Tuesday, November 27, 2007


In the comment thread of the popular Venezuela News & Views blog I engaged in a discussion with a fellow blogger (Citizen Feathers) about the current political situation in Venezuela. After posting comments back and forth we were able to iron out our discrepancies and agree on everything except for one issue. I promised Feathers that I would address this issue in a separate comment but due to unforeseen circumstances I was not able to keep my word.

Even though late, I am herewith posting my comments on that issue not only because I gave Feathers my word but because I believe the issue is today more relevant than ever.

I believe that to answer the vote/not vote question we need to take into account two different considerations. One is the constitutional and legal implications of the decision and the other is the personal implications of that decision.


Let me start with the constitutional and legal implications.

The Bolivarian Constitution grants every citizen the right to vote. This right is also a prerogative because voting is not mandatory and, except for “referendums” (articles 72, 73 and 74) where a minimum number of voters is required, a majority vote is enough to approve the election of any government official. This means that, under the constitution, the lack of voter participation in a general election does not make an election less valid and/or illegal in any way.

The right to vote can be exercised by Venezuelans in basically two situations.
  1. To elect government officials in general elections
  2. In “Referendums”
    • To revoke the mandate of an elected government official (Article 72) (Requires participation of a minimum of 25% of voters)
    • To approve or repeal laws, measures and /or amendments and reforms to the Constitution (Article 73) (Requires participation of a minimum of 25% of voters)
    • To revoke laws passed by the National Assembly and/or the President (Article 74) (Requires the participation of a minimum of 40% of voters)
Articles 341 (4) and 344 mandate that constitutional amendments and reforms are subject to referendum and therefore the rules of article 73 apply in both cases meaning that the participation of 25% of the voters is required to approve the referendum.

General elections are partisan political processes were citizens are requested by politicians and/or political parties to endorse their candidacy as well as their political programs and/or ideology.

Referendums though are not intended to be partisan but instead are electoral processes were citizens are asked to vote based on their conscience and/or believe. Indeed, the votes on a referendum are basically votes on principles. They might have political, social and even economic implications but they are not partisan by nature.

I am not going to stress how important it is to vote for representatives in general elections even if they end up accounting for only a minority representation because that is milk that has already been spilled.

I will concentrate on analyzing the current “referendum” electoral process and separate what is legal, constitutional or not within this process.

In the current process the President, as per article 342 of the constitution, submitted an “initiative” of constitutional reform to the National Assembly for its discussion and approval.

The National Assembly, according to article 343 of the constitution, had two years to discuss and approve or not the Presidential constitutional reform “initiative”. In order to do so, the National Assembly had to comply with discussing the proposed articles in three separate sessions.

To understand why article 343 of the Bolivarian Constitution calls for three separate discussions of the constitutional reform “initiative” in three separate sessions of the National Assembly we need to understand first, what is the role of the National Assembly in the constitutional reform process?

The National Assembly has no power to change or add anything to a constitutional reform “initiative”. Once the “initiative” has been filed by either the President, 15% of the voters and even by the National Assembly itself every constitutional reform “initiative” has to follow the same process and it can not be altered in any way or form by the National Assembly.

The Bolivarian Constitution grants the right to the President, the people and the National Assembly to file constitutional reform “initiatives”. These “initiatives” are documents that have to be voted “as is” on a referendum with no changes whatsoever. Otherwise, the National Assembly would be the only one with the power to make a constitutional reform and that is not what the Bolivarian Constitution mandates.

So, why then the National Assembly has to discuss the constitutional reform “initiative” in three sessions?

Well, the first discussion is intended as a general and procedural discussion to establish if the constitutional reform “initiative” falls within the limited scope of what constitutes a reform under the constitution and if such has complied with the requirements set forth in the constitution. For example, the President by himself can not file a constitutional reform “initiative” unless it has been approved by the “council of ministers”. By the same token, any citizen and/or party can not file a constitutional reform “initiative” unless it is supported by at least 15% of the registered voters.

