EDIT: I edited this post to correct some minor errors about six hours after posting it.
Maduro pressed the red button yesterday. His call for a “Constituent Assembly” is the nuclear option for a regime with no other options. In this do-or-die scenario, Maduro chose to do the unthinkable and call for a dissolution of the Fifth Republic and of the Constitution of the Bolivarian Republic of Venezuela.
In order to understand why the mechanism that Maduro called for yesterday is not a Constituent Assembly, it is important that we first understand what the Constituent Assembly actually is.
What is the Constituent Assembly?
The Constituent Assembly is a mechanism found in Chapter III of the Constitution of the Bolivarian Republic of Venezuela that gives the people of Venezuela the ultimate power to “transform the State” by creating new institutions, new legal frameworks and even a new Constitution. A Constituent Assembly has the power to completely re-define what kind of country Venezuela is.
Article 347 of the Constitution explains that the people of Venezuela have the power to create and re-create the country in whatever way they wish because they hold “the original constituent power”: that is, because the people hold all of the power that constitutes the state, they can use that power to re-constitute it. The article reads:
Article 347. The people of Venezuela hold the original constituent power. In the exercise of that power, they can convene for a National Constituent Assembly with the goal of transforming the State, creating a new judicial order and drafting a now Constitution.
Article 348 explains when a Constituent Assembly can be called for and by whom:
Article 348. The initiative for the call for a National Constituent Assembly can be made by the President of the Republic in the Council of Ministers; the National Assembly, through a two-thirds agreement by its members; the Municipal Councils through its councils through a two-thirds agreement by the same; and a fifteen percent vote from registered voters.
In calling for a “Constituent Assembly” yesterday, Maduro appears to have attempted to invoke a power he believes he holds through article 348. However, the article does not give the President unilateral power to make the call: the call can come from “the President of the Republic in the Council of Ministers“, which is the name given to every sitting minister as well as the vice president.
Another caveat is that article 348 says that the National Constituent Assembly can be called for by the President, the National Assembly, Municipal Councils, “and” a vote involving at least 15% of registered voters. The conjunction is important, because it suggests that even if the President were to call for a National Constituent Assembly, an election would have to be held in order to approve the call. Indeed, this is what happened the last time that Venezuela held a National Constituent Assembly, in 1999: Chavez suggested the idea, and a referendum vote took place.
EDIT: Article 348 also states that the these bodies can “call for” a National Constituent Assembly. Not “convene” one, as in Article 347, but rather “call for” one. This is because the ultimate power to convene a National Constituent Assembly lies with the people of Venezuela, not with the President.
Article 349 articulates the broad powers of the Constituent Assembly by stating that no one currently in government can question its final decisions, and sets the guidelines for how to make the new constitution official:
Article 349. The President of the Republic cannot object to the new Constitution.
The sitting branches of government cannot in any way impede the decisions of the Constituent Assembly.
The new Constitution will be promulgated in Gaceta Oficial de la Republica de Venezuela or in the Gaceta de la Asamblea Constituyente [i.e., “officially published”] .
Is what Maduro called for yesterday a National Constituent Assembly?
No. What Maduro called for yesterday is not a National Constituent Assembly as outlined in the Constitution. The process that Maduro called for yesterday does not have a name, because it does not exist anywhere in Venezuelan law, and calling it a National Constituent Assembly would be like calling a cat a dog: the two are simply not the same thing.
It is telling that in Maduro’s rambling announcement yesterday, he alternated between calling this mechanism “a Constituent Assembly” and “a Communal Constituent Assembly”. In fact, Maduro attached all of these words to the term “Constituent Assembly” during his speech yesterday: “citizen’s”, “worker’s”, “farmer’s”, “feminist”, “youth”, “student”, “Indigenous”, “profoundly worker’s”, “profoundly communal”.
The Constitution clear outlines only one type of Constituent Assembly: “National Constituent Assembly”, one without the qualifiers that Maduro has injected into the mechanism.
Alright–so what did Maduro actually call for yesterday?
Not a “National Constituent Assembly”. That is the point that I want to drive home. Again, what Maduro called for yesterday does not exist anywhere in Venezuelan law. While the dust is still settling on the announcement, it looks like the term that the regime is using to describe this is “Communal Constituent Assembly”, so we can call it that.
What exactly is a “Communal Constituent Assembly”?
No one knows for sure because no such thing exists either in the Constitution or in legal precedent. This makes the task of describing the Communal Constituent Assembly (CCA) difficult. However, we can take pieces of Maduro’s particularly disjointed announcement yesterday to piece together a rough description:
- The CCA will be made up of “approximately 500” members.
- “About 200-250” of those members will be directly appointed by the regime. These appointed members will come from community organizations and state-run workplaces.
- The other half of the assembly will be elected “by secret vote”, but the actual mechanism of this election is not yet known.
The fact that half (or likely just over half) of the CCA will be made up of people directly chosen by the regime guarantees that the results will benefit the regime. The PSUV would not have called for this process if it was not absolutely sure that it would get everything that it wants.
The CCA will most likely be tasked with drafting a new constitution. Maduro said yesterday that he wanted to “constitutionalize” all social programs so that “no one can get rid of them later”. He also said that the CCA would “modify the State”, and in particular “the rotten National Assembly”. The CCA will be tasked with creating an entirely new Venezuela.
What does this all mean?
The #1 rule of discussing Venezuela under Maduro is that at any given time no one knows what is happening or what is going to happen. That rule is specially true as the regime becomes more desperate to hang on to power.
We can make a general inference, however. Maduro and the PSUV have turned Venezuela into a repressive, brutal dictatorship over the last four years. The regime has cancelled elections, neutralized the legislative branch, and arbitrarily arrested thousands of people all in the name of remaining in power just a little longer.
All of this happened with a Constitution built with the explicit purpose of stopping these things from happening.
Think of what Maduro and the PSUV will be able to do with a custom-built constitution.
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