No More Constituyentes – Please!

Sorry about the radio silence, folks, I’ve been travelling. Still, I felt strongly like I need to comment on Juan C.’s possibly inevitable Constitutional Assembly post, because it rattled me. I really feel Venezuela’s long run tendency to change the constitution every time a new clique gets hold of power is one of the defining features of our political backwardness.

A look at the list of no less than 25 constitutions in the last 199 years tells the tale: when the chavistas took over in 1999 and wrote a new charter to suit their needs and to “clean house” in the institutions, they were doing pretty much the same things the puntofijistas had done 38 years earlier, in getting rid of the constitution that Pérez Jiménez had handed down in 1953 which just overturned the Adeco’s old 1947 constitution which they’d used to throw out López Contreras’s 1936 charter, which he had used to give himself a clean break from the constitutions of the Gómez era. And all the way through the 19th century we saw the same thing. Every Caudillo came in with his own proclama and wrote his own constitution – none of which outlived him.

In such circumstances, the little book we call a constitution is no such thing. A constitution is a framework for regulating competition for political power between various groups – it is the thing that endures, underlying the day-to-day struggle for power of various groups within society.

But if every new group that comes to power comes with its own “constitution”, those documents can’t play that role.

In fact, in Venezuela the real constitution is weirdly British – unwritten, but universally understood and accepted, built into the political DNA of our culture.

It’s a set of expectations about what is proper in the exercise of political power that includes all kinds of unseemly crap that no one would have the stomach to actually write down on paper, but that nonetheless structures what we believe is the proper exercise of state power.

That real constitution includes, as one of its fundamental tenets, the belief that each new group that reaches political power has the right to write up a few noble-sounding platitutes into a little booklet, slap the words “Constitution of the Republic” on the cover, and use it as a legitimate excuse to purge their old regime opponents out of positions of power within the state.

If, for reasons of political expediency, the post-Chávez regime is forced to go down that path, we’ll have won the political battle, but we’ll have lost the war.

39 thoughts on “No More Constituyentes – Please!

    • Very good points. And I agree with Setty: it would definitely be interesting to see that unwritten constitution. I suspect it would be embarrasing but at the same time enlightening to see and discuss: our unwritten constitution would be some sort of credo from the most obscure times of Spain’s Middle Ages, a bit of the Caribs’ view towards the concept of “state” plus some strong Otomaco values.

    • Well, common law is written in courts small usually over the course of centuries. I duuno. It might be you want to ditch your common law, is that possible anywhere?

    • How about

      “Todos los dias sale un pendejo a la calle, el que lo agarre se lo queda”

      or, a principle like

      “Acelera que aun esta en amarillo” (half a sec. left)

      “Metete y empuja que aqui nadie respeta la cola”

      “Pasa por arriba! $&#%@”

      Such a constitution will sound a lot like the organization of the society in the Robert Sheckley story “Ticket to Tranai”, where our idealist travels to utopia to find out that the best state of things allows, with rules, for robbers to work legally, for beggars to work, pay taxes and have a day off, for govt. officials to shoot some citizens and for citizens to press a button that pressed enough times detonates an explosive medallion on the neck of said officials. Also, for your wife to be kept in the fridge and for divorce to be resolved only by the death of the husband. Also, for robots and other gadgets to be quite annoying and easy to destroy with a kick.

  1. You are absolutely correct that changing the rules with every alternating power defeats the purpose of having a constitution but aren’t there some things you would change like indefinite re-election? How would you handle those elements?

    • Indefinite re-election was introduced into the 1999 constitution unconstitutionally, since it had already been rejected by referendum during the same constitutional period. Ergo, a ruling by the supreme court could presumably remove it.

  2. Good point Q; but you forgot to mention what other readers are telling you: re-election. As Manuel Caballero has pointed out that, with the length of tenure, are the key issues in our constitutional history. Perhaps we should do as Hondurans did and put a n0-modify clause or-die in the next version.
    And as for constitutions go, Tejera París once said that Venezuela has had only one, perhaps two constitutions, since they are all (as you imply) fundamentally the same.

    • Yeah, that’s also a good point.

      Something that has baffled me is that in Venezuela I have never heard this simple thing:

      There is absolutely no presidential system with the possibility of indefinite reelection with the exception of these countries: Venezuela, Cuba, Iran and Surinam. You see the pattern. Nobody said very loudly when Chavistas and useful idiots were talking about the possibility of indefinite reelection in Europe that all those countries here with that possibility are countries with a Parliamentarian system, which is completely different kind of thing.

