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Making Sense of Venezuela’s Constitutional Reform

The Venezuelan government's effort to create "21st century socialism" is moving ahead full-steam with the December 2nd constitutional reform referendum. While tensions and confusion about the reform are rising in Venezuela, it is important to realize that this reform will mean both less and more than most outside observers seem to think. That is, as usual, many pundits, such as from the Venezuelan opposition and from so-called international experts, are painting a picture of a Venezuela that is about to finally slip into "Castro-communism," a picture that could hardly be further from the truth and that has been falsely predicted for Chavez's entire presidency of now nine years. While there are negative or not-so-good aspects of the reform, which for the most part involve giving the president some more powers, the Venezuelan president, even after the reform, is still does not have as much institutional power as the U.S. president. On the other hand, in the process of focusing on the centralizing aspects of the reform, most observers willfully miss the ways in which the positive aspects of the upcoming reform have the potential to make Venezuelan political life more in tune with the interests of the country's mostly poor majority.
Shortly after President Hugo Chavez was reelected on December 6, 2006, he announced that a reform of the 1999 constitution would be one of the first tasks of his second full term as president. According to Chavez, the reform was to smooth the path for the creation of "Bolivarian" or "21st Century" socialism because the 1999 constitution was a product of a more moderate president and population.[1] On August 15 of this year, eight months after his reelection, Chavez presented his proposal to alter 33 articles of the constitution to the National Assembly (AN). The AN, according to the constitution, is allowed to discuss and revise the president's proposal over a period of two years. However, following a relatively rushed process that was accompanied by numerous public forums in all parts of the country, the AN added another 36 article changes and passed the entire proposal with the required two-thirds majority on November 2. The National Electoral Council then had 30 days to organize a national referendum on the proposal, which is now scheduled to take place on December 2nd.[2]

What the Reform is About

Chavez's constitutional reform project deepens policies in five main areas: participatory democracy, social inclusion, non-neoliberal (socialist?) economic development, politico-territorial reorganization, and stronger (or more effective?) central government. In addition, there are a few changes that don't fit into any of these categories, mainly because they don't do anything much, except adorn an already very progressive constitution. While the vast majority of these changes are progressive, in the sense that they deepen democracy and social inclusion, some can be considered regressive, in the sense that they weaken earlier achievements of the 1999 constitution. Also, one must recognize, just as some in the Chavez government have argued, that the reform represents a "transition" towards "21st century socialism," not its full implementation, which is still somewhat unclear. As such, it misses elements that progressives in many countries would consider essential for real socialism. Let us briefly review each of the above-mentioned aspects of the reform, before turning to the political context of the reform.

Deepening Participatory Democracy

In one of the greatest departures from the 1999 constitution, the reform proposal introduces a new level of government, the "popular power" (art. 136 of the reform proposal). This power is in addition to the municipal, state, and national powers of the political system. The popular power represents the "lowest" level of government, in that it is the organization of communities in forms of direct democracy. Because of this, the reform states, "The people are the depositories of sovereignty and exercise it directly via the popular power. This is not born of suffrage nor any election, but out of the condition of the human groups that are organized as the base of the population."

The opposition has tried to twist the meaning of this article, claiming that it lays the groundwork for dictatorship because it supposedly means that the authorities of the popular power are named from above, since they are not elected.[3] This, however, represents a willful misunderstanding, as the popular power is supposed to be the place where democracy is direct, that is, unmediated by elected representatives. This is not to say that there wouldn't be any elections at this level, but that those who are elected are not representatives, but are delegates of the community, who are to execute the community's decisions. Currently this popular power takes the form of the citizen assemblies and their communal councils. According to the reform, it would also take the form of worker, student, youth, elderly, women, etc. councils.

Another more sophisticated criticism has been that incorporating popular power, in the form of the various forms of popular organizations, into the state's structure implies a cooptation of civil society.[4] That is, citizens, by virtue of their activism, would be turned into civil servants. This would be true if all of civil society, in its totality, were to be absorbed into state structures. However, the reform limits the popular power to those councils or groups that are organized in accordance with the constitution and the law as being part of the popular power. In other words, rather than co-opting or absorbing all of civil society into the state, the reform proposes to provide more democratic and more consistent channels for citizen involvement in their self-governance. Civil society groups that are organized outside of these channels would still be free to organize and mobilize independently of the state.

