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Table of contents Preface Isaac Nahon-Serfaty, Ph.D.……………………………………………………………...2 Vindicating the Rule of Law and the Constitution in Venezuela: The Role of the Judiciary Nelson Dordelly Rosales, LL.D.………………………………………………………...4 Militarism of the 21st Century: the Dusk of Democracy Alfredo Lascoutx Ruiz, M.Sc.…………………………………………………………15 The New Path towards Totalitarianism: The Case of the Chavista Regime Ariel Segal, Ph.D.……………………………………………………………………...20 Regime Type and Political Transition in Venezuela: What Role Will the Armed Forces Play? Jorge Lazo-Cividanes, Ph.D.…………………………………………………………..23 About the authors…………………………………………………………………….27 About the HRREC & the CVDF…………………...........................................................................................28

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Preface

When the political scientist Javier Corrales published his paper in Foreign Policy entitled “Hugo Boss” in 2006, Hugo Chávez was at the peak of his reign. The autocratic populism that he was trying to impose upon Venezuelans – that according to Corrales redefined dictatorship in Latin America – seemed quite solid. The idea of an “eternal revolution” under the leadership of the beloved Comandante seemed then a real possibility. But Chávez died on March 5, 2013, victim of cancer, and the foundations of the regime were shaken. Nicolás Maduro, appointed by Chávez as his successor, won a closed and questioned election on April 13, 2013, by a tiny margin of 1.5%. One may think that the passing of Chávez and the appointment of the un-charismatic apparatchick Maduro weakened the “proceso” – a word used by chavistas to refer to the regime. The reality is more complex and nuanced that the black and white polarized discourse than the chavismo has nourished over the last 15 years.

Since his election in December 1998, Hugo Chávez faced the opposition of an important segment of the Venezuelan society that oscillated between 40 to 50% as reflected in the results of the elections and referenda that were celebrated in the country during the Comandante’s tenure. This opposition was manifested in various ways through the political parties, but mainly through varied expressions of the civil society, including the active participation of the students’ movement. A truly resistance process has countered the hegemonic ambitions of a regime that consistently has violated human rights, limited freedom of speech, and used violence to intimidate the protesters and their leaders. The February 2014 protests led by the students started in the capital Caracas and other cities, and spread throughout the country. The demonstrators faced the brutal repression of the regime that used the police/military apparatus and the paramilitary groups known as “colectivos” to crack down on the protest. Human Rights Watch and other international and national human rights organizations and activists denounced the Venezuelan Government for the killing of 42 persons during the protests, arbitrarily jailing thousands of students – (subjecting some of them to torture), and the imprisonment of political leaders and elected officials with disregard for the basic rules of due process of law.

The situation in Venezuela remains fluid and it is difficult to say how it will evolve. A worsening economical crisis marked by a high inflation rate, shortages of food, medicines, and all kinds of products, rampant criminal violence – with close to 25,000 murders in 2013, and the dismantlement of institutions under the control of a powerful executive foretell difficult times for the country. Can we foresee a political change in Venezuela? If so, what will that change mean? In order to explore some of these issues, the Human Rights Research and Education Centre (HRREC) of the University of Ottawa and the Canada Venezuela Democracy Forum (CVDF) organized the panel “Venezuela: Transition to Democracy?” on May 27, 2014. Four scholars attempted to answer this question from different perspectives, assessing the current regime and offering some

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insights about possible future developments. This publication gathers extended versions of the papers discussed in this forum*.

Dr. Nelson Dordelly Rosales, a lawyer and professor at the School of International Development Studies and Global Studies of the University of Ottawa, provided a meticulous analysis of the systematic deterioration of the rule of law in Venezuela under the “revolution”, a process that started with the dismantlement of the Constitutional order in 1999. Dr. Dordelly Rosales showed how the judiciary has been instrumentalized by the regime in order to consolidate its autocratic aims.

Mr. Alfredo Lascoutx Ruiz, a journalist and doctoral candidate at the School of Political Studies of the University of Ottawa, discussed the elements defining the militarism that has been growing in Venezuela under the cover of the so-called “socialism of the 21st century”. Mr. Lascoutx Ruiz argued that the militarization of all the institutions of the State, first under Chávez’s rule and now under Maduro’s presidency, follows what he calls a “Bolivarian formula” that combines a charismatic leader, the army, the “people” (“el pueblo”), the party and the resources of the petro-State.

Dr. Ariel Segal, an historian and professor at the Universidad Peruana de Ciencias Aplicadas (Lima, Peru), made the case to define the chavista experience as a new path towards totalitarianism. For Dr. Segal the current situation in Venezuela is one of neo-totalitarianism where fascism works more as methodology of power aimed at controlling society through violence and intimidation than as an ideology.

Finally, Dr. Jorge Lazo-Cividanes, a political scientist and professor at the School of Political Studies of the University of Ottawa, proposed an analytical framework in order to scrutinize the role of the Armed Forces in an eventual political transition in Venezuela. Looking at the power dynamics inherent to populism – concentration of power and its will for perpetuation – that is incompatible with the nature or essence of democracy (i.e. the separation and limitation of power), Dr. Lazo-Cividanes discussed the scenarios where the military eventually could play a pivotal role in the emergence of a new situation.

This publication is a small but specific contribution to the debate about the true nature of the chavista regime, particularly in relationship to the decay of democratic institutions and the respect of human rights. Raising and sharing critical voices in the context of a Canadian and North-American university hopefully will facilitate a better understanding of possible future developments in Venezuela, beyond the claims of the propaganda machine that acts both locally and internationally.

Isaac Nahon-Serfaty, Ph.D. Associate Professor and Member of the HRREC University of Ottawa                                                                                                                *  We would like to thank Mrs. Silvia Guimarey Iriarte for transcribing the verbatim of the video recording of the presentations. Her valuable contribution made this publication possible.  

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Vindicating the Rule of Law and the Constitution in Venezuela:

The Role of the Judiciary

Nelson Dordelly Rosales, LL.D. University of Ottawa

There is no doubt that in a democratic society, everyone, from the ordinary citizen to the highest public official, is subject to the law. In Venezuela, this fundamental principle was introduced in the first Constitution of 1811.1 Developed over the centuries, the idea that law is superior to any other ruler has been long a constant across Venezuelan constitutional history. This bedrock concept is fundamental upon which prosperous countries stand. It has not been an easy journey for this Latin American country to ingrain this bedrock principle. Subsequent wars between Caudillos hungry for power2, to the advances of liberation in the 1930s and the shaky beginning of democratization with the introduction of the first socially conscious Constitution in 1947 opened the door to the consolidation of the rule of law with the Constitution of 1961.3 Over twenty constitutions later, pressures from the masses demanding further social reforms permitted the entrenchment of numerous social, economic, and political rights in the Constitution of 1999.4 The Constitution has acquired progressively a greater significance among Venezuelans. As a result, the judiciary has been playing an important role in strengthening the respect for the law. In fact, the most important national controversies are brought to the Supreme Court for a final decision. However, trust and confidence in the Court has significantly diminished. As a consequence, it is affecting the implementation and enforcement of the rule of law.