      You can’t have it both ways.
      The US changed the rules with Roosevelt, even if US presidents always had way less powers than presidents elsewhere, comparatively speaking.

  3. I totally agree that thinking about a new consituyente is counterproductive. As some mentioned in the comments to JC’s post, most of the current Chavistas will easily switch sides when they see the money is no longer in Chavez’ hands to give. I would add to that the fact that this current constitution concentrates lots of power in the executive branch will make a little easier dealing with a chavista congress if they still remain loyal to their leader (difficult to believe).
    The new goverment will have to dedicate every ounce of effort into more practical things like the economy and the discussion about reforms of laws should happen when polarization has been defused. I believe that if the oppositions starts showing good results early on, even the most convinced chavistas will have to come to terms with the idea that there are other alternatives to Chavez.

  4. You’re gone for two months, and you come back to kick me in the nuts. Thanks!

    Seriously, I’m going to let this one marinate, but the crux of your argument seems to be “let’s not write another Constitution because writing Constitutions is what makes us backwards.” In other words, keep the Constitution, and progress will come.

    In the meantime, all we need to do is pray that President Maria Corina Machado can convince Luisa Estella Morales that privatizing Cantv again is perfectly compatible with the Socialist state. After all – we’ll have kept the Constitution! We’ll be civilized! There are no political differences that a meeting over tea and biscuits can’t overcome.

    • One of the things we need, Juan, is open debate. When I say “open debate” I do not mean “un clima de deseo de comprenderse, de colaboración y buena voluntad en el que se cree un contexto bla”. I mean present side by side your arguments to the big big public from Castilletes to the Esequibo.

      We have never had that. I see that even in Colombia or Brazil.
      What is it that Venezuelans can’t have a debate as in meaning 1) of most dictionaries? (no, not online, but the big players on a national arena)

    • With all due respect, Juan, there’s no reference to any ‘socialist state’ in the 1999 constitution.

    • Using the ends (progress) to justify the means (constitutional rewrite) is not a proper way to reply to someone alerting you to a wrong in the means; tell us why it’s right, independently of the ends.

    • “There is, however, a strong argument to be made against a Constitutional Assembly. Many reasonable people will say that the problem is not with the Constitution but with the people implementing it. They will claim that the Constitution is fine, but that it has simply been violated.

      That may all well be true. But without the power of a Constitutional Assembly, removing the same people responsible for its violation will become close to impossible. And let’s not forget that a Constitutional Assembly doesn’t necessarily have to start from scratch, as many of the provisions in the 99 charter could, and probably would, stay in place.

      Furthermore, even if you accept the 99 Constitution – and its subsequent “reform – as close to being perfect, we have to ask ourselves: do we really believe Presidents should hold office for six years? Do we honestly believe it’s convenient to allow Presidents to be re-elected indefinitely? And do we really think that the current administrative division in the Caracas Metropolitan Area is conducive to effective governance?

      It’s premature to be making a serious case for a Constitutional Assembly. But it may be the right time to get used to the idea.”

    • Taking your quote one step at a time:

      You say nothing about what to do with the problem of the people *implementing* a CA.

      You also say nothing supporting your statement that without a CA it is close to impossible to remove those responsible for the violations to the constitution.

      Then you ask us not to forget that a CA wouldn’t need to start from scratch, in reply to what?

      Then you ask us to ask ourselves regarding terms, re-election limits, and administrative division in Caracas. Again, in reply to what?

      Then you say it’s the right time to get used to the idea of a CA. Why?

      The biggest question, however, is where’s the reply to Quico’s argument?

    • “You say nothing about what to do with the problem of the people *implementing* a CA.”

      What problem?

      “You also say nothing supporting your statement that without a CA it is close to impossible to remove those responsible for the violations to the constitution.”

      It’s really difficult to remove TSJ judges, not to mention that the Fiscal General and the new TSJ judges would be chosen by a chavista AN. That point should be obvious.

      “Then you ask us not to forget that a CA wouldn’t need to start from scratch, in reply to what?”

      In reply to the fear that we would end up with a brand new Constitution. We could use the CA to simply modify the Constitution in the sticky points, but leave it relatively unchanged.

      “Then you ask us to ask ourselves regarding terms, re-election limits, and administrative division in Caracas. Again, in reply to what?”

      In reply to the fact that indefinite re-election is a bad thing, and that Caracas is poorly governed.

      “Then you say it’s the right time to get used to the idea of a CA. Why?”