In the first discussion, the National Assembly would verify all the procedural aspects of the reform and to do so it might need to ask the executive branch to submit a copy of the minutes of the council of ministers where the “initiative” was approved or ask the CNE to verify the signatures of the voters filing the “initiative” and certify that they account for a minimum of 15% of all registered voters. The National Assembly would also need to certify that the “initiative” is not being submitted to “referendum” twice during the same constitutional period. After the procedural aspects have been verified and cleared by the National Assembly the constitutional reform “initiative” would be ready for a second discussion.

According to article 343 of the constitution the second discussion should be by Titles and Chapters as it may be the case. There is a reason for this as well. The Bolivarian Constitution is organized in Titles, Chapters, Sections, Articles, Items and Transitory Provisions.

Each Title sets the general scope of the matter that is to be legislated under that title and each of the Chapters and Sections provide more specific definitions within the scope set forth by title and thereon by each division and subdivision.

For example, Title V of the constitution legislates what is the scope, powers and responsibilities of the National Public Power. Title V has five Chapters, one for each branch of the National Public Power (Legislative, Executive, Judicial, Citizen and Electoral). Each Chapter in turn has a number of Sections that deal with specific matters concerning each branch of power.

The powers or attributions of the President are set forth in Title V, Chapter II Section II articles 236 and 237 of the constitution. All and any powers of the President are included exclusively in this section and can not be included anywhere else in the constitution. This provides a conceptual unity to every Title, Chapter and Section in the constitution and avoids the powers of the President to be scattered in multiple articles through out the constitutional text. Every single matter in the constitution is legislated in the same way and this is what constitutes the “structure of the constitution”.

The intent of the second discussion is therefore to make sure that the constitutional reform “initiative” does not modify, corrupt and/or change in any way the structure of the constitution.

Many and perhaps even most articles of the constitutional reform “initiative” submitted by the President to the National Assembly modify the structure of the constitution. For example, in the modified text of article 11 the President is granted the power to create “Special Military Regions anywhere in the territory and to appoint Special Authorities” by decree.

The problem is that article 11 is part of Title II, of the constitution that deals with the Geographical Space and Political Division and more specifically part of Chapter I of that title that deals exclusively with the Geographical Space. Granting new powers to the President in this article is an open violation and modification of the structure of the constitution since such powers can only be included in Title V, Chapter II, Section II of the constitution that deals with the attributions or powers of the President.

The National Assembly should have identified this and other violations and/or modifications to the structure of the constitution in the second discussion of the President’s constitutional reform “initiative”.

The Constitution mandates that the third discussion of the constitutional reform should be article by article. This discussion is intended to weed out any violations to the “Fundamental Principles” of the constitution.

For example, the modified text of article 230 provides for the unlimited re-election of the President. This modification is in open violation of Title I – Fundamental Principles - article 6 of the constitution and therefore such modification is in fact unconstitutional. There are many more articles in the President’s constitutional reform “initiative” that are unconstitutional and they should have been identified by the National Assembly during the mandated third discussion of the initiative.

After the three discussions the National Assembly has to either approve or reject the constitutional reform “initiative”. The National Assembly though has only the power to reject the reform under procedural grounds because under the constitution it has no power to decide over constitutional issues.

In order for the National Assembly to reject a constitutional reform “initiative” on constitutional grounds it would first have to submit its findings as well as the “initiative” to the Supreme Court on consultation and ask the court to issue an interpretation ruling - article 266 (6). If the ruling of the Supreme Court supports their findings then the National Assembly can reject the “initiative” on constitutional grounds.

The Supreme Court on the other hand can not nullify the constitutional reform “initiative” even if it finds that indeed it is unconstitutional because under the constitution the power to nullify can only be exercised “after the fact”. The Supreme Court can issue though an interpretation ruling that bounds every court of the judicial system should the decision of the National Assembly to reject the constitutional reform “initiative” be challenged in a court of law.

A reform of the constitution is a very delicate matter and that is why the constitutional reform process is a long and mostly legal endeavor. It was not intended to be taken lightly and in a rush. The framers of the constitution foresaw these conditions and therefore decided to give the National Assembly up to two years to approve or reject a constitutional reform “initiative”.

