Ready to Rumble: Referendum Facts & Law

Over and over again independent news outlets have had to
step in and clean up misstatements, omissions, and outright lies the mainstream
media reports about Venezuela and Hugo Chavez.

By Matt Halling
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Over and over again independent news outlets have had to
step in and clean up misstatements, omissions, and outright lies the mainstream
media reports about Venezuela and Hugo Chavez.  Now that the National
Assembly has officially approved
holding a new referendum on February, 15,
2009, we are certain to see members of the mainstream media revive the toxic
rhetoric that Chavez is a "strongman" who needs to be stood up to before he
"corruptly entrenches himself in power." 
Actually I'm cheating; the Washington Post already got the venom rolling
in a December, 2008 editorial making
exactly these claims
.      

What follows are five questions/answers about the new referendum
that will hopefully put future criticism of this very important vote into
proper perspective.

Question 1: Isn't
this just the same vote that failed in 2007?

This is not the
same as the 2007 proposal; it is dramatically different from the thing that
failed two years ago.  The 2007 constitutional reform
contained 69 amendments, whereas this proposal only has five and all relate to
a single issue: abolishing
term limits across elected offices (link in Spanish)
.  The first referendum was done in large
block votes, so it is impossible to know how Venezuelan voters felt about the
term limit proposal in isolation. 
It is also worth remembering that the 2007 reform failed just barely, 51%
to 49%
.

While the term limit amendment was one of the most high
profile changes, the negative vote may stem from other controversial pieces of
the 2007 proposal.  To name three
such changes voted on in the first referendum: i) President Chavez asked to
assume administrative control over the previously autonomous central bank, ii)
judicial oversight when declaring states of emergency was to be removed, and
iii) the 90 day maximum limit on states of emergency was to be removed and
personal rights and due process could have been suspended for as long as
"conditions persist that motivated that state of exception."  All these proposals were in the first
proposal, but not the new one.

Question #2: How
could the 2009 vote pass if term limits were polling at 33% late last year?

The Post's editorial from last month asserts that "both
history and the polls say he cannot win this referendum without force or
fraud."  As for history, the fact that
Chavez is avoiding many of 2007's most controversial proposals this time makes
last year's vote a lot less definitive than the Post seems willing to admit. 

As for the polls, they don't say for certain but the Post is
almost assuredly referring to a September, 2008 Econalitica
poll
that found only 33% of Venezuelan voters wanted to repeal term
limits.  Perhaps this poll dooms
the new proposal, but there are lots of ways to diminish the impact of the 33%
number.  First, as
noted by Econalitica director Michael Penfold
, the poll itself only
surveyed voters in 6 large urban areas, and not rural areas where the
president's popularity is greater. 
Second, the poll was done almost three months before this new proposal
got rolling and it is possible that some of those polled continued to associate
"term limit removal" with the entire 2007 reform package they were against for
other reasons.  Third, these polls
can change quickly in Venezuela; Wilpert reported how 60% of voters were
in favor of the 2007 reform
three months before it failed.  A recent Panorama poll cited here indicates that
public support has already shifted to 55.1% in favor of removing presidential
term limits.

I'm not so much disputing the method or result of the
September, 2008 poll so much as demonstrating that a victory for abolishing
term limits in 2009 would not be so improbable as to demonstrate electoral
fraud. 

Question #3: Does the
fact the government proposed this vote instead of the people mean
anything? 

Immediately following the first referendum, Chavez talked of
wanting
the people, not the government, to propose the second one
.  The new proposal started in the
National Assembly and not from a citizen's initiative; some could point to that
as evidence that Chavez is losing his grip on his country.

Don't buy it.  This
decision to have the vote start in the Assembly seems more out of expediency
than from necessity.  Under
articles 341-42 of the Venezuelan
Constitution
, amendments in Venezuela can legally come from the president,
the Assembly, or 15% of registered voters via a citizen's initiative.  In a show of symbolic support
for the amendment
, before their debate the Assembly was presented with
signatures from 4.5 million Venezuelans. 
4.5 million is more than 15% of Venezuela's
population
, never mind how large
a percentage of registered voters that represents.  It seems that a referendum could have come from a citizen's
initiative just as Chavez said he wanted; if Chavez even broke a promise here
it was in form, not substance.