      I say it *may* be the right time. Basically, because we need to plan ahead for after 2012, as well as get ready for 2012. We need to think how we are going to bring about change with the institutions and the FAN (that’s not an institution) completely under Chavez’s control.

      “The biggest question, however, is where’s the reply to Quico’s argument?”

      I said I was marinating it. But my knee-jerk reaction is the one that I expressed – that Quico is starting from the false premise that a Constitutional Assembly is somehow a bad thing because it makes us look uncivilized. My main point: we *are* uncivilized. If there is a way to live with the current institutions in place, fine. I just don’t see it, not at this point. What are we going to do, name Henry Rangel Silva Ambassador to the Vatican?

    • Juan Cristobal: “What problem?”

      The one you referred to in your quote: “Many reasonable people will say that the problem is not with the Constitution but with the people implementing it.”

      “It’s really difficult” down a notch from “close to impossible”, bringing us back to it being used as a support for the necessity of a CA. It should be obvious that that is not much of a reply to Quico’s argument that it is best to avoid a CA.

      “In reply to the fear that we would end up with a brand new Constitution.”

      How can it be a reply when it was in the original post?! I’ll take it you meant some kind of preemptive argument. Yet, here you brought it up a second time in reply to an argument that was not about that fear, but about a CA writing a new constitution, regardless of how similar or different to the old one.

      “In reply to the fact that indefinite re-election is a bad thing, and that Caracas is poorly governed.”

      Do you mean as support for the need to have a CA to change those kind of things?

      “I say it *may* be the right time.” Someone just told you that having a CA is not a good idea for reasons xyz, and you requote from the original post that you insist it may be the right time to think about one? I don’t see how that is a reply.

      “We need to think how we are going to bring about change with the institutions and the FAN (that’s not an institution) completely under Chavez’s control.” Good question. And your original post suggested a CA may be the way to deal with those. Believe me, I understand your having that position. But when Quico replies his reasons for avoiding a CA, and I also understand his position, I hope to see your counter, yet you kept leaving me wanting.

      “If there is a way to live with the current institutions in place, fine. I just don’t see it, not at this point.”

      Got it! That, at least to me, is a direct reply, and a terrific counter to Quico. Basically, you’re putting the onus on Quico to explain how we could possibly fix this mess up without a CA. I hope he finds the time to counter, because I think this is an immensely important topic you brought up. I’ll continue waiting eagerly for both sides.

  5. I will be extreme on this. Our hypothetical win on 2012 will be such an unstable/fragile win that sending the country into the constituency assembly route again will be extremely risky and could set the stage for a civil war. What we’ll do with the Maria Estela Moraleses and de Ragel Silvases of thw world? I would quote Alvaro Obregon’s saying during the Mexican Revolution “There is no General (or Justice) that can resist an artillery shell of 50.000 pesos”

  6. I think both you guys are going too fast and overlooking a couple of details:
    Writing a Constitution is one thing -making it “upheld” another.
    There is a huge gap between a “rule” and it’s “interpretation” (y’know, the whole Wittgenstein, Philosophical Investigations, thing) that leads to what Davidson, Quine and Richard Rorty called (roughly) the “Scheme-content” fallacy, or the idea that a *rule or law contains in and as of itself one unequivocal interpretation*.
    In layman’s terms, the *bending* of the Constitution is done, not by blatantly waiving laws or decrees, but simply by eroding the “context of interpretation” in order to re-interpret the law and make it “legal”.
    For exemple, beating people to a pulp in the middle of Caracas is obviously verboten, but if you manage to paint the context as a “provocation”, a “defense” or some tiré-par-les-cheveux historical struggle of the proletariat, you can actually give the guy a medal.
    Just look at the way some comenters attempted to bend interpretation in the Rangel Silva post in order to create a context where, if Pinochet or Videla declared loyalty to a political party, they would’ve cried murder, but when Rangel Silva vowes to protect the country from “traitors”, they see no problem in it because they try to extend the context of interpretation of the Constitution in order to include some inter-galactic crusade against evil that makes a highly diacronic statement “legitimate”.
    Of course, the major problem here is that the Institutions charged with protecting laws from radical, idiosincratic interpretations, aren’t functioning properly. But this doesn’t mean that re-writing the Constitution will make the TSJ, the AN and the Defensor del Pueblo suddenly discover their loyalty *to a country*, not a President.
    Which doesn’t mean leaving the Constitution the same guarantees anything at all, either.
    All this to say that what is highly backward here is that all these Institutions, and our Constitution, are built on allegiance *to a person or a party*, not to an idea, a Republic, for instance. That’s what screws everything up. When Sarkozy starts deporting gypsies, political discourse evolves around “betraying the values of the Republic” and his own party can pose objections, because their loyalty is, above and over everything, to said Republic.
    The case in Venezuela is much different, and the -never debated or studied-, “21st Century Socialism” is just a proxy that means doing what the President wants. There is no allegiance to “el pueblo” or even to core socialist values.
    That’s where it all goes haywire…