Some people, including my fellow blogger Citizen Feathers, argue that they do not believe they should vote because if the constitutional reform “initiative” is unconstitutional then the approval of the reform by the National Assembly would also be unconstitutional and their vote would only validate such unconstitutionality. This argument is not accurate though.

Given the fact that the National Assembly does not have the power to decide on constitutional matters and/or change or alter in anyway a constitutional reform “initiative” and, lacking an interpretation ruling from the Supreme Court for whatever reason, including a majority decision not to ask for a Supreme Court ruling, the National Assembly has no other alternative but to approve any constitutional reform “initiative” that has complied with the procedural process mandated by the constitution. This would be a valid, constitutional and legal decision even if the findings during the discussion process support the argument that the “initiative” is unconstitutional. In essence, the National Assembly has the power to approve a constitutional reform “initiative” that is clearly unconstitutional and subject it to a referendum.

The CNE on the other hand has no other choice but to comply with the decision of the National Assembly and organize a referendum. As for the Supreme Court, there is nothing the court can do until the “initiative” is approved by the voters and it is sanctioned by the President. Only when the unconstitutional reform is sanctioned by the President the reform becomes illegal and the Supreme Court has the power to move and nullify the reform.

This is what the Bolivarian Constitution mandates and though in the current circumstances it would seem unfair the fact is that these provisions were included by the framers of the constitution to protect the rights of the people and the democratic system of government.

In constitutional matters it is important to understand - What is unconstitutional? - What is illegal? - and, when an unconstitutional provision becomes illegal?

Having said this, it should be noted that in the current constitutional reform process the National Assembly has not followed the above mention procedures as mandated by the constitution and, by not doing so, has rendered the whole process both unconstitutional and illegal.

In the current process the National Assembly has not complied with discussing the President’s constitutional reform “initiative” in three separate sessions as mandated in article 343 of the constitution. The approval of the “initiative” is therefore unconstitutional and illegal.

Further, the National Assembly has illegally and unconstitutionally modified the Presidential constitutional reform “initiative” by introducing additional articles to such initiative without having the power to do so. The constitutional reform therefore is not anymore a Presidential “initiative” and it is not a National Assembly “initiative” either since it has not been properly filed and/or discussed as such. By doing so the National Assembly has arrogated on themselves powers that are only granted by the constitution to the members of a National Constituent Assembly.

Last but not least, the National assembly has made a mockery of the constitutional reform process by sponsoring a national debate that was a useless and futile travesty because under the constitution no change could be made to the President’s constitutional reform “initiative” once it was filed with the National Assembly. As a matter of fact, it is the President who should have encouraged that debate before sending his constitutional reform “initiative” to the National Assembly when changes could have been introduced.

Therefore, the first constitutional and legal conclusions that we can reach about the current constitutional reform process are the following:

  1. The President has complied with the constitution by submitting to the National Assembly a constitutional reform “initiative” approved in the council of ministers.
  2. The National Assembly undertook a legal but futile and useless national debate of that “initiative” making a mockery of the constitutional reform process.
  3. The National Assembly has illegally approved the President’s constitutional reform “initiative” without complying with the discussion of such in three separate sessions. This lack of due process makes the approval of the Presidential “initiative” not only unconstitutional but illegal as well.
  4. The National Assembly has illegally modified the original Presidential constitutional reform “initiative” by adding to it new provisions. By arrogating upon themselves powers that the constitution does not grant to the National Assembly representatives, they have rendered the approved constitutional reform both illegal and unconstitutional.
  5. Many of the modifications to the constitution included in the Presidential constitutional reform “initiative” are unconstitutional and hence the “initiative” should have been rejected by the National Assembly after requesting and obtaining an interpretation ruling from the Supreme Court.
  6. The Supreme Court and for that matter every other judge in the country have abrogated on their duty to comply with the constitution by not challenging the illegal and unconstitutional approval of the so called constitutional reform by the National Assembly.
  7. Even though under the constitution (articles 26 and 27) every citizen has the right to file a “recurso de amparo constitucional” (Habeas Corpus) in any Venezuelan court against the unconstitutional and illegal approval of the constitutional reform “initiative” by the National Assembly, not a single citizen and/or political party, to my knowledge, has filed a complaint.
I hate to say it but while Feathers was wrong in believing that the National Assembly could not legally approve a constitutional reform “initiative” that is clearly unconstitutional, she is certainly right when she says that this specific constitutional reform “initiative” approved by the National Assembly is illegal and unconstitutional. Therefore, her argument about validating the illegal reform with her vote does have merit and indeed makes sense. Not that I agree with her point of view but, in all fairness, it is a valid argument.

