Legal Alibis

January 16, 2009

On December 2, 2007, the people of Venezuela  rejected  the  indefinite reelection of the President in  a Constitutional Reform referendum. However, a year after the defeat of his proposal, President Chavez is pushing again for a constitutional amendment to reintroduce indefinite reelection. Following the presidential announcement, politicians, lawyers and figures of supposedly independent public powers have rushed to give us legal opinions to make us understand that there is nothing wrong, legally speaking, with the new proposal.

The legal contortions are not simple and present diverging strategies depending on each case: some concepts of the Constitution are interpreted with wide latitude, stretching to the maximum its possible meaning, while others are a narrow, myopic and literal reading of the Constitution, which completely ignores the spirit of the law.

The result is a silly putty Constitution whose interpretation is stretched or hardened so that it tailors to the desires of the caudillistic President.

In what follows, I analyze the different types of “alibis”  that I have heard or read about with regards to the legality of the constitutional amendment.

1 .- Broad Interpretation Alibis

1.1.-The Potential Alternability

Alternability is a major hurdle for the amendment since Article 6 of the Constitution clearly declares it as a fundamental principle. Therefore, a reform that would involve touching this principle would be modifying the Constitution and would require the approval of a Constituent Assembly.

To bypass this major legal obstacle, a much broader interpretation has been given recently: Since there exist elections  recall referenda procedures, the notion of Alternability  contained in the fundamental principles of the Constitution would not be affected as long as the people have the power to decide whether the President stays or leaves.

In other words, Alternability would be interpreted as the potential to have a different President rather than the certainty of having him.
I disagree with that interpretation.

In fact, if Venezuelans awaken in twenty years with an elected President who has been in power for 30 years, one can not say that there was during  that time alternability of power, even if elections have been impeccable.

Until a few days ago, the new definition of Alternability meant imposing a  legal hurdle not easy to overcome: if the Presidential alternability  were interpreted as a potential for alternating governments, the same definition should have been applied to the other elected positions which have the possibility of recall. Otherwise, Alternability would have been interpreted in one way for the President and in another way for other elected officials.

That two-headed definition is not recognized in the fundamental principles of the Constitution. Therefore to insert it would have implied a fundamental change and would have needed a Constituent Assembly.

Therefore,  I suspect that those who devote themselves to making up legal alibis for the President warned him of this obvious duality, which is why the indefinite re-election proposal was unexpectedly extended to other elected officials.

1.2-Restrictiveness of Article 230

Another argument I have heard to support indefinite re-election is that Article 230, which stipulates that the President may be reelected only once, restricts the choice of the people and therefore it would be anti-democratic. In this case, the restrictiveness of Article 230 was precisely imposed by legislators to insure a solid democracy which would endure in time.

In fact, it was clear to lawmakers that there was the need to avoid the temptations that the archaic currents of caudillismo still present in the Venezuelan spirit would prevail. That is why the 1961 Constitution restricts reelection and that such a limitation persists in that of 1999.

Therefore, and because the restriction exists in explicit fashion , trying  to change it is not a trivial matter because it goes against the fundamental spirit of the Constitution and would require the endorsement of a Constituent Assembly.

1.3-Great democracies of the world  do not put an end to Presidential mandates.

In various occasions, I have heard as an argument the fact that the great democracies of the world do not impose term limits to mandates. This happens to be “a wide interpretation alibi” because the majority of the countries that are mentioned have parliamentary systems.

This is not a casual fact. Presidential systems give enormous amounts of power to the current President. Therefore, term limits are used to slow contain them. In fact, I know of no solid democracy with presidential systems without term limits. The example of France, which is commonly cited, not only ignores the fact that France has a mixed system (parliamentary and presidential) but also that recently a law was approved to restrict the terms of the President, so that indefinite reelection is no longer a French phenomenom.

The opposite is also true: the examples of presidential systems without term limits are not particularly representative of great democracies. Such is the case of Cuba, Zimbabwe and Bieloruss.

Parliamentary systems, on the contrary, not only are less focused on the individual, but they have a series of internal controls which automatically limit power and force the President to constantly give account of his actions and decisions. In fact, it is not the Head of State who governs, but the party. In the British system the head of the opposition even is part of the Government, with a budget, space and his own perks. His role is to question the Prime Minister and his Ministers daily about what they are doing. In other words, the opposition and the Government’s party have a key role to counteract any abuse of power by the Prime Minister.

As an example, in a parliamentary system like that of Canada, the Prime Minister asks for permission to have half an hour a year to talk to the Nation. The message is previously sent to the media and systematically, the Head of the opposition receives exactly the same space and speaks immediately afterwards in order to preserve a balance with the Government.