The rule of law since the enactment of the Constitution of 1999

The rule of law has been progressively deteriorating in Venezuela after fifteen years of “revolution.” Everything began in December 1998, when the recently elected Government, claiming to represent the will of the people, called a Constituent Assembly to rewrite the Constitution. This decision challenged the Venezuelan Supreme Court, putting judges in the position of choosing between enforcing the written norms (that explicitly denied this possibility) or assuming an active role relating to the social facts that went beyond the legal text.

                                                                                                               1 Pablo Ruggeri Parra, La Supremacía de la Constitución y su Defensa (Caracas: Corte Federal y de Casación, 1941). 2 Napoleón Franceschi González, Caudillos y Caudillismo en la Historia de Venezuela: 1830-1930 (Caracas: Editorial Eximeo, 1979). 3 Ulises Picón Rivas, Indice Constitucional de Venezuela (Caracas, Editorial Élite, 1944). 4 Allan Brewer Carías, Las Constituciones de Venezuela (Caracas: Academia de Ciencias Políticas y Sociales, ACIEMPOL, 2008).

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The Supreme Court not only allowed the President to call the referendum, but also the procedures to elect the members of the Constituent Assembly.5 This endorsement let the President dismantle the Venezuelan constitutional system.6 In December 1999, Venezuelans with faith in a better future voted in a national referendum to approve one of the world’s longest, most comprehensive, and complex constitutions ever made.7 The 1999 Constitution declared a long and robust list of social rights that reshaped the relationship between the State and its citizens. However, with a more in-depth analysis, it is evident that there is an illusion of separation of powers. For example, the Venezuelan Constitution established an innovative group of 5 branches of government: executive, legislative, judicial, citizens, and electoral powers – seeking to avoid the concentration of State power in one branch. Paradoxically, inconsistencies in defining and delimiting the executive powers and responsibilities opened the way for an authoritarian regime.8 It has been assumed by the President, as the Head of State, that he has the responsibility to make wide range of decisions, compromising the future of the entire nation. The elimination of the bicameral system of Congress permitted the National Assembly to delegate in the office of the President responsibilities to legislate, which has allowed the Executive to rule by decree.9

The President has a tight control over the economy and political landscape. A strong Presidentialism places the emphasis on the person rather than the office itself, which in Venezuela has been translated as lack of respect for democratic norms and judicial institutions. According to Katherine Isbester, “The meshing of so many roles and functions in one person imbues the presidency with a mysticism and a legitimacy beyond the needs of democratic governance.”10 This phenomenon turned the President into a modern Caudillo.11   For example, the Government used its legislative powers to limit businesses’ profit margins to a maximum of 15 per cent to 30 per cent (depending upon the sector), with the threat of imprisonment for those who did not comply, including the possibility of nationalization of their businesses. Law is an essential instrument in striking a balance between the diminishing role of the private sector and the threat of increasingly powerful governments. Instead, the new measures adopted by the President shifted this balance to an absolute with the arbitrary use of power.

                                                                                                               5 Alfredo Arismendi, “Derecho Constitucional,” in Carlos Luis Carrillo Artiles, ed., Tendencias Actuales del Derecho Constitucional: Libro Homenaje al Profesor Alfredo Arismendi A. (Caracas: UCAB, 2008), at 150. 6Allan Brewer-Carías, La Constitución de 1999: Derecho Constitucional Venezolano (Caracas: Editorial Jurídica Venezolana, 2008). 7 Luis Martínez Hernández, “Reflexiones sobre el estado democrático, social, de derecho y de justicia en la Constitución de la República Bolivariana de Venezuela”, Tribunal Supremo de Justicia, Revista de Derecho, Vol. 11 (2010), Nº 33. 8 Allan Brewer-Carías, Dismantling Democracy in Venezuela: The Chávez Authoritarian Experiment (New York: Cambridge University Press, 2010). 9 Luis Fernando Angosto-Ferrandez, Democracy, revolution and geopolitics in Latin America: Venezuela and the International politics of discontent (New York: Routledge, 2014), at 49. 10 Katherine Isbester, The Paradox of Democracy in Latin America: Ten Country Studies of Division and Resilience (Toronto: University of Toronto Press, 2011), at 80. 11 Edgar Estévez González, La Guerra de los Caudillos (Caracas: Edit.CEC El Nacional, 2006).

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The rule of law provides not only an order by which society may thrive, but it sets the framework of rules for the organization of economic and political life. The 1999 Constitution entrenched social rights such as housing, health care, education, culture, minimum income, and many more other desirable goals all approved by popular referendum. Amartya Sen considers the rule of law as facilitating the capabilities of individuals and of communities to participate in defining what is just.12 The drafters of the new Constitution embraced a more inclusive and thoughtful concept of relations within and between the State and its people to respond to the enormous needs for justice.

Blueprinted as the Democratic Social State of Law and Justice, the narrow focus on individual rights alone has been consigned to the past as the Constitution accommodates a fairer and more just system for society as a whole.13 It is indeed undeniable that, in the words of the Constitution, a more inclusive concept of social justice pertains, yet that the Government has in practical terms expanded tremendously the limits on individuals to the detriment of the nation

The role of the judiciary

The rule of law is tightly linked to a fair application of norms. The Supreme Court of Justice with the responsibility to provide clear meaning to the Constitution plays an important role. The emphasis of the 1999 Constitution was to place the Court at centre-stage of the most dramatic debates of our times. Indeed, the mandate of the Court, as the constitutional text reads, is to advance the cause of social justice in hearing legal questions of fundamental importance. The responsibility given by the new constitutional text to the Supreme Court Judges is to provide substantive content concerning broad social and economic rights. The Court thereby became not only the ultimate interpreter of the Constitution, but also the one responsible for the enforceability of the social goals entrenched in it. In doing so, the Judges took on the primary role of guarantors of the social values.

The 1999 Constitution makes a distinction between law and social justice in its preamble. It affirms that social justice refers to the share and equal distribution of goods with the majority of society.14 This has been considered by the Judges as an explicit invitation to participate actively in a wide array of social issues. Certainly, the amplification of social rights in the 1999 Constitution, along with the written constitutional responsibility of the Supreme Court to ensure them, has influenced the already shifting interpretative approach of the Judges.

Constitutionally granted, the Judges have enough discretion when it comes to deciding constitutional issues. Although they must follow the Constitution to provide forthright answers on important issues, judges enjoy a wide margin of appreciation and personal judgement to adjust the interpretation of the constitutional text. This raises the                                                                                                                12 Amartya Sen, Development as Freedom (New York: Anchor Books, 2000). 13 Constitución de la República Bolivariana de Venezuela, Gaceta Oficial Nº 36.860 [30/12/1999], Sections 2 to 5. 14 Ibid.

