Violence and constitutional change in the hands of temporary majorities: Venezuela, Bolivia, and Ecuador
The new constitutionalism as understood regarding some Latin American scenarios had a twofold dimension: on the one hand, it alluded to a pledge for a wider recognition of social and environmental rights in order to entrench more egalitarian societies and, on the other hand, was linked to normative proposals of procedure concerning constitutional enactment by promoting equal participation of the citizens in the discussion and decision on the new constitutional framework.
If people had to be equal within the society, they were supposed to participate equally as well in creating the rules that would govern such a society (Colon-Rios, 2012, p. 36; Martinez Dalmau, 2009, p. 267).The ideal, nevertheless, contrasted with what happened in places such as Venezuela, Bolivia, and Ecuador in which the socially and politically egalitarian discourse on the exercise of the constituent power covered an operation that confirmed the imposition of the power of one faction upon another. A temporary majority used its newly acquired power to hammer out a constitution: it shielded itself through the constitutional structure to safeguard its hegemony.
Indeed, President Hugo Chavez in Venezuela was not likely to respect the values of pluralism and inclusiveness when in 1999, shortly after he entered office, he called for elections to a Constituent Assembly grounded on the popular will expressed in a previous referendum which, although organized in violation of the amendment rule of the 1961 Venezuelan Constitution then in place, was authorized by the Venezuelan Supreme Court (Judgement No. 17 on the referendum for Convening Constituent Assembly of January 19, 1999, see Colon- Rios, 2020, p. 281). Hence, via reform of the electoral system, it was ensured that 95 per cent of the members elected in the Constituent Assembly were aligned with the President (Brewer-Canas, 2007, p.
72). The wide recognition of fundamental rights, the concern for indigenous communities, or the design of participative mechanisms for the citizenry entailed in the 1999 Venezuelan Constitution did not impede that the so-called “Bolivarians” used the constitution-making process to solidify their control of the State. They invoked plebiscitarian mass support in order to transform the constitutional structure, dismantled checks and balances, concentrated power in the figure of the President, and promoted the immediate reelection of the representatives loyal to the regime (Weyland, 2013, p. 22).As mentioned before, the successor of Chavez, President Maduro, sought to display an analogous operation by convening another Constituent Assembly in 2017 dominated by his acolytes. But Maduro's attempt (though it allowed him and his followers to retain rule while the opposition had obtained the majority of seats in the Parliament) did not repair the deep political division spreading across
Venezuelan society in a conflict that had no prospect of being solved and that became particularly acute when the President of the National Assembly, Juan Guaido, proclaimed himself Venezuelan President in January 2019, gaining some international recognition.
As had happened in Venezuela by the end ofthe nineties, with social disturbances preceding the constituent manoeuvre, also the immediate background of the constituent process in Bolivia, developed in the 2000s, was defined by the fight for natural resources between the elites and the indigenous people and labour groups, causing terrifying bloodbaths and leading to the resignation of two presidents, Sanchez de Lozada, and Mesa, before the election of Evo Morales (Massuger Sanchez Sandoval and Welp, 2016, p. 112). The accession of Morales to office was accompanied by the penetration into the State apparatus of Bolivian social segments traditionally excluded from the political decision-making processes. The new majority, however, did not miss the opportunity to redesign completely the Bolivian institutions through the approval of a new constitutional framework in order to ensure that the people that had just been included into the system were not going to be expelled again.
Such an operation required the transformation of what was called to be a temporary rule, into a permanent regime. If the Constitution was the product of a faction, other factions would not see any possibility to reach power again if they followed the rules of the Constitution. Accordingly, they would have more incentives to demolish the constitutional system by the force of facts than by trying to become a majority under the constitutional provisions conceived by their adversaries. That was exactly what happened when after a series of protests claiming some supposed irregularities in the general elections of October 2019 (which encompassed the doubts around the reelection of Morales as President), some elements of the army and the police changed sides and forced Morales to resign. Although the 2009 Bolivian Constitution remained nominally in force, and even though the Constitutional Court accepted the self-proclamation as President of Jeanine Anez, this political change did not occur through legal means. In October 2020, nevertheless, Morales' ally Luis Arce won by a landslide in the Bolivian presidential elections making predictable the return of the social cadres that had supported Morales in power and, thus, the maintenance, at least for a while, of the constitutional regime.One cannot say for sure that the drafting of the 2008 Ecuadorian Constitution was not dominated by the social disturbances that surrounded both the drafting of the Venezuelan Constitution in 1999, and that of the Bolivian Constitution, in 2009. But political convulsions had been taking place in Ecuador for more than ten years before the new Constitution was ratified by referendum on October 20, 2008. The constitutional regime that was in force when President Rafael Correa called for the gathering of the Constituent Assembly was that of 1998 which had been enacted as a consequence of the coup d'etat that had removed President Bucaram in 1997. Constitutional rupture, thus, had already been perpetrated by the 1998 Constitution, opening a lapse of time that witnessed profound economic, social, and institutional breakdowns, including the ruling and fall of
“New constitutionalism” & constituent power 191 five presidents between 1998 and 2006, and the Supreme Court cessation of activity for almost a year.
