PRESIDENT CHAVEZ’S PROPOSAL FOR THE MODIFICATION OF THE VENEZUELAN CONSTITUTION

Lecture delivered at the Buttler University, Indianapolis.

November 6, 2007

Adolfo R. Taylhardat 
 

From 1958 until 1989 Venezuela was one of the most democratic and stable political countries in Latin-America. In 1989, President Carlos Andres Perez launched an austerity program that fueled riots and street violence in which several hundred people were killed. In February 1992, Hugo Chávez, a former paratrooper, who at the time was a lieutenant colonel, attempted to overthrow the democratic government of President Carlos Andrés Pérez. Chávez was unsuccessful and landed in jail. In November of that year, occurred another unsuccessful coup attempt organized by another group of officers in the Venezuelan Armed Forces and those that remained from Chavez’s previous attempt.  

In May 1992, President Perez was dismissed from office on charges of misusing public funds. His crime consisted in using 250.000 dollars from the secret budget of the presidency to help protect the then recently elected Nicaraguan president Mrs. Violet Chamorro who was being threatened by the Noriega’s Sandinista movement. His only crime was to contribute to preserve stability and security to the newly borne democratic regime in Nicaragua. 

After having received a presidential pardon, Hugo Chávez was democratically elected president in 1998.  

It is true that he was originally democratically elected to rule a country that was seeking a change. The change promised by Chavez during his electoral campaign was supposed to bring more justice, better living conditions for the population, more jobs to cut unemployment, zero corruption, real participation of the people in the decision making process, improved educational system, less inflation, recovery of the economy, increasing foreign investments, more equitable distribution of wealth, eradication of poverty, houses for those who lack one, elimination of slums, social programs for the needy and the street children, combat against drug traffic, combat against  delinquency and insecurity, etc, etc. 

However, Chavez has not complied with any of his electoral promises and the overall situation of the country has deteriorated in all aspects during the eight years he has been in power. From the outset, it was clear that he was moving toward an authoritarian rule and pointing to his domination of all government institutions. In fact, he has subdued all the public powers - the Judiciary, the Parliament, the comptrollership, the Attorney General, the Defender of the People – and has turned them into his handy and convenient tools for driving forward his personal political project which he calls the “Bolivarian revolution”.

Chávez has replaced the country’s multiparty democracy with a political system that revolves around him, he stimulated a cult for his personality; he publicly proclaims his admiration of Fidel Castro and entertains excessively close relations with Cuba, while allowing the most scandalous levels of corruption among his followers.  

As part of his strategy to implant his political project, Chavez has divided the Venezuelan population by splitting it into those who support him and those who do not share his “Bolivarian process”. He uses hate has a political system, fear as an instrument of his policy and judicial harassment as a means of psychological torture. Those who oppose him are branded as putschists, traitors, oligarchs, racists, CIA agents, instruments of the “empire”, etc.

 

 

In 1999, one year after his election, Chavez convened a Constituent Assembly to draft a new constitution.  

The new document revamped political institutions, eliminated the Senate and established a unicameral National Assembly, and expanded the presidential term of office from five to six years, with the possibility of immediate reelection for a second term.  

In July 2000, under the new constitution, Chávez called for general elections to seek his reelection (he called it his “religimation”) Chávez was again elected for a new six-year term. that should have ended last January, but he was again re-elected last December 2007. 

Chavez’s “project” is neither limited to a national project nor confined to Venezuela. He pretends to succeed in what Fidel Castro failed to attain in the 60’s: that is to spread a leftist revolutionary movement to the rest of Latin America and to position himself as the leader of the region. 

As you know, a country’s Constitution is enacted to provide juridical security as well as political and institutional stability. It is the Law of laws, created to protect the citizens from eventual abuses from the ruling authorities and other public powers, particularly from the Executive. While instituting the autonomy of each of the powers, it establishes mechanisms of reciprocal control in order to assure the necessary balance in the performance of their functions and to guarantee the liberties and fundamental rights of the citizens. Every democratic constitution is basically a social pact resulting from a national agreement. It must respect and promote political plurality, tolerance, understanding and real participation in the decision taking process of the fundamental issues that affect the lives of the people. 