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question of whether or not the Judges are indeed applying the law objectively, and if so, to what degree. It could be argued that to decide social constitutional issues the Judges need room for appreciation and flexibility.15 However, the reasoning behind landmark cases opens the debate regarding the role of the Judges in the application of so often vague and overlapping rights. Certainly, the Court’s attention towards social issues has resulted in the diminishment of basic principles. In fact, the more immediate and obvious problems are still without answers.

The protection of freedom is the foundation that underlies the rule of law. It is indispensable that judges are free from outside interference to make impartial decisions. In the case of Venezuela, the Supreme Court has chosen to subordinate constitutional principles in favour of ‘non-legal’ factors that jeopardize the correct administration of justice. An example of this is the case of Freedom of Expression. The cornerstone of a healthy and vibrant democratic society is the pluralism, tolerance, and development of the universal right to voice ideas, opinions, and receive and impart information. On May 27, 2006, RCTV (one of the oldest private broadcasters) had its concession revoked. The President, based on the new Telecommunications Act, had the power to force TV stations to broadcast his speeches live interrupting their programming without any compensation. The RCTV’s editorial line had been critical of the Government and on multiple occasions refused to broadcast the President’s speeches.

The President, addressing the nation, announced, “RCTV became a threat to the country, so I decided not to renew the license because it is my responsibility.”16 To justify this inexplicable decision the Court held that “revoking the licences does not lead to the violation of the constitutional right of freedom of expression because both RCTV and the general public can access a variety of medias, either to express their ideas and content or receive free and plural information.”17 This decision was an endorsement by the Court of the limitations imposed by the Government on freedom of expression. The Court held that judges need to be aware of the social, political, and economic environment in which they are making decisions, especially in cases like freedom of expression. However, personal bias or outside influence should not dictate the outcome of the Supreme Court’s decisions. The closure of RCTV was an obvious attempt to silence the emerging voices critical of the Government that now are erupting in the streets of Venezuela. In the current crisis, the Government has intensified its attack on the rights of citizens to organize and express themselves freely. Not only is there no coverage of the protests in the streets, but the Government has also kept tight control over any recording and documenting of protest activities. The media has been the focus of suppression. An informed population represents a threat to the Government’s power and control. Dismantling the independent media and jailing those who dare to dissent has been the constant strategy of the Government to avoid crumbling.

                                                                                                               15 Jeff King, Judging Social Rights (Cambridge University Press, 2012), at 97. 16 Radio Caracas Televisión, RCTV v. Artículo 192 Ley Organica de las Telecomumicaciones [11/07/2006] T.S.J., Sala Constitucional, Exp. N° 1381. 17 Ibid.

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The legitimacy and authority of the Supreme Court is open to debate. For example, in the 2006 case of Relección Presidencial, the Court had to decide the constitutionality of an amendment to Provision 230 of the Constitution. The possibility of continuous re-election of the President of the Republic was contrary to the fundamental democratic principle enunciated in Provision 6, according to which there will be always elections of new Presidents.

Citizens are the only ones able to change the Constitution. In fact, they have the last word to set the limit to those that represent them. Constitutional interpretation cannot be isolated or disconnected from society. The re-election as established in our constitutional system does not suppose a change in our democratic system. On the contrary, it re-affirms and reinforces the mechanism for participation set in a Social State of Law and Justice as blueprinted in the 1999 Constitution. Moreover, when in our society, needs are so enormous that constitutional changes become necessary to improve the conditions of citizens in lower socioeconomic status, constitutional provisions should only be at their service.18

In this important decision, the Supreme Court calls for a frank acknowledgment of the social, political, and economic factors to go as far as to adjudicate disputes using the Judges’ own conceptions of what is required by Venezuelan society. However, their decisions are conflicting with the true nature of the constitutional text, which questions the Court’s legitimacy. The satisfaction of the current political ideology of the Supreme Court demonstrates how choices among competing public values affect the end of the constitutional text. According to Venezuelan constitutional scholar Ruben Laguna Navas, “nowadays, the traditional thinking that the judicial function is just simply implementing the abstract rules to individual cases submitted to the Courts has been overcome. It is possible to affirm that jurisprudence brings up to date those abstract sets of rules, which imply an unquestionable enrichment of law.”19 Yet, the Supreme Court emphasis on policy-making, including the Judges’ own perspective on pursuing the Democratic Social State of Law and Justice, to realize what judges believe are Venezuela’s social goals, has changed the focus of constitutional interpretation. The reasoning behind the most important rulings of the Court indicates that the Judges are setting aside the written text of the Constitution to indulge in personal agendas. There is no doubt that political, social, and economic factors are part of the Judges’ decision-making process to adapt the constitutional text to current issues. This should not be in conflict with the bedrock Rule of Law Principle as an essential element of democratic government. The Rule of Law must prevail over the rule of man.

Venezuela is heading towards an institutional crisis. In spite of sitting on top of one of the world’s largest reserves of oil and at a time of extraordinarily high oil prices in the world’s markets, the Government has been unable to fulfill the expectations enshrined in the Constitution. A country with an economic potential that could, and should, exceed Brazil or Mexico, is struggling with the highest inflation rate in the region, shortages of

                                                                                                               18 Reeleción Presidencial [28/07/2006] T.S.J., Sala Constitucional, Exp. Nº 06-0737. 19 Ruben Laguna Navas, Sala Constitucional, Máxima Ultima Intérprete de la Constitución, supra (at note 394).

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essential goods, and high rates of violence.20 Venezuelans have had enough. Anti-government demonstrations have begun sweeping the nation, mostly led by college students who refuse to believe that the only hope they have for a better future is to leave the country. Protests nationwide are the expression of frustration with a government that under the flag of social justice has only brought an unprecedented suffering to its people. In response, public demonstrations have been banned and violent crackdowns began against those who dare to disobey. It has been documented that Government troops and paramilitary groups which support the Government have fired live ammunition on peaceful demonstrations, resulting to-date in forty-three (43) people killed, eight hundred and thirty-five (835) injured21, three thousand sixty two (3062) people arrested, and four hundred and forty four (444) still awaiting trial.22 In the Venezuelan Attorney-General’s Office, there are one hundred and sixty (160) cases, relating to the torture and abuse of students in prison, awaiting disposition.23 This is serious evidence of violations of human rights and fundamental freedoms, including the right to life, security of the person, personal integrity, liberty, and due process of law, as well as the prohibition of torture and cruel, inhuman, or degrading treatment. High-ranking Venezuelan Government officials have even acknowledged that Government security forces have committed human rights violations since the protests began on February 12, 2014.24 In the precious decade, democracy and respect for human rights had been part of Venezuela’s proud achievements. As a result, prosperity had grown to the benefit of the people. Democracy is not perfect. In fact, it requires a strong commitment from each sector of society to uphold the institutions that ensure respect and fairness for everyone. Instead, Venezuelans are facing one of the most heartrending crises, where young students appear defiant against a Government that seems to have forgotten its primary mandate, which is to bring prosperity and happiness to its people.

