Earlier I had written on the proposed Constitutional reform as described by Constitutional lawyer Hermann Escarra from a document he had obtained from the Commission for Constitutional Reform. It is clear that the document was not a fake, but as described by Escarra’s brother, this was what was given to the autocrat and what we heard yesterday is what the autocrat wants to include and it has much of what I described earlier. Clearly, much of the changes in fundamental rights was not included, but most of the material on the political and organizational aspects is all in what Chavez will be proposing. You have to wonder if the National Assembly will then include some changes of its own as it discusses what the autocrat has suggested and surprise us by reviving what was in the original document.
I haven’t had the time to go through the whole document. I am not a lawyer and there are many times when a simple subtlety can mean or imply different things. Thus, I will try to avoid boring you with discussing too many details and wil just give my overall impression.
First of all, it is obvious to me that the path chosen by Chavez for modifying the current Constitution, that is, to propose the changes to the National Assembly and have these approved in a referendum, is a violation of the Constitution itself. Articles 324 to 346 of the current Constitution cover how Constitutional Reform will be carried out. It says very clear that this applies whenever (Art. 342) “..the structure and principles are not modified…”
If the structure and principles are modified, then Articles 347 to 349, which requires a Constituent assembly apply.
Chavez’ proposals last night do not modify the fundamental principles of the Venezuelan Constitution directly contained in teh first nine articles of the 2002 Constitution. However, the proposed changes do modify some of these principles. That is, the first nine articles are violated by changing articles later in the Constitution.
I can see at least three changes in the Constitution that modify the fundamental principles and would thus require a Constituent Assembly:
—Socialist State: Throughout the text, Venezuela is redefined as a “Socialist State” (Estado Socialista) a term used more than fifty times in Chavez’ proposal. However, the definition of what type of state Venezuela is, is contained in Article 2 of the Constitution and the word socialism is never used. In fact, that article simply describes Venezuela as “a social and democratic state of Law and Justice”. Thus redefining the State as a Socialist State, would need to have Art. 2 modified and thus a Constituent Assembly would have to be called, since it is part of the Fundamental Principles.
—Indefinite Reelection: Whether you call it indefinite or continuos, the ability of somebody to be elected without limits, contradicts Art. 6 of the Venezuelan Constitution which defines the Republic as having as system which provides “alternability”. That is Chavismo can always be in power, but Chavez can not perpetuate himself in power unless Art. 6 is modified and that article is a fundamental principle of the Venezuelan Constitution and would require a Constituent assembly to change it.
—Decentralization: Art. 4 of the Venezuelan Constitution defines the country as a federal decentralized state. However, the proposed political changes, including the provinces and the functional districts would destroy decentralization de facto, even if it does not say it explicitly. In other cases (I have not checked them all), such as healthcare, it explicitly removes decentralization. Once again, this would require a Constituent Assembly.
Thus, unless Chavez calls for the election of a Constituent Assembly, modifying the current Constitution by simple approval of the National Assembly would not be valid.
Some of you may be wondering why then did Chavze choose this path if he is so popular? Why not convoke to a Constituent Assembly and get it over with.
The answer is simple. The current National Assembly has no opposition figures and if an election were held the opposition would likely capture an important number (not a majority!) which would slow down and block some of the proposed changes.
Given my interests in economic matters I would also like to comment on some of the proposed changes on economic matters. First of all, there was no need to introduce much change on economic matters in the Constitution, most of the significant ones will be put in the Laws approved before July 2008 as part of the Enabling Bill.
But there are two things that will impact economic matters significantly: The removal of the autonomy of the Venezuelan Central Bank and the ability of the Government to confiscate anything just by declaring it of social utility and without the need for confiscation or a judicial decision.
Central Bank Independence has been the subject of many academic studies and while it may not be a perfect system, it has been shown to be better than a totally dependent institution subject to the whim and desires of the Executive branch. Central Banks are supposed to be technical institutions that try to attain a stable currency and minimize inflationary forces. By removing its autonomy, Venezuela will likely suffer even wilder swings of inflation and high volatility in the value of its currency. In fact, Chavez proposes to give the concept of “excess” international reserves Constitutional rank, which is one of the most absurd economic concepts invented by the revolution and will one day come to haunt all of us.
Finally, while the term private property is not removed from the Constitution, it becomes at times very diffuse and a lot of uncertainty is introduced . As noted before, the Government could declare any property of public utility without any compensation and unilaterally, thus severely limiting the concept of private property.
Finally and I may address these issues at some point, it would seem as if the whole point is to give Hugo Chavez more power, allow his indefinite reelection and all of that is accompanied by articles that will make the whole package attractive, most of which has no place in a Constitution.
All in all, few surprises in what is being proposed and I can’t help but close by reminding everyone of this: In 1999 Hugo Chavez used the argument that sovereignty resided in the people to call for a Constituent Assembly to change the Venezuelan Constitution. This became a beacon for Chavez political movement and it was included in the Constitution where it says “The original Constituent Power is deposited in the people”. Today, because it is simply inconvenient, such populist phrases have been essentially forgotten by the autocrat.