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The plebiscite and the Constituent Assembly: Between constitutionality and power

The plebiscite called by Venezuela’s National Assembly lacks the power necessary to prevent President Nicolás Maduro from forming a Constituent National Assembly. Photo: Federal Legislative Palace in Caracas, Venezuela. (Press Office/National Assembly of Venezuela)

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A plebiscite will take place Sunday in Venezuela. Opposition politicians in Venezuela’s National Assembly called for a plebiscite in response to President Nicolás Maduro’s summons of a Constituent National Assembly (CNA) to write a new constitution. Both actions, the plebiscite and the summons of a CNA, are in an inverse relation with regards to the constitutionality and the real power each one has. On one side, the plebiscite has constitutional bases but its results are symbolic. On the other side, Maduro’s summons lacks constitutional bases but counts with the real power that the executive branch—supported by the military—has to carry out its plan to form a CNA. The disparity between actions based on the constitution and actions based on the arbitrary power of the executive branch and the military is the perennial threat all democratic systems face. In the case of the plebiscite and the CNA, the disparity demonstrates how fragile the rule of law is when those who are in power are willing to destroy it.

The Assembly bases its call for a plebiscite on article 71 of the Venezuelan Constitution. The article states that the Assembly can call a referendum to decide “matters of special national transcendence.” Likewise, article 70 establishes “popular consultation” (i.e. plebiscite) as one of the “means of participation… of the people in its sovereignty.” Thus, the Assembly has the authority to call for a plebiscite to ask the Venezuelan people if they want the formation of CNA without previous consultation, if they want the restoration of the rule of law and elections to form a new government.

The formation of a CNA is also prescribed in the constitution (Title IX, Chapter III). However, it is the Venezuelan people as the “depositary of the original constituent power” the only one who can summon a CNA (article 347). The president, the National Assembly, municipal councils or fifteen percent of the electorate can have “the initiative to summon” a CNA (article 348). As Carlos García Soto, law professor at the Central University of Venezuela, explains, the president can have the initiative to form a CNA. But, the people decides through a referendum if they wish to summon a CNA or not. The referendum is the crucial part of the process that Maduro omitted. This omission leaves without constitutional basis Maduro’s summons and the July 30 elections to choose the members of the CNA. At the same time, this is one of the objectives of the Assembly’s plebiscite, to ask the people if they wish to summon a CNA and officially register their rejection of Maduro’s plans.

Despite being constitutional, the plebiscite lacks power. Better said, the Assembly lacks the power needed to carry out whatever Venezuelans decide on Sunday. The result of the plebiscite is already known. More than a hundred days of marches and protests against Maduro and his CNA are enough proof of the will of the people. Venezuelans’ patent repudiation of the government is what led Maduro to defy the constitution and call for fraudulent elections for the CNA without a prior referendum. Meanwhile, the Assembly has been incapable of doing its job due to the beleaguerment of the other branches of government. Allied with Maduro, the Supreme Court, the National Electoral Council and the military constitute a united front that the Assembly cannot overcome. With this lack of power, the plebiscite will only serve to demonstrate once more that the government’s actions are unconstitutional and against democratic rule.

Nicolás Maduro dando un discurso en el Tribunal Supremo de Justicia, 7 de febrero del 2017. (Gobierno de Venezuela via Wikimedia Commons)
President Nicolás Maduro giving a speech at the Supreme Court, Feb. 7, 2017. (Government of Venezuela via Wikimedia Commons)

Conversely, Maduro and the government leadership have the luxury of summoning a CNA and of dismissing the protests, the marches, and the opposition’s and political commentators’ criticism. They also have the luxury of establishing incongruent electoral rules that guarantee the election of representatives that will write a constitution tailored to Maduro’s desires. A new constitution will have to be approved through a referendum (article 344). Surely, Venezuelans will not vote for Maduro’s constitution. The problem, as a report by Carlos Ayala Corao, professor of constitutional law at Andrés Bello Catholic University, concludes, is that besides writing a new constitution, the main objective of the CNA “will be to leave without effect [the] Constitution of 1999 and to dissolve the ‘non-aligned’ constituted powers that obstruct the government… and furthermore to strip the representatives of the National Assembly of their parliamentary immunity to judge them in court.” Ayala also explains that the CNA will try to avoid the governor elections and the municipal elections that should have taken place in 2016 and 2017 respectively and the 2018 presidential election.

These measures will eradicate the last vestiges of democracy in Venezuela. As inconceivable as this possibility may seem, precedent demonstrates that the government is willing to disregard the constitution and that it has the power necessary to do so. We have to remember that the constitution has real power only when the people in charge of the state and the military are willing to respect, comply and defend it. Otherwise, the constitution is just a piece of paper.

The only way that the plebiscite could have power beyond the symbolic is if the results lead factions within the government leadership to reject Maduro’s summons for being unconstitutional and contrary to the wishes of the people. This possibility is extremely unlikely. If the massive protests of the past few months have not change the leadership’s position with regards to the CNA, the plebiscite is not going to do it either. Maduro will continue with his plans of forming a CNA, making this the decisive year for the future of Venezuelan democracy.

Despite the dark forecast and the lack of real power and immediate results, the plebiscite has to take place. It is one of the few options the Assembly has as it is besieged by the branches of government at Maduro’s service. It is perhaps the only option it has to defend itself from those who are trying to strangle it until the last breath of power and authority it possesses leaves its weakened and shackled body, and democracy comes to an end.

1 comment on “The plebiscite and the Constituent Assembly: Between constitutionality and power

  1. Pingback: El plebiscito y la Constituyente: Entre la constitucionalidad y el poder – Opinions and Ideas

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