The Rule of Law has been overshadowed by the rule of fear. The Supreme Court of Venezuela, the ultimate interpreter of the nation’s Constitution, has set aside its responsibility to protect fundamental constitutional rights, to impose radical reformulations of the law in accordance with each Judge’s own personal ideological preferences. The ability of the Court to interpret the law does not justify undermining the people’s trust in the fundamental core of constitutional principles.

On April 24, 2014, in the case Gerardo Sanchez Chacon, the Court, in interpreting provision 68 of the Venezuelan Constitution that entrenches the right to protest, held:

Any concentration, demonstration or meeting that has not been granted approval by the relevant authority may lead to the police and other security forces, taking control in

                                                                                                               20 “Venezuela’s economy: Of oil and coconut water”, The Economist, available online at <http://econ.st/1mhkgeO> 21 Ministerio Publico, “Cifras de la Violencia de Protestas Opositoras”, Vol. 20 (2014), N.7. 22 “Resumen de Detenidos”, Foro Penal Venezolano, available online at <http://foropenal.com/> 23 Supra note 13 24 HRW, Punished for Protesting (New York: Human Rights Watch, 2014).

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order to preserve public order. This will ensure the right to freedom of movement and other constitutional rights.25

In this important constitutional ruling, the Court reshapes the right to protest and engage in peaceful assembly in Venezuela. In fact, this decision goes further and establishes that those who do not comply with the authorities may face criminal charges for their insubordination. This reckless decision has triggered more discontent with the Government and massive street protests. The criminalization of the right to protest condones a witch-hunt against opposition leaders, including Leopoldo Lopez, who surrendered himself to avoid more violence against his supporters.26 Indeed, when judges allow their personal views, political ideologies and moralizing ideas to influence their decisions, the Court loses legitimacy and authority. The judiciary has been increasingly losing its law-applying role to succumb dangerously to governmental arbitrariness. Students are the sole force standing against a Government that seems to have lost its grip on reality.   The need for improving governance is fundamental to sustain any socio-economic progress. This is not possible without a strong and independent judiciary that can defend the Constitution and ultimately the Rule of Law. A high level of corruption and authoritarian rule diminish the possibilities of participation, transparency, accountability, predictability, and consensus. These emerge as critical factors to sustain equality and inclusiveness, essential principles of social justice. In short, the Rule of Law is crucial for the prosperity of the country.

Venezuela’s deep crisis is the result of the crumbling judicial integrity, a key component in maintaining the Rule of Law. As Venezuelan citizens witness the economic failure of the current Government, incapable of providing access to basic necessities, such as food and medicine, Courts had the opportunity to make decisions that may be unpopular at the time but necessary to uphold the principle that no person or group, no matter how powerful or popular, is above the law. This required judges to act with great courage in ensuring that all actors of the political life respect the constitutional text. However, the Judges of the Supreme Court looked away while the Government nationalized domestic consumer goods industries disrespecting the constitutional rights of property and due process. At that time, they were called upon to stand firm against both the tide of public opinion and the power of the executive branch. Instead, it is regrettable to witness that under the premise of an erroneous idea of social justice, individual freedoms reached a danger zone, now affecting the country as whole.

Faith in democracy is one thing; faith in the wisdom of judges is quite another. If the Venezuelan Supreme Court had set aside personal opinions on the requirements of justice for the purposes of interpreting and applying the law, this crisis could have been prevented. Judges have serious responsibilities that while interpreting the Constitution recognize the implications of their decision to policy development. An independent and honourable judiciary means not only judges who decide cases on the basis of the law and

                                                                                                               25 Gerardo Sanchez Chacon [20/4/2014] T.S.J Sala Constitucional, Exp. Nº 14-0277. 26 BBC “Venezuela opposition leader Leopoldo Lopez on trial”, available online at <http://www.bbc.com/news/world-latin-america-29151975>

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not public opinion, but also with the vision of solving changing needs and concerns in a constantly evolving Venezuelan society. The Supreme Court judges can catalyze social change by respecting the purposes blue-printed in the constitutional text. Rights and freedoms are not just written words; they serve as guidance for the necessary transformation of the Venezuelan society. It is up to the Courts to bring what the new Constitution sets out to achieve, not just in word but also in reality. The current economic crisis could be the turning point for judges in Venezuela to stand finally in favour of dignity and freedom. Judges can facilitate the realization of constitutional rights by dictating in their rulings clear criteria to achieve a balance between social justice and individual rights. More importantly, the new dynamic role of the Supreme Court in terms of constitutional controversies gives judges a unique opportunity to hold accountable those government officials who are acting outside the law. If judges are to be the guardians of the Rule of Law, they must follow the written words of the constitutional text to bring rights and freedoms to life. Judges are entrusted with ultimately the most difficult decisions that can influence the future of the entire nation.

Constitutional solutions

Many wonder whether there is any solution to this crisis. The situation is very complex. The collapse of the Bolivarian Revolution is inevitable in view of the fact that Venezuela’s economy is worsening even more. Talking about solutions in this context sounds extremely optimistic, yet there is always the possibility to find them even in the darkest moments. In a close examination of the Constitution of 1999, it is possible to consider various mechanisms that that could offer solutions to this difficult situation. Since the constitutional text entrenched that the original constituent power rests within the people of Venezuela, it is up to the Venezuelan people to request the National Electoral Board to convene a National Constituent Assembly. This mechanism will allow voters to elect a body of representatives for the purpose of drafting a new Constitution. It sounds simple, yet it is more complicated. The initiative for calling a National Constituent Assembly may emanate from: the President of the Republic sitting with the Cabinet of Ministers; from the National Assembly, by a two-thirds vote of its members; from the Municipal Councils in open session, by a two-thirds vote of their members; and last by 15% of registered voters.27 However, contemporary experience with referenda in Venezuela does not encourage voters to sign in favour of calling a National Constituent Assembly. In August 2003 about 3 million signatures were brought to the National Electoral Board asking to activate a referendum against the President.28 As set in the Constitution, at midpoint of the presidential term, citizens may request a referendum asking if voters still support the President or not. The Board rejected the signatures based on certain technicalities. In record time, 4 million new signatures were presented to the National Electoral Board.29 Once again, the Board rejected them, but this time the

                                                                                                               27 Supra (note 8), Provision 348. 28 Alicia L. Carriquiry, “Election Forensics and the 2004 Venezuelan Presidential Recall Referendum as a Case Study”, Vol. 26 (2011), No 4, Statistical Science. 29 Ibid.

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President opened an inquiry about those who signed against him.30 The names of petitioners were posted online in what is well-known as the ‘Tascón List’.31 Petitioners appealed to the Supreme Court with the hope that the ultimate guarantor of the Constitution would uphold the Rule of Law. Yet, this was not the case.