Very little to do with the weekly five hours of Alo Presidente, nor the continuos nationwide addresess (cadenas) of indeterminate length that exist in Venezuela.

1.4 The concept of a recall referendum is guarantee of Alternability

To those that support indefinite reelection, the recall referendum is the guarantee of democratic alternability.

It is a pretty alibi of legality since, in theory, the people have the power to freely revoke any mandate in the middle of the term.

That is the theory. Sadly, in the recent history of Venezuela, the petition to request the recall referendum against President Chavez was turned into a systematic instrument of discrimination and coercion in such a way that the Venezuelan people will never again dare to sign a petition to revoke anyone with true power.

Therefore, even if the recall referendum could have been an instrument to counteract the unlimited power of a President with caudillo aspirations, in practice, it not only has been a failure, since never modern Venezuela had been so dependent on the Caudillo, but it represented an instrument of division of the population and of limiting individual rights.

In conclusion, one can not use a legal concept whose applicability has been extremely harmful to both human rights as well as the democratic well being of the country as an agument to counteract the enormous danger that the introduction of indefinite reelection would represent.

2.-Narrow interpretation alibis

Those that back with legal arguments the indefinite election skip over the fact that there already was in Venezuela a referendum about a reform and one of points of that reform, the most important one, was precisely, that of the indefinite reelection.

But when they are asked about that important detail, those that on other points argue for the widest range of interpretation, turn then towards a literal and obtuse interpretation of the Constitution.

2.1 Article 345 of the Constitution states that a reform can not be voted twice within the same Constitutional period. The alibi used by the legal spokesmen of the President is that an amendment is not the same as a reform and that we would be voting on two completely different things.

There are two arguments, one literal, the words “amendment” and “reform” are different and another one to the heart of the matter, the reform of 2007 dealt with a group of changes while the 2009 amendment would deal with a very precise modification.

Let’s begin by analyzing the second argument according to which Article 345 of the Constitution would not apply because Venezuelans would be voting on two different proposals.

Article 344 of the 1999 Constitution establishes that the referendum for the reform can be voted separately. President Chavez was told to make use of the prerogative and he did not want to: He opted for inserting the indefinite reelection within a group of articles and ask that they be voted as a block. Thus, had the reform been approved, the indefinite reelection, and all of the changes the President had proposed would have been approved, even if the voter had disagreed with sme of them.

That was not the case: The president lost, which is why the indefinite reelection and all of the other articles proposed were rejected. In a few words, the indefinite reelection was voted on and rejected by the voters.

Let us now go to the literal argument according to which Article 345 does not apply because the amendment and the reform are two different concepts and 345 uses the word “reform”.

An amendment fits within the spirit of Article 345, despite what the defenders of the proposal want us to believe, because if you allow President Chavez to come back via an amendment to vote on a point that the people rejected already, nothing will stop a President, whether this one or any other one, to subject the country until they are worn out, to constant referenda on the same subject happily going from a reform to an amendment. The opposite would also be true: Nothing would stop the opponents from proposing the opposite point until it is approved.

That is why Article 345 exists, to avoid such a circumnstance. In conclusion, to legally accept that you can vote on an amendment over a subject that was already voted and rejected via reform or even, via a prior amendment is to open a Pandora’d Box that could be very costly for the country in terms of peace and democratic stability and a clear violation of the law.

2.2.-New Alibis

The New Year brought us a surprise: The President and his supporters, which up to a few days earlier fervently defended without any hesitation that only the President should be reelected indefinitely, made a spectacular about face. Whether for reasons related to the lack of popularity of the proposal or because the alibi of alternability would fit better from a legal point of  view, it is now proposed that all popularly elected positions be allowed to have an indefinite reelection.

The problem is that the argument of the amendment was simply to erase a phrase to one of the article is not longer true, since now a number of articles need to be modified. One could ask if now the amendment which was not a reform is being transformed in a reform which is an amendment.

In the face of such an argument, the alibi makers tell us that Artile 340 states that the amendment has as its objective adding or modifying one or more articles of the Constitution.

That is in fact the case, except that the article adds at the end “without altering its fundamental structure”.

In other words, if the amendment of an article was illegal, so will be one on many articles since it is based on a new interpretation of what alternate mandates are and above all, it completely ignores the fact that the indefinite reelection was already voted on.

In any case, despite all of the legal intricacies that they want to sell us, we all know what is happening: The Constitutional changes obey only to the desires of a Caudillo to remain in power eternally and are possible only because of the huge vacuum of democratic institutionality in which the President and his alibi makers, have led Venezuela into.

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