    • This is way over my head. My main concern is whether or not the Constitution’s rule that Presidential terms last for six years is really convenient or not, or that Congressional elections are held every five years, or that regional governments get their Situado Constitucional based on some hypothetical price of oil decided arbitrarily by the government. Those are real issues in the Constitution that could be spelled out more clearly, or are in dire need for change.

  7. Repeat from previous thread:
    What does the Constitution, or law in general say about the extreme Gerrymandering that Thugo has done, where there are some oppo districts with over twice the registered voters of some Chavista districts? Is this a case of Thugo and his minions following the law, exploiting the law, or simply ignoring the law [i.e., violating the law]?

    • Indeed, the Gerrymandering issue I think plays a big role in the constituyente. As I understood (and I may be wrong about this) the crazy districts distribution are a product of ignoring (breaking) the law. But there are certain issues about the way the National Assembly is elected that would need a constituyente to be changed. I don’t recall all the details because they are very technical, but this, with the indefinite reelection and presidency term I think more than justify a change in the constitution. The good thing is that since the reforms would be very specific, may a referendum would be sufficient and there is no need for a whole constituyente. Besides the points marked by Francisco, a constituyente frightens me. ¿what guarantee may we have that the thing will not backfire, and we’ll end up with a more rojita constitution? I mean, suppose we win the presidency and the military accepts this and so on, by the time a constituyente is called, Chavez or some red fraction like chavizmo-sin-chavez-or-whatever may become quiet popular. I don’t think that a constituyente is needed to change specific points if the number of articles are below certain percentage of the articles of the constitution. It’s just too dangerous.

      By the way, Francisco, what a we to hit back on JC! hahaha. Glad to see you back. Hope you are putting everything in order.

  8. Furthermore, even if you accept the 99 Constitution – and its subsequent “reform – as close to being perfect, we have to ask ourselves: do we really believe Presidents should hold office for six years? Do we honestly believe it’s convenient to allow Presidents to be re-elected indefinitely? And do we really think that the current administrative division in the Caracas Metropolitan Area is conducive to effective governance?

    My point, Juan, is that there is value in being seen to accept the legitimacy of underlying institutions that you didn’t participate in making – even if they’re flawed, as indeed they are – precisely because we didn’t participate in making them. If we want a truly clean break from the past, if we want to amend not the “librito” but the real, underlying, unwritten constitution, we’ll show our willingness to work within institutional structures that are imperfect, because we value the stability that comes from continuity.

    • Probably one of the key points of 1999 constitution is all the nominal direct democracy mechanisms. So, it is remarkably different, maybe only comparable with 1793 french constitution.

      Particularly, it is explicit that laws of this generation do not engages futur generations, so Constituant Assembly IS part of 1999 constitution explicit nmechanism, rectricting only to few elements: Republic, Democracy, etc. New Constituyente is still in continuity with 1999 constitution.

      Of course, you can consider that in our current social and political conditions there is not autonomous civil society, but we have all mechanisms for this: ways to restrict (abroge) every president’s order, law, mandates revocation, referenda, etc. Of course, open this way is a political suicide for our current political class (Chavistas or Opposition), which needs people’s apathy to continue to take profit of State structure.

  9. Since the 1961 version lasted (with only a couple modifications, and at least one was a pretty good one) for 38 years – and conceivably would still be in place, were it not for Mr. Hugo rediscovering the stupid caudillo tradition – would going back to that version be a reasonable idea? That would certainly require a Constituent Assembly, but in a way that avoids givign anyone ‘the right to write up a few noble-sounding platitutes into a little booklet, slap the words “Constitution of the Republic” on the cover, and use it as a legitimate excuse to purge their old regime opponents’.

    “If, for reasons of political expediency, the post-Chávez regime is forced to go down that path, we’ll have won the political battle, but we’ll have lost the war.”

    It seems like reverting to the old Constitution is fighting the war, but not by stooping to the Chavista level or revisionism, and therefore winning.

    I definitely agree with Kepler’s comment about open debate, but maybe that could focus on laws that need changing, rather than the Constitution. That would actually play into what Quico is supporting here – that while the administration de turno can change policy, the Constitution is supposed to be “the thing that endures.”

