Venezuela: Chavez's proposed constitutional amendment illegal
By Aleksander Boyd
EXECUTIVE SUMMARY
- Venezuela 's President Hugo Chavez has presented a proposal to amend the constitution. The single most relevant issue at hand is President Chavez's desire to abolish term rules and alternation in power.
- Given the nature of the amendments proposed only a supra constitutional body, such as a National Constituent Assembly (NCA), can approve it. In fact such mechanism is contemplated in the current constitution, which explicitly states that "...transforming the State, creating a new juridical order and drawing up a new Constitution" can solely be approved after convening a NCA (Art. 347).
- Article 25 of the current constitution states "Any act on the part of the Public Power that violates or encroaches upon the rights guaranteed by this Constitution and by law is null and void..."
- The Electoral Chamber of Venezuela 's Supreme Court (Tribunal Supremo de Justicia) has ruled twice, on 18 march 2002 (sentence no. 51) and again on 30 March 2006 (sentence no. 73), against indefinite re-election.
Shortly after his first electoral victory in 1998 President Hugo Chavez brought to the fora the novel idea of summoning a National Constituent Assembly (NCA) with the purpose of refunding the Venezuelan State. Having inherited an allegedly dysfunctional institutional framework, which was not of his making, could have hindered the advancement of his revolution. Banking on the huge popularity levels enjoyed at the time, the premise that only through such process could proposed changes come about it the NCA was a rather easy sale. Ergo a referendum was organized, asking the people whether or not it approved the convening of a NCA. The motion passed the public test. Subsequently people's representatives to the NCA had to be elected, so an election was organized. In the end 124 of the 129 representatives were either members or avowed supporters of Chavez's political platform. It is to be noted that none of the mechanisms utilized by Chavez were contemplated in the 1961 constitution, current at the time. Thus in 22 December 1999 the NCA, a week before the new Constitution was enacted, decreed a "transition regime' which ceased the functioning of Congress, dissolved the Senate, legislative assemblies and all other public powers. Then, arguing that the new Constitution had yet to take effect (it had been approved already few days earlier in a referendum on 12/18/99) it created a National Legislative Committee, named the new members of the Supreme Court, the people's Defender, the Attorney General, the National Electoral Commission and the Comptroller. In one fell swoop all powers of the Venezuelan State, elected or otherwise, were dissolved and Chavez packed newly created institutions with his cronies. The new constitution allowed for one reelection of elected authorities.
Fast forward 8 years. A fresh mandate gained in December 2006, which runs out in 2013, and absolute control of all the branches of power is just not enough. With the proposed amendment President Chavez mainly seeks to remain in power indefinitely. The rest, although shocking, is in fact irrelevant. For the leitmotif of the Venezuelan caudillo is clear. However the very constitution his cronies drafted and approved at the end of 1999 stands in the way of the attainment of it. For instance article 6 of the current constitution, in the section of Fundamental Principles, reads "The government of the Bolivarian Republic of Venezuela and of the political organs comprising the same, is and shall always be democratic, participatory, elective, decentralized, alternative, responsible and pluralist, with revocable mandates." (Bold added). It is therefore natural and logic to conclude that doing away with such a crucial part of one of the fundamental principles of the constitution, by not respecting the mechanisms provided, is unconstitutional.
Further given the fundamental character of the amendment to article 230, from the current: "The presidential term is six years. The President of the Republic may be re-elected, immediately and once only, to an additional term" to the proposed: "The presidential term is seven years. The President of the Republic may be re-elected immediately for a new period" leaves very little doubt about the incumbent's intentions. Do not fail to note however that re-election is only being proposed for the office of the Presidency; for neither mayors nor governors nor any other elected official are to benefit from such possibility. President Chavez is on the public record stating that the emergence of caudillos must be avoided.
The constitution contemplates in its article 25 that "any act on the part of the Public Power that violates or encroaches upon the rights guaranteed by this Constitution and by law is null and void..."
Aside all the aforementioned and the anti democratic, dictatorial and utterly militaristic changes introduced in the reform there are two rulings, from the highest court of the land nonetheless, against any form of indefinite reelection. On 30 March 2006 justice Fernando Ramon Vegas Torrealba from the Electoral Chamber of the Supreme Court, applying the principle of precedence, reiterated a sentence issued 18 March 2002 by justice Rafael Hernandez Uzcategui, stressing upon the importance of taking into account that Venezuela's constitutional order, since its inception in 1830, established, as a general principle and democratic premise, alternability in office. Justice Hernandez Uzcategui went further affirming that in the case of the designation of the President of the Republic this disapproval has translated into rigorous constitutional previsions such as those contained in Venezuelan constitutions of 1830, 1858, 1891, 1893, 1901, 1904, 1909, 1936, 1945 and 1947 whereby immediate reelection for the following period was forbidden; the constitution of 1961 forbade reelection for ten years or two subsequent terms after end of a given term. As noted above the current constitution (article 230) establishes that reelection can take place only once, to an additional term.
Hugo Chavez will get his Congress, where the opposition has no representation, to approve the reform before putting it to referendum. That's for certain. The referendum results, considering the sort of electoral machinery, immense financial resources and media control under his unrestricted and unaccountable disposal, are also a given. This fresh attack on democracy puts Chavez squarely in the dictators' category: the last time such a thing happened in Venezuela was during General Juan Vicente Gomez's dictatorship, which lasted 27 years.
Articles of the current constitution could be checked following this link.
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