The Supreme Court, in the case of Referendum Consultivo, combined politics, law and the Judges’ own views to interpret the requested provision. Certainly, the Constitution is an evolving document that requires from the Judges more than just a narrow view of the norms. It is the Court’s responsibility to provide objective guidelines in cases in which the text is vague or imprecise. In this regard, renowned legal scholar Roscoe Pound affirms, “law must be brought up to date and, specially, must come to recognize that justice entails not merely fair play between individuals, but fair play between social classes.”32 Nonetheless, the Supreme Court of Venezuela is not really considering the social aspirations embedded in the constitutional text to adapt the Constitution to new and difficult cases. Instead, as seen in this case, the Judges are reaching their conclusions by merely rationalizing their own desired results. As the Court held:

Constitutional interpretation should be done according to the tradition and cultural analysis of the historic values of the Venezuelan people, instead of according to a supposed universal system of absolute principles, which cannot be placed above the political theory of the Constitution itself.33

The Court essentially argued that the interpretation of the Constitution cannot be done without considering the underlying political theory embedded in its text to accommodate the decision according to social interests. However, the Judges did not provide a clear test that explains exactly the meaning of the underlying political theory allegedly embedded in the constitutional text. Instead, the Judges exercising their discretion went as far as beyond rules and reason contrary with the country’s long democratic tradition to solve problems by votes, and dismissed the petitioners claim for a national referendum as it is set in the Constitution. Legal scholar Herman Oliphant asserts, “Judges are men and men respond to human situations. When the facts stimulating them to take action are studied from a particular and current point of view, which our present classification prevents, we acquire a new faith in stare decisis.”34 The faith that Venezuelans have in their judges of the Supreme Court has vanished. This makes it difficult for voters to support the idea of resorting again to an intricate mechanism for calling a National Constituent Assembly. Although a deep revision of the

                                                                                                               30 Bart Jones, Hugo!: The Hugo Chavez Story from Mud Hut to Perpetual Revolution (New Hampshire: Steerfoth Press, 2008), at 449. 31 Helen Murphy, “Chavez's Blacklist of Venezuelan Opposition Intimidates Voters”, Bloomberg, available online at <http://tinyurl.com/pongr52> 32 William W. Fisher III, ed., American Legal Realism (Oxford: Oxford University Press, 1993), at 7. 33 Re: Referendum Consultivo [22/01/2003] T.S.J., Sala Constitucional, Exp. N° 03-0017. 34 Herman Oliphant, “A Return to Stare Decisis”, (1928) 14 A.B.A J. 71, 75 at 6.1.

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1999 Constitution is needed, any solution must address the issue of establishing a Supreme Court of Justice that can uphold the Rule of Law.

A popular vote in a Referendum as set in the 1999 Constitution is a possible solution. Voters could request the National Electoral Board to call a referendum at the mid-term of the President’s mandate asking the population if they want him or her to stay in office or not. However, after the recent experience of the last attempt to request a referendum, it is quite unlikely that voters would be persuaded to try again. Another possible constitutional solution to this crisis is the possibility of the President’s resignation. With the world’s largest proven reserves of crude oil, Venezuela’s economy has been mismanaged to the point of raising the highest inflation rates in the Americas. For Standard & Poor it is expected that the inflation rate will rise to 65% by the end of 2014.35 Chronic shortages of basic goods, such as medicines and food, without mentioning rampant crime rates and a currency control that suffocates small businesses, all makes a compelling argument for drastic change. In particular, the current President’s approval ratings are dropping as fast as the inflation rate is rising.36 The people are waiting for solutions and if the President does not present a major shift on his policies his government could crumble under the pressure. Another possible constitutional mechanism that could be considered a solution to this dramatic crisis is the next year’s election of a new National Assembly. A massive turnout of voters tired of the Government’s economic mismanagement could alter the power forces inside the National Assembly. This could imply that new Members of Parliament could choose new judges of the Supreme Court, the National Electoral Board, Attorney General, and other important heads of various branches of government, which could open a new chapter for Venezuela’s democracy. This could only be possible if the persons chosen for these important branches of government act with integrity and responsibility at the time of delivering important decisions. Significant attention should be drawn to the appointment of new Judges of the Supreme Court. It is indispensable that new judges be held to the highest standards, that they have the difficult task to regain the confidence of the nation, as they are up to the task of upholding the Rule of Law and the Constitution. Each of these mechanisms carries advantage and disadvantage; no one could say that it is going to be an easy task to recuperate a country that has descended so deeply into a social, economic, and political crisis. Nonetheless, it has been part of Venezuela’s culture, tradition, and history to overcome difficult situations and achieve greatness.

Venezuela is going through one of the most difficult times in its contemporary history. It is almost impossible to predict the end of this crisis. Nevertheless, what is clear is that in moments like this, hope and confidence in building a better future depends of each of one of us. As Martin Luther King wrote, “We are caught in an inescapable network of mutuality; in a single garment of destiny. Whatever affects one directly

                                                                                                               35 “S&P Downgrades Venezuela on Worsening Economy”, Wall Street Journal, available online at http://online.wsj.com/articles/s-p-downgrades-venezuela-on-worsening-economy-1410907125 36 Anatoly Kurmanaev, “Maduro’s Rating Falls to 39% in Venezuela Poll on Economy”, Bloomberg, available online at <http://www.bloomberg.com/news/2014-08-21/maduro-s-rating-falls-to-39-in-venezuela-poll-on-economy.html>

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affects all indirectly.”37 Just by raising awareness of the situation in Venezuela to this globalized society, we are advancing change. So I remain optimistic about the future of this great nation.

The words of truth and compassion must always be heard.

                                                                                                               37 Martin Luther King, Jr., The Words of Martin  Luther  King  Jr.  (London:  Robson  Books,  1984).    

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Militarism of the 21st Century: the Dusk of Democracy

Alfredo Lascoutx Ruiz, M.Sc. University of Ottawa

Elements of context

Before describing what I consider the traits that define the militaristic character of the so-called “Bolivarian revolution”, it would be interesting first to present some elements of context about Venezuela, since not so many people in Canada are familiar with the history of Venezuela. This is particularly important because the propaganda machine of the current regime has sold to the world the idea that before the arrival of Chavez, Venezuela was under some kind of dictatorship. In fact, as I will try to show, Venezuela at present is experiencing a transition towards a totalitarian political system or pro-totalitarian regime. Based on the premise that until 1998 Venezuela enjoyed a formal democracy, the last fifteen years under the chavista regime represents the dismantling of the liberal democratic republic.

How can this process of destruction of the “old regime” be characterized? Does the Bolivarian revolution (as it claims) constitute a transition to a direct and participatory democracy? Is it an authoritarian democracy or does it represent a populist backlash disguised as a military regime? Are we witnessing an anti-democratic revolution?

The fact is that, after fifteen years of chavista political rule, scholars still do not know how to frame this regime. What is evident, though, is that this “revolution” and its leader, Hugo Chavez, have conveyed a virulent anti-capitalist, anti-US, anti-imperialist discourse, and have used the power of oil to strengthen its geopolitical position in the Caribbean region, and in Central America and South America.

