“The Constituent Assembly is no panacea to solve all of Venezuela’s problems, but it is going to help us solve them, it is going to offer a starting point.” With these words, just hours after being elected in December 1998, the late Hugo Chávez insisted on his first decision as soon as acting president to convene a Constituent Assembly to draft a new Constitution, an instrument that would allow tackling corruption, poverty, inequality and other serious problems that plagued the country at the end of the 20th century.

However, two decades and two Constituents Assemblies later, these problems, far from being resolved, have worsened. This is what Acceso a la Justicia denounces in an investigation entitled Report on the National Constituent Assembly. Its use as part of the institutional facade in Venezuela.  

The report reviews the two constituent processes that the country has undergone since 1999 and makes it clear that, despite the differences, both served to weaken the already precarious Venezuelan institutional framework and replace it with an increasingly absent state and an autocratic form of Government.

Although the first process gave birth to the current Constitution, the text has never been observed by Chavismo; in fact, the existing institutional framework in the country has been dismantled ever since. The second constituent process has been truly worrying, not only because of the way it was installed –without a popular call and under electoral norms far from the most basic principles of democracy– but also because its objective was to neutralize the obstacle posed by a National Assembly (AN) not aligned with the interests of the Executive branch, after seventeen years of absolute control of Chavismo over the public powers.

Setting a wrong example

After recalling that the 1999 process took place even though the 1961 Constitution did not provide for the figure of the Constituent Assembly as a mechanism for constitutional reform which led to the need for an interpretation from the Supreme Court of Justice, Acceso a la Justicia indicates that the composition of the most recent National Constituent Assembly (ANC) –90% of the seats awarded to Chavismo although it only gathered 60% of the votes– could end up having dire consequences in the drafting of a new Constitution.

The seventy-one pages long document states:

“After the approval of the 1999 Constitution, the Government of Hugo Chávez Frías gradually introduced weighty modifications that we’re imposing a normative structure parallel to that provided for in the Venezuelan charter, in some cases and in others, the adoption of interpretations contrary to the Constitution that allowed to evade the limits imposed by it, a policy that would also be reproduced by the Government of Nicolás Maduro Moros, after the physical disappearance of Chávez in 2013”.

The report makes it clear that this could not have been achieved had the ruling party no control over the other public powers in the first place.

The report also adds:

“Between 1999 and 2012 Chávez governed without the counterweight of the National Assembly, since this body, controlled by the ruling party, had enabled him to exercise the legislative function based on four enabling laws. This practice would allow Chávez to issue more than two hundred legislative decrees that served him to dismantle the democratic institutions that had been enshrined in the Venezuelan constitutional text. So then, through these enabling laws, the Executive Power also served as Legislative”.

Nicolás Maduro followed suit, but after the opposition victory in the parliamentary elections of December 2015, he had to resort to other mechanisms such as the State of Exception to govern without any control. This would not have been possible without the endorsement of the Supreme Tribunal of Justice (TSJ), which has been aligned with the Government since its installation and has supported all the economic emergency decrees issued since January 2016.

One step further

The escalation of the social conflict caused by the non-recognition of the opposition-controlled National Assembly and Maduro’s claims to continue governing without responding to anyone degenerated into a new wave of protests in 2017, to which the authorities not only responded with more repression but with a new constituent process, which was very different from that of 1999, given that citizens were not consulted for their views on the matter, nor on the conditions for electing the members of the body that would be in charge of drafting yet another Constitution. All this caused the opposition, academics and human rights defenders, the Catholic Church and forty foreign governments to withdraw recognition of the second National Constituent Assembly.

During more than three years of operation, the ANC failed to present an agenda or hear the sectors of civil society interested in expressing their points of view. The body did not hold regular sessions and did not present a draft Constitution. However, it appealed to its status as a “supra-constitutional” body, just like its predecessor did back in 1999, to seize competencies from the constituted powers and disrespect the provisions of the Constitution to favor the interests of the Maduro Government and persecute dissent.

How does it affect Venezuelans?

Constituent Assemblies should be instruments to provide the countries with basic rules of coexistence, which are agreed upon and accepted by large social majorities to guarantee the efficiency and effectiveness of the resulting text. However, the last two processes that Venezuela has gone through in almost twenty-one years have failed to achieve these objectives due to the way they were conceived or how they were convened and, therefore, they will join the already long list of experiments that in the two centuries of republican history have failed to translate into political stability or prosperity for citizens.

The Constituent Assembly of 1999, despite giving birth to the first Constitution approved by the people in a popular referendum, opened the doors for the weakening of democracy and the consolidation of a hegemonic regime by granting more powers to the President of the Republic and facilitating the control over all public powers. This experience has been exacerbated with the Constituent Assembly of 2017, which served to “give the final blow to the process of dismantling the constitutional State and Rule of Law.”

You can read the full report in English HERE. 

Translated by José Rafael Medina