All this is recognized in the current Venezuelan Constitution, which in Article 7 establishes: 

“The Constitution is the supreme norm and the fundament of the juridical ordering”. 

When the 1999 Constitution was enacted, president Chávez himself proclaimed it as “the best Constitution of the world”.

As the 21st. Century was about to begin, he said it was destined to be the fundamental text for “the coming millennium”. 

However, scarcely seven years since that Constitution entered into force, even though it has not yet been fully implemented, developed or applied in many of its essential provisions, Chávez pretends to radically modify it. His proposal comprised the amendment of 33 Articles of the Current Constitution. 

Chávez initiative to modify the Constitution constitutes, in itself, a fraud against the Magna Carta. I would go even further; it configures a coup against the people, against democracy and against the fundamental law of the country. 

I. The fraud against the Constitution 

Chavez’s proposal pretends to introduce a drastic change in the political, economic, social and cultural regime of Venezuela, violating the fundamental principles of the Magna Carta. The proposal also abusively and arbitrarily contravenes the provision ruling the procedure for the amendment of the Constitution. 

1. The procedures for amending the Constitution. 

The present Venezuelan Constitution provides for two different procedures for its amendment: 

The “reform procedure”, which applies to a partial revision or to the replacement of one or several of its provisions, which do not imply modifying neither the structure nor the fundamental principles of the constitutional text. In this case, the initiative can be taken by the President, the National Assembly or the people. The proposal to reform the constitution has to be discussed and approved in the National Assembly and subsequently submitted to a popular referendum. This is in a way a “fast track procedure”. It is the easy way to modify the Constitution. 

The second procedure is the convening of a Constituent Assembly and it has to be applied when the purpose is to transform the State, create a new juridical ordering or to draft a new Constitution. 

Because of its magnitude and its far-reaching scope, president Chavez’s proposal falls within this second category and should have been dealt by a Constituent Assembly and not through the fast track procedure.  

This, in itself constitutes a fraud and configures one of the facets of the coup against democracy. Taking advantage of the unconditional support he has from the National Assembly, the National Electoral Council, and all the other public powers submitted to his personal control, he seeks to impose upon the people his proposals for changing the Constitution. 

2. The transformation of the State. 

President Chavez is asking Venezuelans to approve a sweeping and far-reaching change to the political, economic, social and cultural regime of Venezuela, as well as a change in the form of the State. By means of an ostensibly unconstitutional procedure, he is appealing the people to abdicate the true values of democracy and their sovereign rights.

It is true that president Chavez’s proposal does not directly refer to any of the first nine Articles of the Constitution contained in Title I, “Fundamental Principles”. 

But the changes to the text of the Constitution that he is proposing seek to establish the continuous or indefinite election of the Head of the State, to change the political-territorial organization of the country, to introduce substantial changes in the public financial administration, to modify the social and economic regime and to drastically transform the Armed Force and consequently establish a new juridical ordering of the country. 

The pretension to impose a political and ideological model absolutely contrary to the idiosyncrasy of the Venezuelan people openly violates Article 2 of the Constitution, which characterizes the country as a democratic and social State of law and justice, based on the preeminence of law and justice, ethics and political pluralism. 

3. - The connivance of the other public powers.  

Once he decided to go ahead with the amendment of the Constitution, president Chávez set up a “Presidential Committee” with the mandate to prepare, under his direct supervision, a draft with the amendments to be introduced in the Magna Carta. Among the members of that Committee were the President of the Supreme Court of Justice, and the President of the Parliament. 

According to the provisions of the Constitution, the National Assembly should have limited itself to examine president Chavez’s proposal and approve it, modify or reject it. In any country functioning under a real democratic system and within the rule of law, the Parliament serves as an organ of control to hold back any abuse from the other public powers, particularly from the Executive. But the Venezuelan Parliament is nothing but an instrument of the president. It went far beyond its competence and introduced a number of additional proposals augmenting the number of modifications from 33 to 36. I will refer to this more specifically later on.  

II. Some of the most relevant modifications of the Constitution. 

I will try to summarize, from a “birds eye view” some of the most relevant, but also perplexing issues contained in president Chavez’s proposal. 