The ineptitude and ignorance with which the constitutional reform has been handled by the National Assembly is nothing short of mind boggling. All they had to do was discuss the initiative in three sessions, avoid consulting the Supreme Court on the constitutionality of the initiative, something they had the power to do, and approve the initiative with no modifications. That was it!

The reform “initiative” would still have been unconstitutional but the discussion and approval process as well as the referendum would have been legal and constitutional. From there on, it would have been up to the Supreme Court to challenge the reform on constitutional grounds once it had been sanctioned by the President but, given the composition of the court, the government certainly had the upper hand in avoiding that challenge.

Instead of this simple and clean violation of the constitution the National Assembly decided to mess up the process and now the government is tangled up with an illegal and unconstitutional reform “initiative”, an illegal and unconstitutional approval of the reform “initiative” by the National Assembly and, hence, an illegal and unconstitutional referendum.

By doing so, under article 139 of the Bolivarian Constitution, every single member of the National Assembly that participated in the illegal approval of the constitutional reform is personally liable under the law for abuse of power, deviation of power and violation of the constitution. In this case, not even article 199 will shield them from that responsibility.

By any account what has happened with this constitutional reform is absolutely amazing. So much so, that if I was the government I would be desperately supporting the NO vote to get me out of this gigantic constitutional and legal nightmare.

One thing is sure though, if the referendum takes place and the reform is approved, the government of Venezuela will not be able to call itself democratic anymore and will certainly loose whatever credibility it has left within the international community.

So, we are left only with the personal implications of the decision to vote or not to vote in the referendum.

As I mentioned before, the votes on referendums are votes of conscience and belief; they are not partisan. In this case though, the constitutional reform is set out to endanger individual freedoms and democracy in Venezuela and therefore voting in the referendum has also become a matter of principle.

In matters of principle the righteous have no other alternative but to take a stance. Not because they can change a given abusive condition or because they may be able to score a victory but because that is the essence of righteousness.

The righteous can not walk away or avoid raising their voice if a child is abused; if a person is tortured; if someone is denied of his rights because of race and/or gender; if a woman is abused; if someone is denied the right to worship his God and certainly, if someone’s right to freedom is taken away by force.

In all and every single case when matters of principle are at stake the righteous have the duty to take a stance because not doing so validates the abuse and/or the perception that abusing others is warranted or not worth denouncing depending on the circumstances.

The burden of the righteous is very heavy but their power is also immense. That power has been evident through out history when in some cases the righteous stance of one single individual has triggered events that have changed the course of history itself. That same inspiring power is what we identify in the righteous stance of the students in Venezuela.

In this ageless and on going confrontation between freedom and oppression tyrants and dictators have the upper hand because they do not have to follow rules. The righteous though have the inspiring power of their principles and that is what despots fear the most.

Those of us who, as me, happen to be religious have twice that burden since we are compelled as well to take a stance when matters of faith are at stake.

I sincerely believe that, on December 2, all Venezuelans who believe in freedom and democracy have no choice but to take a stance and vote regardless of what the outcome of the election is and even though there are strong indications that the election will be fraudulent. As I said before, in matters of principle you can not stand on the sidelines and avoid taking a stance if at all, to let the tyrant know that the will and determination of those who believe in freedom is not and will never be broken.

I wish all Venezuelans the best in these times of trial and hope that better times lie ahead for themselves, their families and their country.

I also want to thank my fellow blogger Feathers for being so stubborn, passionate and uncompromising when it comes to defending her points of view and beliefs. By doing so she encouraged me to write this post and made me realize that I also needed to be reminded of the above concepts.

I leave you with a quote that is credited to Edmund Burke; a quote I think is indeed self explanatory:

“The only thing necessary for the triumph of evil is for good men to do nothing.”

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