However, since power is to be devolved from municipal, state, and national governments to the popular power (art. 168, 184, 264, 265, 279, 295), that is, to the communal and other councils, consistent channels for the use of this power must be established, which is done via the councils of the popular power. Many reform articles, for example, state that communities are to be involved in the co-management of businesses (art. 184), that municipalities must involve the popular power in their activities (art. 168), that they have a role in the nomination of members of the judicial, electoral, and citizen branches of government (art. 264, 265, 279, 295), and that they receive at least 5% of the national budget (art. 167) for their community projects.

Deepening Social and Political Inclusion

The second area that the constitutional reform deepens is social and political inclusion by giving all citizens the right to equal access to city resources ("right to the city," art. 18),[5] prohibiting discrimination based on sexual orientation and health condition (art. 21), including young people in the political process by lowering the voting age from 18 to 16 years (art. 64), requiring gender parity in candidacies for elected office (art. 64), protecting people from having their primary home expropriated due to bankruptcy (art. 82), introducing a social security fund for self- and informally employed Venezuelans (art. 87), guaranteeing free university education (art. 103),[6] recognizing and promoting the culture Venezuelans of African descent (art. 100), and giving university students parity in the election of university authorities (art. 109). These are all forms of social and political inclusion that, if realized, would place Venezuela at the forefront in the world in this regard.

Deepening Non-Capitalist (Socialist?) Economic Development

Next, the reform would move Venezuela further along a path of non-capitalist economic development.[7] That is, the effort to deepen non-capitalist and perhaps socialist development is centered on strengthening democratic control over the economy while weakening private sector control. For example, the central bank, which is normally under the sway of international financial institutions, would no longer be independent (art. 318, 320, 321) and the state may turn food producing and distributing businesses over to public or collective control in order to guarantee food security (art. 305). Also, the state oil company PDVSA will face stronger restrictions against privatization (art. 303).

The 1999 constitution had stated that PDVSA may not be privatized, but that its subsidiaries could. However, since PDVSA is a holding company that consists only of subsidiaries, it could, in theory, be entirely privatized by a government so inclined. The reform would prohibit the privatization of any national components of PDVSA. In other words, the often money-losing international subsidiaries of PDVSA could still be privatized at some point.

In addition to strengthening the state's involvement in the economy, the reform also strengthens the role of organized communities and of workers in the economy. For example, land reform is made more effective by allowing its beneficiaries (mostly cooperatives) to occupy land they have been granted before court challenges to the land redistribution are settled in court (art. 115). Until now, the land reform has often been hampered by land owners who would tie up the reform in court for many years, while the land would remain idle.

Reducing the workweek from 44 to 36 hours per week would give workers more power, vis-à-vis employers (art. 90).[8] Workers rights are also strengthened in that the reform opens the possibility for greater workplace self-management, via worker councils (art. 70, 136) and directives that publicly owned enterprises should involve greater self-management (184 no. 2).

Also, eliminating intellectual property while maintaining authors' rights to their creations, makes it more difficult for companies to profit from the creative work of others, while still protecting authors' rights over their productions (art. 98).

In addition to strengthening the position of the state and of workers relative to private capital, the reform would also strengthen the position of domestic business relative to international business because it removes the requirement that foreign companies be treated the same as national companies (art. 301).

Finally, and perhaps most controversially, the reform introduces a variety of new forms of property that move the notion or property away from purely individualistic conceptions (art. 115). These new forms are collective, social, and public property. Critics have pointed out that the differences are poorly defined, which is true.[9] Nonetheless, these different forms open up the possibility for the creation of socialist production enterprises, as the state has planned.[10]

Altogether, these forms of strengthening workers and of the state with regard to private capital definitely represent a move away from classical capitalism. The degree to which it represents 21st century socialism rather than social democracy or state socialism will depend on exactly which direction and how far these moves are taken in the laws that will work out the details of the constitutional mandates.

Developing a "New Geometry of Power"

The "New Geometry of Power" is perhaps one of the most misunderstood aspects of the constitutional reform. The opposition and the oppositional media consistently interpret it as a blatant effort to give President Chavez dictatorial power over states and municipalities. Indeed, the reform lends itself to this misreading because it says the president may designate a variety of new politico-geographic areas, such as federal territories, federal municipalities, federal cities, and "functional districts," and may name the respective authorities, without defining the power of these authorities or the function of these new territorial divisions (art. 16).