1. The duration of the presidential mandate is extended and the continuous or indefinite reelection is instituted.  

The current Constitution establishes a presidential term of six years with the possibility for the president to be immediately re-elected for one single additional term. 

In the previous Constitution, that of 1961, the term was 5 years and the president could only be elected anew after two consecutive presidential mandates. 

Chávez proclaims himself as the follower of Simon Bolivar’s political lessons. However, by proposing this change, he is blatantly betraying Bolivar’s thinking and teaching because he always warned that the continuation in power of the same person inevitably led to tyranny.  

Bewilderingly, some time ago, a congressman loyal to Chávez publicly recommended him to propose his indefinite re-election. At that time, Chavez strongly rejected such idea, saying that he had no ambitions to become a dictator. That conviction didn’t last too long. 

Indefinite re-election facilitates abuses of power, promotes populism and stimulates messianism, egotism and domination by political bosses.   Continuous or indefinite reelection is undesirable and inconvenient for any democracy whatsoever, but most particularly for those countries with weak public institutions, the so-called weak democracies, like those of Latin America, among them Venezuela. 

The President and his followers allege that there is no pretension of perpetuation in power because the people will have the opportunity, every seven years, to decide if they wish to reelect the president or to replace him. This, by all means is a deceit because it is well known that whoever exerts power, can, as indeed has happened until now, avail of the resources at hand to assure a favorable electoral result. Power gives power and facilitates controlling the institutions and their authorities and to turn them into tools for electoral advantage, finance the partisan political apparatus, develop tentacles to debilitate the adversary and to use the resources, logistic and all other facilities of the administration to unbalance any electoral process in favor of the president-candidate. 

It is also alleged that in many countries, particularly in Europe, the continuous re-election of the Chief of State is allowed. However, the parliamentarian or semi-parliamentarian systems allow sufficient effective control mechanisms to limit abuses of power. Those are systems where democracy indeed works because the Head of the Government, or Prime minister, remains in office as long as he benefits of the parliamentary majority. I he loses that majority the government falls and the Prime Minister, together with his Cabinet have to step aside and give way to a new government emerging from the new parliamentary majority. 

In summary, there is no possible comparison between the regime president Chávez wishes to impose in Venezuela and any other regime except the dictatorial systems unfortunately still prevailing in some countries.

Indefinite re-election attempts against the principle of democratic alternation, a cornerstone of political freedom consecrated in our current Constitution, which specifically establishes that the government of Venezuela “is and forever will be democratic, participative, elective, decentralized, alternative, responsible, pluralist and of revocable mandates”.  

2. The people will cease to be sovereign  

The proposal presented by president Chávez modifies the democratic principle according to which the sovereignty resides in the people that exerts it through suffrage.  The new text proposed decrees the “creation” of a “popular power”, overlapping both the municipal and the states powers. The proposal says “the people are the depository of the sovereignty and it directly exerts it through the Popular Power. This (the Popular Power) is not born from the suffrage nor from election, but it is born from the condition of the organized human groups as the basis of population. The Popular Power expresses itself creating the communities, the communes and the self-government of the cities, through the communal councils, the workers councils, the students councils, the farmers councils, and any other entity that the law indicates”.  

Did any of you understand that?  This is the kind of blurred and unintelligible language used all along the president’s proposal, which evidently is open to any interpretation.  

However, one thing is clear. If this proposal were approved, the people no longer will be the holder of the sovereignty but a simple “deposit taker”. It will not exert it directly but through the Popular Power.  

3. The proposal pretends to impose an ideology  

President Chavez’s proposal seeks to implant socialism as an ideology and as the political, economic social and cultural system in the country. This pretension also incurs in a flagrant violation of the principles consecrated in the current Constitution which establishes that Venezuela is a “Democratic and social State of Law and Justice that advocates as superior values (…) life, freedom, justice, equality, solidarity, democracy, social responsibility and, in general, the preeminence of human rights, ethics and political pluralism”. 

In trying to impose the socialist ideology, the proposal is excluding and discriminatory. It introduces an additional factor of polarization that will inevitably deepen the already existing division. The benefits of life in society and the participation in the welfare programs will be limited to the sector of the population that adheres to president Chavez’s project, whereas the rest of us will continue to be considered oligarchs, traitors to the mother country, and instruments of imperialism and so on. This perspective already has originated an exodus, particularly of young professionals who see that all prospects for their future are being closed. Inevitably, as happened in Cuba, that exodus will increase as the socialist system is consolidated and freedom and human rights are curtailed. 