The temporary popular support expressed through the election of President Correa was used to promote, in the words of the President himself, a “radical, deep and fast change of the political, economic and social system” for which it was necessary to circumvent the constitutional provisions in force. In a similar way as in Venezuela and Bolivia, the constitutional barrier was surmounted by calling to “the People,” firstly, in a popular consultation on the convenience of setting up a Constituent Assembly (April 2007) that the 1998 Constitution did not contemplate and, secondly, in the elections to that Assembly (September 2007) in which Rafael Correa's political party, PAIS Alliance, won the majority of the 130 available seats.If the events that led to the 2008 approval of the Constitution, though on occasions turbulent, did not reach the same degree of violence that was present in the prelude of the constituent processes both in Venezuela and Bolivia, the enforcement of the Ecuadorian constitutional provisions had not been entirely specific: in the autumn of 2019, serious upheavals erupted as a response to President Moreno's economic initiatives which brought at least eight deaths (some organizations, such as the Confederation of Indigenous Nations, claimed that there were more than one hundred missing people) and around 1,500 injured. At any rate, violence has been present with more or less intensity in some stage of the three Latin American constituent experiments here described.
David Landau (2013a) in analyzing the constituent-making processes in Venezuela and Bolivia (he added the Egyptian constitutional drafting that followed the fall of Hosni Mubarak in February 2011) did not hesitate in qualifying such experiences as failures. Indeed, political developments would confirm Landau's predictions, and of the three regimes two, Bolivia and Egypt, collapsed through a coup d'etat and the third, Venezuela, as we have seen, is besieged by constant political, economic, and social crises.
But at least the constituent processes in Venezuela, Bolivia, and Egypt may be qualified as a success under the main perspective that might be taken into account when assessing the emergence of a new constitutional framework, namely, that a constitution was effectively passed. Landau warned about the danger of regime transitions where there was an absence of clearly defined and credible institutions and rules. He also pointed out the manipulation of temporary majorities to reshape the political system in an illiberal manner and denounced the use of constitutionalism to conceal undemocratic practices (see also Albert, 2019, p. 50). In such scenarios, the introduction of formal safeguards, such as a wider recognition of human rights, may be read as a “collateral effect” of the main goal pursued by the constituent agents: to entrench their recently obtained political hegemony. But the question is if any constitutional experience seeking to be completed (and differently as to what had happened with the abandonment of comprehensive constitutional changes in Iceland or in Ireland) did not require a quantum of harm. If a constitution is a decision on the allocation of power conveying the replacement of an elite by another through violent means, it is not surprising that, even under the coverage of the effusive language on democracy and fundamental rights, constitutionalachievement understood as the approval of an entirely new political system only emerges in a context of conflict and polarization, in which there are winners and losers.
After all, and aside from the disgraceful paths that had been taken in Venezuela, Bolivia, and Ecuador from 2019, their respective constituent processes had culminated, the rupture with the old regime had been consummated, and the new regimes, even with authoritarian features, had been consolidated. That was much more than experiences in some European democracies might say in spite of their overwhelming concern for the political participation of the people.
Maybe Carl Friedrich would agree in stating that processes such as the Icelandic or the Irish ones were not real manifestations of constituent power. According to Friedrich (1968, p. 130), constituent power must be “always employed to establish a constitution” and, thus, if a constitution is not established, that means that the exercise of the constituent power has been an illusion.In the previously mentioned comment by Landau on Venezuela and Bolivia he concludes that:
An important paradox of modern regime transition is that it might sometimes be necessary to preserve undemocratic enclaves in a regime in order to create a viable democracy.
(2013a, p. 980)
But such an observation might be applied to a more encompassing view of constitutional transitions: the failure of constitutional transformations in stable democracies without coercion maybe shows that the “preservation ofundemocratic enclaves” can be distinguished regarding all the constitution-making processes that effectively pass a constitution. If we associate the aforementioned allusion to the “undemocratic enclaves” with factual reality, power, and imposition, it is unavoidable not to come back to the idea according to which it is difficult to find the establishment of a new constitutional regime without the infringement of the no victims rule in some stage of its evolution, even in the case that such constitutional framework (whether in reality or as a facade) is devoted to preserving the rule of law, human rights, and democracy.