It is important to understand what may or not happen for a consultative referendum to take place and what are the pitfalls on the way to a possible referendum.
As described in an earlier post the new Venezuelan Constitution, approved and promoted by Chavez, in Article 71 says that “matters of special national transcendence may subject to a consultative referendum by the initiative of the President in a Cabinet meeting, by the agreement of the National Assembly by the vote of a majority of its members, or at the request of 10%of the voters registered in the civil and electoral registry”
Thus, between now and Monday, either the President or the National Assembly could attempt to jump ahead of the opposition by proposing a consultative referendum with a softer question than that being proposed by the opposition which essentially asks whether people think Chavez should resign or not. Usually, the National Assembly requires two discussions to approve a law, but here the Constitution only talks about an “agreement” by a simple majority. Thus, it could be done at a time. It appears unlikely at this time that the Government will attempt to do something like that, because it would go against their public argument that such a referendum is unconstitutional.
The opposition has plans to submit the signatures on Monday Nov. 4th to the National Electoral Council. The council has already said that it is technically feasible to hold such a referendum within 45 days. According to Venezuelan procedural law, the Council has thirty days to either approve or reject the referendum. It can either reject it because insufficient and valid signatures are presented or because the matter may not be considered transcendental or may be incompatible with the Constitution. The opposition claims to have already a number larger than the 1.2 million required and hopes to submit 2 million signatures previously verified by them. The Government is arguing the latter as Article 72 says that all publicly elected positions may be revoked by referendum after half of the period for which the person has been elected has gone by. Thus, they argue, you would be violating Article 72 by approving such a referendum. The opposition says that this would not be a revoking referendum as it would be non-binding. Obviously were Chavez to lose by a large margin he would become essentially a lame duck and be forced to resign even if the result is non-binding.
The most likely strategy by the Government after Monday is to submit a request for an injunction in front of the Constitutional Hall of the Venezuelan Supreme Court. The Hall can approve such an injunction and the full Court would have to consider such a decision. There would be two basic problems with this Constitutional interpretation. First of all, the Court has already backed two consultative referenda, one of which was held even before the new Constitution had been approved. At that time, the Highest Court argued that a referendum to call for a Constituent Assembly could be held because sovereignty resided on the people, even if the Constitution did not say it explicitly. Well, the new Constitution says that explicitly in Article 5 when it says “Sovereignty resides intransferably on the people who will exercise it directly in the ways contemplated in this Constitution and in the Law…..”.
In any case, it may just be that for the Court this question may become more of a political than a legal question, since it is clear that the country has come to a practical standstill due to the current political crisis.
If the Chavez administration won on the issue of the constitutionality of the referendum, the opposition’s only electoral option would be to wait until half the term of President Chavez has gone by to hold a revoking referendum. For that, the Constitution contemplates obtaining the signatures of 25% of registered voters (some 3 million signatures which sounds feasible). However, for the referendum to be approved, the number of voters approving the referendum has to be equal or larger than the number that voted for the person according to Article 72 of the Constitution. This might not be as difficult as abstention was high (only 56.7% of the population voted) with Chavez receiving 3.75 million votes or 56.93% of the vote. However, abstention will be the critical factor. In fact, were Chavez to discourage his supporters from voting might be sufficient to have the referendum go in his favor. There can only be one revocatory referendum for an office holder. The Constitution in Article 233 says that if the President is replaced within the first four years of his term, he would be replaced by the Vice-President and election would have to be held within thirty days. In Venezuela the Vice-President is appointed by the President, so he could essentially handpick who will oversee the thirty day transition as he could appoint anybody up to the last minute of his Presidency.
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