But let’s start with a brief glimpse of Venezuela’s geographical, historical and social-economical context. I always tell people to look at the map to understand where Venezuela is located. The first thing that you notice is that Venezuela is in the north of South America, just in front of the Caribbean Sea, sharing borders with around fourteen different island nations in the Caribbean, and with the United States through some of their insular territories and Puerto Rico. Venezuela also has borders with some countries in Central America by the great Caribbean Basin. Looking south, the country has an Amazonian façade with borders with Brazil and Colombia, and towards the west it has its Andean façade. So, there is no doubt that strategically Venezuela holds a key position in the hemisphere, both by its geographical location and its immense oil reserves.

Venezuela has been a Republic since 1811. The Spanish-American wars of independence were a milestone in our history, something exploited by the chavista regime, as an epic deed led by Simon Bolivar that took Venezuelan armies all the way down to Peru and Bolivia to liberate South America from the Spanish Empire. From its

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independence until 1903, Venezuela experienced several armed rebellions and civil wars. This constant state of military and social disruption through one hundred and fifty years before the arrival of democracy caused the country to be governed by successive military oligarchies, either conservative or liberal, which claimed to be the heroes and heirs of the war of independence. This situation came to an end with the arrival of Juan Vicente Gomez who can be considered the last “old fashioned” dictator who managed to put an end to a century of civil wars. He installed a very powerful dictatorship and is considered the founder of the modern Venezuelan army.

After Gomez the country lived under transitional military governments (1935-1945) led by two generals, López Contreras and Medina Angarita. These rulers prepared the way for democracy. They were followed by a short-lived transitional civilian government that was overthrown by the last openly military dictatorship under another general, Marcos Perez Jimenez (1948-1958), a regime that could be placed in the context of the anti-communist national security doctrine during the Cold War.

From 1958 to 1998, the country experienced the Dawn and Dusk of the democratic period in which there were ups and downs. Venezuela achieved a full political democracy but failed somehow to achieve the social and economic democracy that it urgently needed. The oil was always a great advantage, but it also was a great corrupting factor. The first two governments of the democratic period were popular even though they faced various coup attempts coming both from the right wing and the left wing. A formal democracy advanced slowly, but it entered into a critical period that was marked by the social turmoil known as the Caracazo in 1989 and the two failed military coups led by Chavez and other officers in 1992.

Undoubtedly, oil wealth is the main element of modern Venezuela: during the last hundred years, for better or worse, oil has shaped the present reality of a petro-State. During the democratic governments in the 60’s and the 70’s, Venezuela made great progress by participating in the foundation of OPEC and nationalizing the petroleum industry that was controlled mainly by U.S. and British corporations. More recently, on the initiative of Chavez’s Government, Petro Caribe was founded in 2005 as an alliance that allows Caribbean and Central American countries to receive oil from Venezuela on very favourable financial terms. In 2007, the regime claimed to have “re-nationalized” the petroleum industry. The “re-nationalization” meant basically that Chinese, Russian and even Iranian corporations replaced some big Western players, such as ExxonMobil, which had joint ventures with PDVSA, the State-owned oil company.

The re-birth of militarism: power and oil

When we compare the current regime with the previous democratic period, the main difference that can be highlighted is the “revolutionary” policy of re-centralization against the process of decentralization promoted by democratic parties since 1984. From a political institutional perspective, the Venezuelan State has become a highly centralized apparatus of concentrated executive power dominating the legislative, judicial and

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electoral council. This policy is theoretically sustained by a conception of centralized socialist State economy, and reinforced by the high price prevailing in the oil industry.

Hugo Chavez took power in 1999 after being elected President in December 1998. In 2000 he launched the Plan Bolivar 2000 a platform to manage and implement social programmes under the command of the military. With this programme we begin to see a slow but constant shift in the distribution of power, which is closely linked to the control of the State wealth, meaning control over the oil revenue. Many Venezuelan researchers point to this as the beginning of a shift towards the militarization of society: For the first time in decades (since the 1958 dictatorship) one can see high military officers (Generals, Majors, Captains, Lieutenants) who are directly controlling government budgets, with enormous amounts of money, deciding how to allocate these resources into “revolutionary” State-sponsored social programmes which have no civil or public administrative accountability. The military has become the master of their policies and programmes creating a de facto parallel government. This state of affairs resonates with the thesis of Argentinean sociologist Norberto Ceresole (a close advisor to Hugo Chávez) who publicized his ideas about an endogenous Latin-American political system where the Caudillo (leader) has a direct connection with the pueblo (people) using the Armed Forces as his political and military party. It certainly resonates with the thesis of “Democratic Caesarism” (Cesarismo democrático) constructed by Venezuelan sociologist Vallenilla Lanz (1919) as an ideological apology for the dictatorships of Juan Vicente Gomez and Perez Jimenez.

This trend of militarization of State institutions continued under Chavez with the creation in 2007 of the National Reserve and the launch of the doctrine of the New Geometry of Power based on the idea of replacing the “old” bourgeois State with the Communal State: the geographical relocation of the politico-administrative structure of the country under a military perspective of “defensive zones” ruled by a communal structure of merged civil-military communes. This “new geometry”, that contains elements of a collectivist totalitarian view of society, connects the military with the development of the nation, and creates a “new geography” through the demarcation of “special areas” under the control of the Armed Force with its own industries and agriculture in the various military regions that do not correspond to the current geopolitical configuration of States and municipalities established in the Constitution.

How can this movement towards the militarization of society be characterized? Is this a form of militaristic populism? Is this a “patrimonialistic” State under the tutelage of a Military Republic? It’s not easy to define or characterize.

Nonetheless, there seems to be a “Bolivarian formula”: a charismatic leader, the army, the people, the party and the petro-State. Even after Chavez’s death, the leader continues to play a central role in the political discourse of the regime through the promotion of a cult of personality with religious undertones. As the military increase their control of key governmental positions, the “military discourse” pollutes the civil space, since every administrative decision and policy is labeled under military vocabulary as a “war”, a “battle”, a “campaign”.

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The regime has also created a nationwide indoctrination apparatus via the Bolivarian Ideology Training Center, spread all around the country, especially in civilian universities and colleges, as well as in numerous universities of the Armed Forces. This process also targets children by introducing in military education, in school curriculum and schoolbooks elements of the Bolivarian ideology presenting Chavez as the new father of the nation. This is reinforced by the hegemony of State-controlled media and the so-called “community media” (Television, Radio, Newspapers, and Magazines). The constant military discourse goes hand-in-hand with a class/hate speech against the political opposition, labeled as traitors, enemies, fascists, imperialists and so on. And finally, we should point out that this trend towards militarization appears also in the national budget: after an increase of 12 % in 2013, Venezuela doubled its military budget in 2014.

