Latin America

A New Constitution Would Deepen Venezuela's Crisis

President Maduro's plan for a new assembly leaves a lot of room for manipulation.

I could crush this constitution.

Photographer: Federico Parra/AFP/Getty Images

With Venezuela on the brink of a constitutional crisis, President Nicolas Maduro has called for the election of a constituent assembly to draft a new constitution. It’s a terrible idea -- potentially more of a power grab than a genuine attempt to resolve the crisis through negotiation. It’s also a reminder that creating a new constitution shouldn’t be an excuse to stop the operation of an existing elected government. An orderly constitutional transition requires an orderly process.

The crisis is largely of Maduro’s making. In late March, the Venezuelan Supreme Court, dominated by Maduro supporters, claimed to assume all the powers of the democratically elected National Assembly.

QuickTake Venezuela's Revolution

A day later, the court reversed itself, in response to criticism that its order amounted to an effective coup. But the revised order still gave Maduro the power to make energy deals with outside companies without legislative approval, which is required by law.

Several weeks of protests have followed, and the National Assembly has told energy companies that any deal Maduro might make with them would be unlawful.

Maduro’s next move was to call for elections for a constituent assembly. Under Article 348 of the 1999 constitution drafted under the direction of Hugo Chavez, the president has the power to call for such an assembly.

And under the 1999 document, it would seem that a constituent assembly can take over all powers of government. Article 349 says that “the existing constituted authorities shall not be permitted to obstruct the Constituent Assembly in any way.”

Thus, Maduro’s idea would be for the newly elected body to sideline the National Assembly and govern on its own until it also writes a new constitution.

In theory, that sounds like it could be a solution to the conflict between the president and the assembly. There are several serious problems, however.

The first is that Maduro doesn’t seem to want a full and fair democratic election for the constituent assembly -- elections that might well give power to his opponents. Instead he called for “county by county” elections for half the members, and for the other half to be elected or chosen by specific groups of people defined broadly as, for example, the “working class,” “social movements” and recipients of social benefits.

If the county elections each yielded a single member of the new assembly, that wouldn’t represent the population proportionately, because rural counties have fewer citizens than urban ones. Presumably such an outcome would favor Maduro’s rural, agricultural base.

As for the selections based on social sectors, Maduro’s government would probably be able to gerrymander the results to favor their interests.

Beyond the potential unfairness of the elections, however, lies a deeper problem: The idea that a body elected to write a constitution should also assume the power to govern in the interim. Sometimes a version of this arrangement is inevitable. In the aftermath of true regime change, the transitional assembly may need to govern as it writes a new constitution.

In Tunisia, after the Arab Spring, the elected constituent assembly was the same body as the functioning national legislature. But in a clever and consequential move, the same assembly functioned on different days of the week as the governing body and as the drafting body. Some members preferred to focus on government and others on producing a constitution for the future. Remarkably, this split-personality assembly/legislature worked, and a compromise driven, liberal democratic constitution emerged.

But where there hasn’t been regime change, a constituent assembly shouldn’t govern. It should make rules for future governance. The intermingling of the two tasks is an invitation to abuse. In particular, it’s an invitation for the assembly to delay production of a constitutional draft. As long as no new draft has been produced, the constituent assembly continues to rule -- a flagrant conflict of interest that arguably posed a problem even in hypersuccessful Tunisia.

The world seems to get that Maduro’s proposal is highly problematic. The U.S. State Department said it viewed the proposal as a “step backward.” Brazil’s foreign minister went further, saying it amounted to a proposed coup.

That leaves the tricky question of how Venezuela ought to work its way out of the existing crisis. The best solution would be for Maduro to return to governance structures under the 1999 constitution, perhaps in exchange for an offer by the opposition to pause the street demonstrations until a working arrangement can be reached.

It’s worth remembering that the U.S. Congress under the Articles of Confederation kept functioning before, during and after the drafting of the U.S. Constitution. Calling for a new constitution shouldn’t include trashing the existing system in the interim. Maduro’s proposal may look constitutional under the 1999 document. But that doesn’t mean it follows best practices of constitutional order -- or that it’s genuinely democratic.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Stacey Shick at sshick@bloomberg.net

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