However, it is absurd to claim that the lack of a clear definition in this regard means that these new territorial divisions or the respective authorities would take power away from elected representatives if the reformed constitution does not say that their powers would be diminished in any way. Rather, the main purpose of this new geometry of power, according to government representatives, is to allow the president to designate national resources and presidential powers to particular areas. That is, the idea is to concentrate national attention and resources on specific areas, regardless of their existing politico-geographic boundaries, that are in need of such attention because of their poverty or their unused human or physical resources. Existing local power structures would remain untouched and unaffected by the designation of these areas, other than in the sense of receiving more national government attention. If anything, the reform implies that communal councils can form governing structures at the city-wide level, thereby moving power down to the communities, rather than up to the president.[11]

The real question in regard to this aspect of the reform is whether it is necessary to include the president's ability to designate federal territories in the constitutional reform at all, since they do not alter existing power structures. The president already has the power to focus national government attention on specific regions, which he has done via the nuclei of endogenous development. These are zones for special government attention that appear to be quite similar to those proposed in the constitutional reform, but which were created by presidential decree, without specific constitutional authorization. Including this aspect of the territorial reorganization in the reform thus appears to give additional authorization for something that the president can already do.

More importantly, though, for the reform and for a new geometry of power, is the president's and the National Assembly's new ability to re-organize municipal boundaries (art. 156 no. 11, 236 no. 3). While the politico-territorial division of states within the country's borders was always and still is a matter of a national law, with the reform the president appears to have the authority to re-organize the municipalities within the individual states, which used to have that power. This is an important change because Venezuela's municipalities are organized in a completely irrational manner that goes back as much as 200 years and has rarely been changed. The rationale for giving the president the power to reorganize these is that this needs to be done with a national-rather than parochial-vision in mind.

Strengthening Of the Presidency and the National Government

This last point, about the reform giving the president the power to reorganize municipal boundaries, touches on the larger issue of the reform slightly strengthening the president's powers in a variety of ways. Of course, the oppositional media (including the international pundits) consistently present this as "sweeping new powers," without backing this up. The most controversial changes in this regard include the removal of the two-term limit on serving as president (art. 230). However, over half of the heads of government in the world have "sweeping power," including some of the world's most respected democracies, such as France, Germany, Britain, and Italy.

Removing the limit on the number of reelections and extending the presidential term from six to seven years (art. 230) are meant to strengthen the presidency in order to carry out the long-term project of Venezuela's political and economic transformation from capitalism to socialism. In a way, opponents ought to be grateful that Chavez is not proposing a transition within his current presidential term (which lasts another five years), but a transition with a much longer time line, which would be far less traumatic and thus gives the opposition far more opportunities to reverse the project.

Extending Chavez's presidency (if reelected) is a mixed problem, though. On the one hand, Chavez supporters are right to say that it is more democratic if citizens are free to elect whomever they choose, as often as they choose, without artificial limitations. On the other hand, supporters of this principle ought to address the main reason such unlimited reelections are often prohibited, which is that presidents tend to accumulate power and can use the advantages of their office to make it more difficult for challengers to eventually win the presidency. This would mean placing strict restrictions on using the office of the president in one's presidential campaign. Currently limitations of this sort are rather limited in Venezuela.

The other controversial strengthening of the office of the president is the reform's toughening of states of emergency. According to the reform, the right to being informed would be suspended during a state of emergency, which implies that censorship may be used in such situations (art. 337). The rationale for this is that the April 2002 coup attempt was based on manipulating the media to fabricate events that ended up justifying the coup. A state of emergency, according to Chavez supporters, would have to take such a course of events into account. Contrary to most news reports, though, the state of emergency still includes the right to defense, to a trial, to communication, and not to be tortured. This is more than one can say for the current situation in the U.S., where the president has the authority to arrest people without due process, according to the recently passed Military Commissions Act.

Another area where the office of the president is being strengthened is in his ability to promote all military officers, not just high-ranking ones, as was previously the case (art. 236 no. 8). While this strengthens the president's control over the military and will probably increase the premium placed on loyalty to the president, it is not a "sweeping power" that will turn Venezuela into a dictatorship. Rather, this is something that ought to be within the purview of the military's commander in chief, even if it might not be the wisest way to handle promotions.