During the first semester of 2014 the National Assembly (the Venezuelan Parliament) under the control of the regime is considering passing a bill that will create the “revolutionary militia” as a way to merge the military and civil society. This could represent the materialization of a regime where a military vision of society and populist pseudo-socialist policies fuse together. By merging civil society into a militia, Venezuelans may stop being critical citizens and become obedient subjects of a neo-totalitarian society.

A provisional conclusion

It would seem at times that the so-called Bolivarian Revolution advances in a disorderly manner, at various levels, diverse spaces and speeds with social programmes of all sort that do not seem to make sense or enjoy coherence with a well-planned State policy. Conversely, one could see the government actions as a huge social engineering puzzle which (from 1998 to 2014) has slowly taken shape and is now, finally, allowing a clearer sense of where this political project is heading. In this context, the military element can give us a clue.

When looking at Venezuelan history, we find clearly the military paradigm that ruled the political imagination during the whole 19th Century and first half of the 20th Century. We can perform the simple calculations for the years of military rule against civil rule.

As concerns the regime itself, again, the all-mighty figure of the leader plays a unique role. As a soldier, Chavez understood well the sense of the Armed Forces within the popular imagination. I believe his great achievement is to convince the institutional Armed Forces of the thesis that in Venezuela the military are a cast with a manifest destiny to rule. Slowly, by various strategies, he showed the military that with his model he was re-creating a new and improved version of the various military oligarchies that have ruled Venezuela during the 19th and 20th Centuries. The Plan Bolivar 2000 was just an appetizer for the men in uniform to understand what this revolution could mean for them.

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Chavez the leader plays the conservative, nationalist role within the more traditional vision of populism. At the same time, this vision is not least “democratic”, because it includes theoretically the whole nation, all the people. The Venezuelan Armed Forces (not being elitist, but popular) are open to receive anyone who may want to share this revolutionary destiny. Under this alleged premise the National Militia would be a wider expression of the popular identification with the Armed Forces as well as an instrument for the people to ascend socially and economically. Thus, the concept of Civil-Military Union becomes a fundamental value of the Bolivarian political offer, transforms itself into a “revolutionary” action that may in fact transform Venezuelan society as a whole: It would transform the inner structure of society by transforming contesting citizens into obedient soldiers.

But Chavez (the eternal leader) and the Chavismo, have another feature that cannot be omitted. The “Bolivarian” aim for social justice as an ideological or programmatic proposal can be considered legitimate. But was Chavismo always socialist or communist? What matters here is the facet of the leader’s personality that connects with a sublime idea of revolution and of course with the utopic socialist movement that carries on promoting an ideal communist society but avoiding at the same time recognizing the dramas created by many such political experiences.

Assuming the political realities of the government slogan: Chavez Vive, la lucha sigue, we have a double feature Chavez: a leader who can communicate at the same time with military nationalism and with universal communism. This was a fundamental part of his arsenal and explains why the Bolivarian formula rests so heavily in the Leader and not the Party or even the State. For the leader, the party (PSUV) is (was) a necessary evil that has to be tamed, re-educated or guided. The State is the means by which the energy flows from ideas into action. But again, bureaucracy is a heavy load and like the party it has to be contained from political corruption and civil laziness. So, what is left (theoretically unpolluted) are the Bolivarian Armed Forces, the glorious liberator army of Bolivar. There, order and authority can be seen as opposite to the civilian liberty that has led nowhere.

Chavez’s passing certainly leaves a vacuum in the formula of the Bolivarian Revolution. The two sides that Chavez could merge within himself prove to be two different entities in the reality of the revolutionary process. Will the Armed Forces prevail over the rest of the groups that accompany the revolution? Or will the United Socialist Party of Venezuela guide the vanguard of the political agenda? No one can tell for sure. But what is possible is the permanence and radicalization of the strategy of militarization of Venezuelan society, guided as a pseudo religious command of the deceased Chavez, the eternal leader, who from a socialist heaven overseas the Venezuelan people, living the military utopia of communal villages within a Spartan democracy of a garrison State. There is, nevertheless, a final question. What will happen to the other half of the country who does not abide the collectivist military dream? Will there be any chance of dialogue between the military society and civil society? Or will the militarist communal project descend into a totalitarian militarist regime

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The New Path towards Totalitarianism:

The Case of the Chavista Regime

Ariel Segal, Ph.D. Universidad Peruana de Ciencias Aplicadas (Lima, Peru)

In my last visit to Venezuela, among many graffiti and pictures hanging in the streets with the picture of Hugo Chávez, there was one with a close-up of his eyes that reminded me of the “Big brother” of the famous George Orwell novel 1984. These eyes seemed to convey “I am watching you!” as evidence that the aim of the current regime in Venezuela is to become totalitarian. I will discuss if the regime is succeeding or not in reaching this goal, and in order to do so I will explain the meaning of some key terms, and explore the difference between ‘authoritarianism’ and ‘totalitarianism’.

In 2003 the political scientist Fareed Zakaria published a book titled The Future of Freedom: Illiberal Democracy at Home and Abroad arguing that liberal democracies are based on a three-part triangle: in one angle we have elections, in the other we have the separation of powers (related to the rule of law), and in the other one we have freedom. He distinguishes constitutional liberalism (liberal democracies) from illiberal democracies stating that the first definition includes the three angles of the triangle mentioned previously, but democracy can be still defined – as not liberal – as Athens did historically: by electing, cyclically, their leaders disregarding the rule of law (a legacy from the Roman Empire) and freedom to all members of society, unlike the ancient Greek city-States that had privileges for social classes over others. For Zakaria, in the countries in which there are elections, even if freedom is limited and the rule of law is apparent, we cannot define their regimes as dictatorships but “non-liberal democracies”. He provides the example of Putin´s Russia, Robert Mugabe´s Zimbabwe, Algeria under Bouteflika, and some ex-Soviet countries including Venezuela, pointing out that they are going in the wrong path from the economic point of view because they do not have free markets as opposed to other successful non-liberal democracies such as Singapore and Malaysia (claiming that these countries have succeeded in becoming very developed countries).

I certainly disagree with Zakaria’s definition, not only from an intellectual point of view but also from a more human, emotional perspective. To define ‘democracy’, of course, we have to take into account freedom, and we have to take into account the separation of powers. I think that is too “objective like”, and therefore too insensitive, to assess the countries where people suffer from lack of freedom and justice to qualify authoritarian regimes as democracies, even with the specification that these are “illiberal ones”. Yes, most of these countries have elections and you can turn on your TV and read the newspaper with some space for freedom (but the more they stay in power these rights are taken away until the State has total control of all institutions and the mass media). Yes, you can vote in Russia, Zimbabwe, Venezuela and other countries, but always their presidents or their “heirs” will remain in power (Putin or Medvedev with Putin as Prime Minister with special powers; or Mugabe or Chávez and later his “anointed one”,

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Maduro), but the opposition has no chance to win an election either because of lack of equal conditions for competition or because the electoral council which is a branch of the regime takes care of committing fraud. You cannot speak about democracy if there is a cult of personality like in these countries, therefore, in the best of cases we should call them authoritarian regimes with elections, but still authoritarian, or with the continuous decline of rights for their citizens, we have to call them by their nature: dictatorships or totalitarian States.