    • ‘the right to write up a few noble-sounding platitutes into a little booklet, slap the words “Constitution of the Republic” on the cover, and use it as a legitimate excuse to purge their old regime opponents’.

      Probably the best description of the 1999 Constitution you could make up in a few phrases. But, maybe it can be made to work, if you erase enough…

    • Agreed. The 99 Constitution is a document which enables abuse – and anyone in charge can abuse it. I disagree with giving any one person that much authority, even if it’s someone I very much like, because the next person might not be so agreeable. It’s a terrible precedent, and that’s a very strong argument for doing away with the current Constitution rather than trying to live with it.

      I believe that going back to the previous version would be a step in the right direction. I also think it’s much less of a can of worms than trying to write a whole new magna carta from scratch.

  10. Hmmm…I see what Quico’s point is, but in my mind any constitution that has several hundred artcles in it, is simply unmanageable. A constitution should not be a manual for a State, but a minimum set of constraints for the State to function legitimately. Also, to me the more articles in the damn book, the easier it is to bend the rules. So, I am for a minimalist constitution, but one with teeth.

    As for whether those in power obey the constituion, well…that’s an entirely different problem…

  11. Agree! Just make a couple of amendments and get on with it:

    1) Change the name back to República de Venezuela, no more of that Bolivarian bullshit
    2) No indefinite re-election. Never again.

  12. It’s a mixture of both IMO, but to be clear on one thing, there’s absolutely nothing British in the way rules are understood, executed or upheld in Venezuela.

    In an ideal world we could get things started, with art. 25 of the current constitution. However the bodies in charge of interpreting whether promoting a FARC collaborator to cuatrisoleado is kosher are beyond hope. So while there are self correcting mechanisms in the current constitution, there is not institutional framework that could adopt black letter law stances, as Vinz said.

    So let’s turn FT’s comeback post on its head: how would you solve it then?

  13. As always, I am in favor of an Erasing Assembly. A body with one function, delete.

    Anything not passing a stringent reality check and an applicability test, is to be deleted. Most of the “positive rights”, most of the “promotion of this and that”, out. Any stupidity like “impartial, timely and truthful” information, out.

    Anything giving a government agency the power to curtail activities and rights, or decree law without passing obligatorily through a Court, or at least being possible to challenge in Court, out.

    And oh, let’s cut down to size the office of President.

    • OK. You try to delete the right to “una vivienda digna” from the constitution and you will be giving the perfect alibi to radical chavismo to burn the country. That’s my point. For me, unapplicable unrealistic constitutional rights are stupid, but harmless.

    • Exactly right, Omar. It’s a legitimacy problem.

      Paradoxically, the way to overhaul the Deep Constitution is to leave the Shallow Constitution alone…

    • I am quite confident that chavismo will demonstrate, before it goes out, how much crap is involved, nay crammed, into such an statement as a “right to ” “a vivienda digna”.

      We need to be purged of bull, we Venezuelans.
      And it’s not harmless. It might be somewhat harmful in the hands of some non-authoritarian, populist dissemblers like the old Adecos.

      It is quite harmful in the hands of fully authoritarian, populist and demagogic scammers like the ones in power now.

      To put another example in play. Another, more basic one. Just because the State does policing, it does not mean you have the right NOT TO BE A VICTIM TO CRIME, or for permanent armed protection by policemen. Your 24 hour protection is your business, sir. Police might help and intervene if they are near. Suits against the government for lack of a policeman when you need one have historically failed. And the State is “supposed” to do it. But the expectation is unrealistic, unless a significative proportion of the population is given weapons and badges.

    • To further illustrate the levels of harm done by such “rights”:

      I said in another post, that if there is a need or a want somebody will try to fill it. It is not free, and either they will do it for money or they are very altruistic. But also,

      “Which they will not as long as they are under the shadow of legislation that can get them into court and jail if they don’t accomodate capricious demands in the form of “rights” they cannot grant. Because nobody wants to be made to look like opressors, particularly if they don’t opress anyone.”

      Take all the expropriated or heavily fined businesses in Venezuela. Particularly construction outfits recently. They have been made by the expropriators to be human rights’ violators, like the right to a “vivienda digna”. Never mind that the apartment owners have mostly come out against State interference. But their rights are being “violated”!

      Private schools have been made to be violators of the right to education, and this has been threatened against public universities if ever they go on strike now, declare they cannot operate anymore on scant budgets or expel the darlings who spend 15+ years in them.

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