Another common criticism of the reform with regard to the president's "sweeping powers" is that the president may name as many vice-presidents (including regional ones) as he or she chooses (art. 236 no. 5). However, considering that the reform text does not say what these vice-presidents' powers would be, the only possible interpretation is that they have none except those that the president is already authorized to give to other members of his cabinet. Contrary to common perception, the powers of the vice-president thus cannot usurp the powers of any other elected official. In effect, vice-presidents would be nothing else than glorified ministers.

A change that has received little attention from the opposition, presumably because they support it, is that the reform makes citizen-initiated referenda more difficult by substantially increasing (by up to 100%) the signature requirements for launching such referenda (art. 71-74). The argument for this change is that frivolous referendum petitions must be prevented, especially since the referendum procedure is quite costly for the Venezuelan state. For example, few people noticed that none of the referendum petitions for members of the national assembly succeeded in 2004, even though dozens of petitions had been filed to recall pro-Chavez and opposition representatives. The signature collection and verification process costs millions of dollars and may be initiated on the whim of groups that claim they have the ability to collect the requisite signatures.

However, by increasing the signature requirements, in most cases more petition signatures will be needed to organize the referendum than votes will be needed for the referendum to pass. Such a situation reverses the logic of the signature collection process, which is merely supposed to indicate sufficient interest in a possible referendum, not represent a higher hurdle than the vote itself. In the end, the referendum process is thus significantly weakened (and the national government thus strengthened) in the name of greater efficiency, when other procedures might have been found that do not weaken the citizen-initiated referendum process as a whole.

Chavez has argued that he needs these relatively modest increased powers in order to defend the project against those who would oppose it by illegal means and in order to bring about more changes more effectively.[12] In other words, the strengthening of the president's office continues the slightly contradictory trajectory of the Chavez years, where greater democracy and greater citizen participation is introduced from the top, by the president. Strengthening the presidency thus, in this process, is also supposed to mean strengthening participatory democracy.

Unnecessary Changes

While the vast majority of proposed changes to the 1999 constitution indeed deepen participatory democracy and social inclusion, there are several changes that don't seem to add much other than nice words to the constitution. This is particularly the case with the terms "socialism" and "socialist" that the reform introduces in at least 11 of the reform articles, without ever defining what the term means (art. 16, 70, 112, 113, 158, 168, 184, 299, 300, 318, 321). Again, critics have attempted to interpret this as an effort to eliminate political pluralism, saying that using this term would mean that non-socialists would not be allowed to participate in the political system.[13] Such an interpretation is perhaps justified by the way the term was used in state socialist countries of the East Block, but there is no indication in the current constitution that this is a valid interpretation. As former education minister Aristobulo Isturiz points out,[14] Spain's constitution refers to its political system as a parliamentary monarchy, but this does not mean that those who are opposed to monarchies are not allowed to participate in Spain's political system. In other words, there is nothing in the reform that could limit Venezuela's explicitly pluralist political system (article 2) in any way.

Still, the inclusion of the term "socialist" in many parts of the referendum seems unnecessary, other than to give a label to something that has not been proven to deserve this label. Also, given that the meaning of the concept of socialism (unlike that of monarchy) is a hotly contested one, putting such a label on Venezuela's political and economic system opens it up to abuse. The danger that the label is confused with the ideal is quite real. After all, the state socialist countries of the East Block were labeled socialist, but that alone does not mean that they were. It seems far wiser to simply go about creating socialism in the sense of achieving liberty, equality, and social justice for all and then leave it to historians to decide whether the Venezuelan system deserves the label "socialist."

Another clearly unnecessary change is the inclusion of the social programs known as missions in the reform (art. 141). Given that the missions are operating just fine within given social framework, it is not clear at all why these need to be "legitimated" by being mentioned in the constitution.