Question #4: Is this
proposal legal under international law?

There is nothing
inherently illegal about abolishing term limits in international law.  The vote just has to be free, genuine,
and by universal suffrage under the International Covenant for
Civil and Political Rights
article 25(b) or the Inter-American
Convention of Human Rights
article 23(b).  A lot of people may remember groups like the UN, the
Inter-American Commission of Human Rights, and Human Rights Watch all
being unnerved
by the legal implications surrounding the 2007 reform (the IACHR concerns are
at ¶256 of that second link). However, all three groups based their criticism
on parts of the reform other than the term limit removal.  These groups almost exclusively focused
on the potential for human rights violations caused by increasing government
authority during states of emergency; provisions that, once again, are not in
the new proposal.

Question #5: Is this
proposal legal under Venezuelan law?

It
gets a little trickier as to whether another referendum may be held under the Venezuelan
Constitution.  Opposition
members are already saying
that two constitutional referenda in two years
on the same article is illegal.  Article 345 of the Venezuelan constitution says that, "A
revised constitutional reform initiative may not be submitted during the same
constitutional term of office of the National Assembly."  The Assembly's current term does not
end until elections in 2010, and this does look like a revision of the 2007
proposal, albeit a dramatic revision. 

Fortunately
for Chavez, an amendment to the Venezuelan constitution can be proposed before
2010, avoiding the above language. 
This oversimplifies things a little, but a reform is replacing parts of the Constitution, whereas an amendment just adds to or modifies an
existing article in the constitution. 
Under Article 340, you could propose amendments to the constitution
without having to wait until 2010, so long as you don't "fundamentally alter
the structure" of the original constitutional article.  

Here's
how the current constitutional article on presidential terms reads:

Article
230: The presidential term is six years. The President of the Republic may be
re-elected, immediately and once only, to an additional term.

The
underlined part is the language to be removed if the referendum passes.  Can you legally rewrite just that
part?  It seems to depend on
whether you think changing the underlined section alters the fundamental
structure or not.  You could
definitely argue the fundamental structure remains intact with a term limit
amendment.  After all, the
President's term is still 6 years and he/she can still be reelected; the only
thing being modified is how many times the reelection may happen.  Even if a Venezuelan court were to
reject that argument and say the underlined section is part of the article's
fundamental structure, the government or public could still propose a new
reform in 2010 once the new Assembly term starts.

It's a legal language dispute, and the legality of this new
proposal may have to be decided in court to officially interpret the
Constitutional provisions. 
Regardless of how this turns out, anyone who says this new proposal is clearly/blatantly/outrageously
illegal is being dishonest.  The
only questionable legality behind the proposal is very technical, and there's
nothing in international law violated by the referendum process up to this
point.

Last Thoughts:

I personally like term limits because they enable more
people to participate in the political process.  However, if the majority of people in Venezuela choose to
abolish term limits it hardly proves they are brainwashed, coerced, victims of some
diabolical proposal hatched by Hugo Chavez.  The 2009 referendum has several things in its favor that the
2007 reform didn't have, and the new proposal has a solid, if not perfect,
legal grounding.

Hopefully this discussion will help the reader see things
more clearly as the new referendum vote unfolds.  When the mainstream media starts lashing out with
predictable indignation of the hell that is Venezuela, the best way to know
what's really happening is to understand the whole story in context.  I guess it might be easier still if they
just reported the story and context in a balanced, accurate way, but then
people like me would have nothing left to write about.

Matt Halling is in his
final year of law school at University of California, Hastings and is the
author of A Revolution on Hold: Assessing the 2007 Constitutional Referendum
in Venezuela
, available here.  He can be reached at
matthalling@yahoo.com.