4. Militarization of the state, introduction of politics in the Armed Forces, the new role of the Armed Forces. 

According to the current constitution, the National Armed Forces are an institution at the service of the State and of the nation in its totality and its function consists in safeguarding the institutions, the national sovereignty and protecting the people.  

In the proposed modifications, the Armed Force will be placed at the exclusive service of the president and submitted to an ideological partiality. The proposed changes state that the National Armed Forces are “essentially patriotic, popular and anti-imperialist” and will be responsible for the “continuity of the political project” of the president, thus becoming an instrument of the regime and of its political project. In addition, the proposed modification assigns to the Armed Forces functions that overflow their roll to preserve the territorial sovereignty and turns it into an instrument of repression against the dissidence. 

The Armed Force already has been given a significant roll in the conduction and administration of the government and of the main institutions of the State. 10 out of the 23 state governorships and seven ministerial posts are held by military officials. The military also hold important positions within the ministries and numerous governmental organizations, institutions and State owned companies, as well as mayoralties, the parliament and even in the Supreme Court of Justice. This is a way for the president to assure the “loyalty” of the military leaders and maintain them under his control. To their normal pay as members of the armed forces, they receive their salary as public servers.  

If the proposed modification of the Constitution is approved, the “Popular Bolivarian Militia (of about one million individuals) will be incorporated as an additional component of the regular Armed Force (counting with less than one hundred thousand effectives). It is clear that, as happened in Cuba, the final objective is to progressively replace the Armed Force with the Popular Bolivarian Militia.

5. The successful process of decentralization is put to an end.  

Decentralization and federalism will be affected by the centralizing process resulting from the concentration of powers and decision making on the president. President Chavez’s proposals seek to neutralize and eventually eliminate the mayoralties and the state governorships as instances of balance of power and management of public services and to replace them with “Communal Councils”. The aim is to debilitate the local power in favor of the central power.  

This is another violation of the fundamental principles of the current Constitution, which specifically establishes that Venezuela “is a federal decentralized State.” 

6. The constitutional model of mixed economy is replaced by a collectivist centrally planned economy.  

The prevailing economic model in Venezuela is that of a mixed economy, in which some of the means of production are private property and others, in fact the majority, are State owned. 

The modification of the Constitution seeks to implant an economic and social model similar to the one that existed in Ex-Soviet Union, in the Eastern European countries and in China. A system similar to the one prevailing in North Korea and Cuba.  

It is relevant to note that when the Venezuelan bishops asked president Chávez to explain his XXI Century Socialism, he told them to read Marx and Lenin.  

The abolition of market economy as a component of the mixed economy system and its replacement with a collectivist, centrally planned economy also configures an open violation of the fundamental principles of the 1999 Constitution.  

7. The private property is degraded 

During all our republican constitutional history, individual private property has been recognized and respected. The current Constitution textually states: “The property right is guaranteed. All persons have the right to use, benefit from, enjoy and dispose of their goods”. 

Initially, president Chávez proposal suppressed the attributes of benefit and disposition of the goods. Those attributes have been restored by the National Assembly but the proposal as it stands continues to be limitative. It does not refer to the property as a right but limits itself to “recognize” the use, enjoyment and disposition of personal goods “subject to the restrictions established by Law”. As can be seen, this text continues to be unacceptably restrictive.  

Additionally, the proposed modification places individual private property below the other “forms of property” that is the social, collective State and mixed properties. This is evidently a way to consecrate a communist model of State and communitarian property while at the same time depriving citizens of their full right of ownership of their privately owned belongings.  

8. The autonomy of the Central bank of Venezuela is eliminated 

The proposals also eliminate the autonomy of the Central bank of Venezuela turning it into a simple instrument of the President and his political project. The monetary, exchange and fiscal policies of the country, no longer will be the result of scientific and technical analyses matured by the connoisseurs of the matter, but will result from the ideological whim of the president. The principle of the budgetary unit is also eliminated, thus committing the greatest attack ever to the transparency in the management of public finances and widening the way to corruption.   