Missing Changes

Despite the large number and large reach of the changes that the National Assembly and President Chavez are proposing, these changes fail to include issues that would go even further in creating socialism in Venezuela. For example, if socialism means true equality of opportunity, then it ought to include a woman's right to an abortion. This, though, is still not part of Venezuela's constitution, largely because there is no consensus within the government coalition in favor of such a change. Also, if socialism means real self-determination, then the reform should include much stronger provisions for self-management in all workplaces, both public and private. Next, if citizen participation is a key feature of 21st century socialism, then the power of communal councils should be extended to regional and even national levels, not just city-wide levels, to either compete with or displace representative democracy on these levels. Finally, if 21st century socialism means assuring a fair and sustainable production and distribution of goods and services that go beyond the distribution mechanisms of the market and of the state, then new forms of distribution and production need to be invented. The reform does not touch on this at all, though, presumably because such a change would require a completely new constitution, with the convocation of another constitutional assembly.

Prospects for the Reform

As the above review of the constitutional reform shows, the vast majority of changes would deepen participatory democracy, social inclusion, and non-capitalist economic development. Those relatively limited changes that strengthen the presidency, which Chavez and his supporters say are needed for pushing the other reforms even further, cannot, by any stretch of the imagination, be considered "sweeping new powers," as critics and the media like to call them. Although the necessity and wisdom of some of the changes are definitely debatable, the most controversial changes that strengthen the president's powers, such as eliminating limits on reelection, eliminating central bank autonomy, tightening control over the military, strengthening states of emergency, and increasing the president's ability to reorganize the politico-territorial divisions of Venezuela do not represent dictatorial powers - not even close.

The only reason Chavez appears to have dictatorial powers in the eyes of the opposition is because he and his supporters control all branches of government, which, indeed, makes "checks and balances" against presidential power more difficult. But whose fault is it that Chavez and his supporters control all five branches[15] of the Venezuelan state? Ultimately, the Venezuelan people and the opposition are responsible for this situation. The Venezuelan people are responsible because they are the ones who have voted in support of Chavez and his coalition parties over and over again, with overwhelming majorities (the last time with a near 2/3 majority of 63% of the vote in last year's presidential election). The opposition is responsible because they have consistently messed-up, boycotted, and otherwise obstructed the democratic process in Venezuela, thereby losing political credibility and popular support.

Despite this rather depressing state of affairs for the opposition, Chavez handed the opposition yet another chance to redeem itself when he launched the constitutional reform. Chavez says that this move was necessary for the deepening of Venezuela's socialist transformation, but, strictly speaking, many of these changes could have been made without the reform and those that could not, could have waited until 2012 for a more deliberate reform process than the one that took place.

By rushing the reform process Chavez presented the opposition with a nearly unprecedented opportunity to deal him a serious blow. Also, the rush in which the process was pushed forward opened him to criticism that the process was fundamentally flawed, which has become one of the main criticisms of the more moderate critics of the reform.[16] The loss of these former moderate Chavez supporters serves to strengthen the opposition. Also, the rush makes it easier for the opposition to paint the reform on its terms than on the government's terms. After all, it is always far easier to spread disinformation about something quite complex such as the reform than it is to spread serious and well-reasoned explanations about it while also correcting the disinformation.

This is why the reform appears to have suffered some setbacks in public opinion. Opposition-affiliated and government-affiliated opinion polls appear to be farther apart than they have ever been, compared to earlier electoral contests during the Chavez presidency. Part of the explanation for this divergence is, first and foremost, the confusion about the reform and the consequent unwillingness of a large segment of the population to commit to vote either for or against it. Abstention will thus be relatively high. And high abstention makes voting trends notoriously difficult to predict, which means that it is more likely that opinion polls will reflect the biases of their contractors.

In the end, it all boils down to which side mobilizes more supporters. That is, while it seems that the undecided lean against the reform, Chavez supporters tend to be far more enthusiastic about their support for their leader and thus far more easily mobilizable than the opposition is. In other words, if turnout is high, around 60 to 70%, it is likely that the vote will be very close, while if it is low, around 50% or less, the yes side will win.

Unfortunately, if the constitutional reform passes by a small margin, this increases the likelihood that the opposition will falsely claim fraud and will mobilize its more radical elements to launch a destabilization campaign. Such a claim, though, as many opposition supporters have begun to recognize,[17] will have no basis in reality because the electoral system has become more transparent and more verifiable than nearly any electoral system in the world. All eyes will be on Venezuela and only a sound defeat of false fraud claims, both nationally and internationally, will avert greater tensions in Venezuela's still deepening political process that has created more democracy and more social inclusion.