I have said little here about the recent decision by the Venezuelan Supreme Court on the consultative referendum. There are many reasons for this. Outrage was one. A second one was that the story can only be told in context. Each decision in Venezuela recently may appear to be reasonable, but they are not when they are viewed in context. In this essay I attempt to provide the full context of the Supreme Court, the Electoral Board and referenda in the last four years. Those that argue the simplistic argument:- Why can’t you wait a few months? – should read it carefully, the answer is clear, for the same reason Chavez could not wait a few months. Except in our case, it is legal, which was not tru for him! But in his case, it did not seem to matter, while we get nothing. Sorry for the length, could not shorten it!
A story of pilferage (or is it rape?)
When Hugo Chavez was elected President, one of his first acts was to call for a referendum to ask the people on whether they wanted or not to have a Constituent Assembly. Such a referenda was not contemplated in the Constitution of 1961. In fact, only Congress could change that Constitution according to the mechanisms of protection it contained. But the Supreme Court of the pre-Chavez era ruled that power resided in the people and thus, if the people approved the Constituent Assembly in a referendum, then it was legal.
In the same act, the “people” gave the Government the power to set up the electoral rules for the elections to the Constituent Assembly. The 1961 Constitution guaranteed the principle of proportional participation (as does the 1999 one) to protect the rights of the minorities. However, the rules made up by Chavez and his collaborators were such that despite the fact that they received only 67% of the vote, they had 96% of the representatives, but no matter.
The Constituent Assembly rewrote the Constitution, approved it and on that fateful day in December of 1999 it (thousands died due to flooding) was approved by less than 36% of the registered voters. In the next few weeks, three different versions of the Constitution were published, none of which agreed with the version approved by either the Assembly or the people. But no matter.
In January 2000, Hugo Chavez, in a preview of the famous words he said in 2001 “I am the law, I am the State”, decided that all electoral positions had to be reelected, that he would remain in his post, but everyone else would be removed immediately. There was one problem though. Who would legislate in the time between his decision and the rightful elections of the new National Assembly? The solution was simple, a “transient” body called the “ Congresillo”, which had no legal bases was created and Venezuela was run and ruled by such an undemocratic, lawless body for 6 months. The members of this body were appointed by the Chavez Government and even though I recall Chavez saying that “all” were elected members of the Constituent Assembly and thus were elected by the people to represent them, this was incorrect as an acquaintance of mine, Nelson Merentes, was part of the Congresillo but was not elected to the Constituent Assembly. But no matter.
The “Congresillo” ran onto another problem. What to do until the National Assembly was elected with important positions like the members of the Supreme Court, the Electoral Board, the Attorney General and The people’s defender? All of these had been forced to resign except for the People’s Defender which did not exist. Once again the powerful concept of “transitivity” was invoked and the lawless Congresillo selected and elected all of these positions. This is the origin of the current Supreme Court and Electoral Board that so irk the Chavez administration. Moreover, the current Attorney General was Chavez’ first Vice-President. You can see how this is a tale of pilferage and some rape. By piling one illegality on top of each other, Chavez managed to personally select the Supreme Court without the participation of the opposition as well as the Electoral Board. And this was a “new” democracy. But no matter.
Roughly speaking, because it can’t be proven, the Supreme Court was composed of roughly a third chosen from loyal lawyers to the “cause”, another third from corporate lawyers associated with Chavez’ biggest fundraiser and one third by academic sympathizers. The Electoral Board was composed roughly half by Chavez’ loyalists and the other half by independents with no evident political affiliation. The Court ruled along the Government party line up to April of last year. Since then, the Court has rebelled against Government pressure, becoming more independent. In fact, in December eight of the twenty Justices said they were declaring a work stoppage to protest the Government’s pressure and persecution.
The Electoral Board was a different matter. While in the limelight when elections take place, the Board has little political “glamour” in between elections. Thus, many of its members, particularly the Chavistas, began looking for greener pastures (no pun intended!). On Nov. 4th., only four of its ten members remained in their jobs and the National Assembly had not only failed to take actions in naming replacements to those that had resigned, but it had failed to even formally accept the resignations of three of them, as required by law.
On Nov. 4th. over two million signatures were submitted to the Electoral Board asking for a referendum to ask the question: “Do you want Hugo Chavez to voluntarily resign from his position?”. The first attempt to block the referendum took place that day, when the path of the march/caravan carrying the boxes with the petitions was violently blocked by Chavez’ supporters led by Chavez’ well-known associate Lina Ron. The National Guard intervened, everybody was sprayed with tear gas but the petition was somehow handed in.
Later that same month, Hugo Chavez asked the Supreme Court to rule that some of the articles of the new Electoral Power Bill approved by the National Assembly were unconstitutional in an attempt to stop the referendum. The Court ruled they were not and Hugo Chavez sent it back to the National Assembly. However, the Venezuelan Constitution says that the President can do one or the other, but not both and the Supreme Court ordered the President to decree the new bill, as it was.
By then the Electoral Board had approved the referendum and its legality and scheduled it by a vote of three to one to take place on Feb. 2nd.. But the Supreme Court issued a ruling saying that any decision had to be made by a majority of four, which at the time meant it had to be unanimous, since six members of the Board had resigned, even if only three of these resignations had been formally accepted by the National Assembly. Roughly at the same time, the Court rejected an injunction to declare the question illegal.
At this point, one of the members of the Board who had resigned announced that he was withdrawing his resignation and would join the Board. A pro-Chavez member of the Board said she would do the same, but her resignation was indeed legal as she had held another Government post since. All votes of the Electoral Board were recast with the extra member and decisions approved as required by the Supreme Court. At this point the Chavez administration said that it considered the referendum illegal, had no money for it, would provide no military security on the day of the vote and would not allow the use of public schools to hold the vote as it is customary.
Chavez’ supporters introduced then two injunctions, one to declare the question illegal and another one to declare the participation of the additional member illegal. The Electoral Board proceeded making plans for the referendum Feb. 2nd. asking the public to donate the funds and the private sector the material for the ballots. With only thirteen days to go, the Electoral Hall issued this week an injunction suspending the referendum until the full Court decides on whether the new member was or not a legitimate part of it, and ordering the Board not to carry out any electoral activity until the issue is resolved. According to Venezuela’s laws there is no time limit on how long this may take. Thus, not only was the referendum suspended but, at this time, no election is possible in Venezuela, until the Electoral Hall allows it!
This is the context of this week’s decision which was reported by the New York Times as “High Court suspends referendum” but within the text of the news it quotes Chavez and its supporters saying they consider it illegal, but no mention is made of the fact that the suspension was made simply on a technicality and not on the illegality of the referendum. In fact, that same day The Constitutional Hall ruled, once again, that the question, and thus the referendum itself was legal.
The sad truth is that the referendum was not only the origin of the current general strike, but that it would have provided a relief valve for the current crisis. A resounding defeat by Chavez would have removed the “mandate” he claims to have for his revolution and forced him to negotiate an electoral solution ahead of the recall referendum in August. The High Court may yet give us another surprise. There are two “revision” requests introduced in the Constitutional Hall of the Supreme Court. While many believe that there is little chance that the decision by the Electoral Hall will be overturned, I would not dare predict it will not happen. By now, the ways of the Court are highly mysterious as it distances itself from Chavez and its administration.
What is most remarkable about this story is how the unwritten “power resides in the people” allowed the 1998 referendum, but its presence in the new Constitution has simply been immaterial. Some call it pilferage; I prefer to call it rape.