9. Freedom of initiative is also eliminated 

The right of every individual to choose the economic, commercial or professional activity of his preference (free initiative) is eliminated as a constitutional right. The same happens with free enterprise. This modification is also directed to establishing in Venezuela an economic model based on the public property of production means. The economic activity will become a fundamental and direct activity of the State and of the collective enterprises to be created or promoted. The participation of the individuals in that process would be relegated to a situation of marginality and total insecurity, since such participation will be subject to the discretionallity of the government.  

10. The “cyanide lollypops” 

As president Chávez needs to assure the popular acceptance of his proposal, he incorporated in it provisions to reduce the working time and to establish a Fund for the social security of independent workers.  

This is deliberately misleading, absolutely deceitful and obeys to a populist objective.  The current Constitution already contains the obligation of the government to progressively reduce the daily working time.  This means that the president at this very moment, without any constitutional reform, with the powers invested upon him by the habilitating law, could reduce the daily working time.

It turns out trivial to justify the legislative delay and the omission of the president to legislate with the argument that the length of the labor time has to be established by the Constitution and not by the law.  

On the other hand the current Constitution also establishes the obligation to create a universal regime of social security for all the workers of the country. The creation of such a Fund for social security is also contemplated in the Law. Eight years since the Constitution was enacted, that Fund has not been established supposedly because of lack of resources.  

11. The role of the National Assembly. 

As I mentioned earlier, according to the current Constitution, the National Assembly should have limited itself to discussing the 33 changes proposed by president Chávez. Instead, exceeding its faculties, in less than ten days it added 36 new modifications to be introduced into the Constitution. 

The most relevant modification proposed by the National Assembly relates to the right to due process and the freedom of information during situations of state of exception.  

Originally, the National Assembly had omitted completely the right to due process in such circumstances. As a result of critics emanating, not only from the opposition, but also from high officers of the government, the parliament toned down its proposal saying that during states of exception –which can be declared in cases of a coup d’état, social unrest, natural disaster or similar circumstances, only the right to be prosecuted by the natural judges, the personal integrity and the respect to the rule of 30 years as the maximum length for a condemnation, are guaranteed.  

However this proposal omits other important elements of the right to due process, among which are the prohibition to force a detainee to declare his culpability for any crime, the presumption of innocence, the prohibition to incriminate or impose sanctions for offenses not contemplated in the existing legislation (principle of legality) the non retroactivity of the law.  

If the proposal by the National Assembly were approved, the conditions of human rights and personal liberties will suffer a very serious set back and would contradict the provisions of the various international legal instruments for the protection of human rights. 

CONCLUSIONS 

All the changes to the Constitution being proposed by the president himself and by the National Assembly aim to one single objective: to supply the president the legal and constitutional cover that will allow him to continue developing and implanting his personal political project. All those changes converge towards the central objective of transforming Venezuela into a socialist State in the style of the so-called popular democracies that existed in Eastern Europe until the fall of the Berlin wall and the tumbling down of the iron curtain.  

It is important to establish a clear distinction between countries in which a socialist government is in power, as is the case in Chile and Brazil today, and countries in which socialism has been permanently imposed as an ideology and as an economic, social and cultural system, as is the case in Cuba, where the constitution officially established socialism as state dogma.

It is evident that Chavez’s objective is to turn Venezuela into a second Cuba under the disguise of the “XXI century socialism” now also called “Bolivarian socialism”.  

As is well known, the Marxist theory maintains that socialism will replace Capitalism as the necessary stage of transition towards Communism. 

I don’t exaggerate when I say that Next December 2nd, the fate of our country will be decided. December 3rd. will mark the date in which Venezuelans will be submitted to a neo-communist system.  

This danger must also be very clear and present to all Venezuelans. However, we also hope that our friends abroad and the governments of countries committed to the cause of democracy as the political system that better respects human rights and individual liberties understand the imminent danger we Venezuelans are facing.  

Believe me, and I am not dramatizing, once that system is established, once Venezuela is turned into a socialist State, the darkest chapter in Venezuela’s history will begin and, as generally happens, many years will pass before such a regime can be shaken off. In the meantime, the liberties and the rights of the people will be abused or totally suppressed.