the practical details.

CONSTITUENT ASSEMBLIES IN THEORY

Constituent Assemblies occupy a hallowed role in the theory of democratic constitution-making. These temporary, elected bodies allow the people to participate in the reshaping of their own constitutional orders. Once they have drafted a new constitution, they then disappear from the political scene and turn politics over to the institutions envisioned in the new constitution.

Versions of these kinds of elected constitution-making bodies were present at the birth of democratic politics in the late 18th Century. In the United States, elected constitutional conventions played a critical role in the adoption of the constitution (and in some of the states as well). In France, the National Assembly became the chief constitution-making body.

This practice remains in wide use today. Formal constitutional change and replacement in the American states has made wide use of elected constitutional conventions. Article Five of the United States Constitution contains a provision allowing for calling “a convention to propose amendments.”

Former Venezuelan President Hugo Chavez established a temporary National Constituent Assembly in 1999.

They are extremely important in Latin America, where temporary constituent assemblies have been at the forefront of democratic change. Across the region, democratic constitutions specify constituent assemblies to be called for the drafting of new constitutions. Perhaps the most successful example was the Constituent Assembly convened in Colombia to draft its new constitution in 1991. President Maduro has appealed heavily to this tradition in calling the current Constituent Assembly.

CONSTITUENT ASSEMBLIES IN PRACTICE

These temporary bodies, however, can be manipulated for anti-democratic ends.

First, because they are temporary ad hoc bodies called into existence at times of constitutional change, the selection rules (electoral rules) are not already set. This uncertainty frequently allows powerful political actors (often presidents) to manipulate the electoral rules to advantage their own supporters. There is precedent for this in Venezuela. In 1999, newly-elected President Hugo Chavez single-handedly drafted the rules for a temporary National Constituent Assembly. These rules skewed in his favour and helped him dominate the Assembly (which is now held in majority by the opposition).

Second, once controlled by a certain majority, these temporary constituent assemblies can then claim the power to do more than just propose new constitutional text. Instead, they can reshape the entire institutional landscape before they propose a new constitution. Because they represent “the people” in drafting new constitutions, they can claim to possess inherent “runaway” powers to issue binding laws, remove government officials, or disband pre-existing institutions.

In 1999, the Chavez-dominated Assembly claimed in its founding statute, that “The Assembly, in the exercise of its inherent powers, may limit or decide to cease the activities of the authorities that make up the Public Power.”

VENEZUELA’S 2017 CONSTITUENT ASSEMBLY

President Maduro has taken advantage of both of these factors in the establishment of the new assembly. First, he drafted the electoral rules to amplify his support. The Assembly has 545 members: 364 territorial members and 181 “sectoral” members. For the territorial seats, Maduro wrote the rules in order to ensure that rural districts (where his support is greatest) have far greater representation. As one commentator describes it, “The vast bulk of municipalities are rural, while the vast bulk of Venezuelans live in a relative handful of urban municipalities.” This malapportionment technique skewed seats in favour of Maduro.

Maduro also drafted the rules for the sectoral seats to suit his own interests. These seats represent different sectors of the economy, including workers, farmers and fishermen [and fisherwomen], students, people with disabilities, indigenous people, pensioners, businessmen [and businesswomen]. To be elected to one of these sectoral seats, one has to be “certified.” These certified seats allow Maduro significant opportunities for manipulation.

Second, President Maduro is claiming this body stands above the existing constituted powers such as the legislature. In a televised address the evening before the vote, he described the Assembly as “a power that’s above and beyond every other. It’s the super power!”. And, since convening, the Constituent Assembly has claimed the power to remove the Attorney General from power.

It is likely that the Constituent Assembly will continue this approach by claiming legal authority to dismantle the elected legislature and to reshape the political landscape before a new constitution is passed.

HIDING BEHIND DEMOCRATIC RHETORIC

President Maduro was taking few risks in calling an elected Constituent Assembly despite his growing unpopularity. On top of vote rigging and suppression of debate, he has even sought to ensure that the electoral rules were in his favour. This is a powerful reminder that democracy is really found in the details.

And these details are a key way to see through the democratic rhetoric around this Constituent Assembly to its actual goal: to dismantle the institutional basis for Venezuela’s opposition forces and consolidate power.

By Dr William Partlett, Senior Lecturer at Melbourne Law School. This post is cross-posted from Pursuit.