Some scholars have coined a new term: “neo-totalitarianism”. Can we use this term for the case of Venezuela? Can we equate its regime with the Nazi, the Soviet, and Cambodian, North Korean or Cuban ones? In principle, someone could say that the classical totalitarian regime would be unacceptable in our world today, but the reality is that this is not entirely true, since all kinds of regimes are tolerated and well alive, such as in the case of China, North Korea and Cuba. But a new kind of totalitarianism is born in our times, playing some rules to build-up a masquerade where they preserve some institutions, such as an electoral council to claim that they have periodic elections, or even some form of parliament, a judicial system, or an ombudsperson, to create the illusion that there is a separation of powers. They may close some TV networks that criticize the regime, but they allow the existence of a few newspapers that are read by a very tiny proportion of the population and they allow some people to write articles criticizing the regime. But if there is the tendency to create a one-party political system with a messianic leader trying to impose a single thought by dividing the citizens of his country between “patriots” (his followers) and “traitors” to the homeland (the opposition or anyone who differs with the policies of his government), we can speak of a kind of totalitarian regime, and not just a classical dictatorship.

How to define a new totalitarian regime? First, we see that these new regimes, as the old ones, rely on the charismatic leader who plays both a political and a messianic role. Second, the new regimes build strong political parties, but unlike the old totalitarian ones they tolerate the opposition parties until they become a real threat to the survival of the government. Then opposition parties are accused of conspiracy, violence, attempt to take total control of the State (exactly what these regimes do), and as we have seen in Venezuela, some of their leaders are sent to jail as in the case of Leopoldo López, or they are removed from parliament, as occurred to Maria Corina Machado. In reality, what we have seen here is not necessarily an ideology, but a methodology called Fascism.

Albeit in the first half of the 20th Century people associated fascism with Mussolini’s and Hitler’s regimes, if we study carefully the methodology of exercising power of Stalin´s Soviet Union, Mao Zedong in China and, later, the Pol Pot and post Second World War North Korean government, it is easy to identify many parallels among all these regimes. All of them, independently of their “right” or “left” ideologies, utilized similar methods of control and use of violence in order (in the name of a new society) to try to secure the total obedience and submission of their citizens. In the case of Chávez´s Venezuela, what bothers me is that people like me, who identify with the opposition, are called “fascist” by fascists who are using Fascism as a method to dominate society. But how does Fascism work today in this neo-totalitarian regime? First, the Chávez-Maduro

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regime maintains the electoral masquerade telling the international community that the secrecy of the vote is guaranteed but it uses different mechanisms to convey the idea to many people – especially State workers – that they know for whom you vote through the system of electronic voting. Second, they allow people to travel outside the country, but they control the access to currency or even limit the availability of plane tickets. Regarding the media and the freedom of speech, they will tolerate the existence of certain TV networks, radios or newspapers, but the regime will find ways to close them and weaken them if they are too critical. In Venezuela the regime restricts the access to Dollars to import paper, so newspapers are forced either to shut down or reduce drastically the number of pages. The Government allows people to protest in the streets but within certain limits, notably time. But they go even further, as the chavista regime has done recently, criminalizing the demonstrations, jailing the students, and even killing some of them with their paramilitary groups or torturing them. In that sense, the new totalitarian regimes are not that different from the traditional Latin-American dictatorships in Argentina, Uruguay, Paraguay, Chile, or even Cuba today.

For me the current situation in Venezuela is one of neo-totalitarianism with the tendency to a one-party system, a cult of personality, the use of violence through State institutions (police, army) but also fanatical paramilitary groups ready to act when citizens take to the streets; the criminalization of the opposition, the willingness to stay in power at any price and a use of discourse that brings to mind George Orwell´s pigs of Animal Farm: “All animals are equal, but some animals are more equal than others” or the slogan of 1984´s Big Brother: “War is peace. Freedom is slavery. Ignorance is strength.”

With the passing of Chavez, it is not clear how the situation may evolve. Maybe the country is going to pass through some kind of transition, but it is very difficult to say towards which end. I think that it could be very painful, and would need some kind of international help. Otherwise, I think, the country will become, gradually, a more neo-totalitarian regime.

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Regime Type and Political Transition in Venezuela: What Role Will the Armed Forces Play?

Jorge Lazo-Cividanes, Ph.D.

University of Ottawa

Today we are meeting here to talk about the prospects for a political transition in Venezuela. I would like, however, to start my intervention by discussing what is the nature of the political regime that has been established in Venezuela after the election of Hugo Chavez in 1998. In my view, to understand what Chavez represents as a political phenomenon and what kind of regime he created is critical to explore the potential issue of the current political crisis in this country. From a comparative perspective, Hugo Chavez epitomizes what we might call a “classical populist” experience in Latin America1, quite similar, indeed, to that of the former President of Argentina, General Juan Domingo Peron. Therefore, the main purpose of my intervention in this meeting is to describe and explain the ways in which the populist regime headed by Hugo Chavez undermined democracy in Venezuela and left a legacy of political tensions and economic contradictions that could lead the country toward a troublesome, and eventually violent, transition.

What factors make transitions happen? In the political science literature, institutional breakdowns are frequently associated with the existence of high levels of political polarization and the loss of legitimacy of those who govern the country2. These are the two factors on which I will focus my analysis. The Venezuelan Government defines itself as a democracy based on, first, its ability to maintain a high level of popular support and to win elections, and, second, its capacity to distribute the revenues of oil exports among those who are socially and economically more vulnerable or excluded. Indeed, since 1998, Hugo Chavez obtained a series of consecutive electoral wins that progressively led him and his political movement not just to take control of the government but also of the whole State apparatus. On the other hand, according to official numbers, his government was able to increase the per capita consumption in the country by more than 50%. Meanwhile, the level of unemployment, poverty, and inequality dropped. In this regard, it is worth mentioning that Hugo Chavez benefited from the collapse of the former political party system in Venezuela (that has created a political vacuum in the country) and the dramatic rise of international oil prices (from around 10 US$ per barrel in 1998 to over 90 US$ today). As a result, the Government had enough economic resources to finance Chavez's social programs (the misiones).

                                                                                                               1  Jorge  Lazo Cividanes, “Una vuelta al populismo clásico: el caso de Hugo Chávez”, Revista Venezolana de Ciencia Política (21, 2002) enero-junio.  2 A. Siaroff, Comparing Political Regimes: A Thematic Introduction to Comparative Politics (North York: University of Toronto Press, 2009); Juan J. Linz, Régimes totalitaires et autoritaires (Paris: Colin, 2006); and Eric Carlton, The State against the State. The Theory and Practice of the Coup d'Etat (Aldershot, England: Scholar Press, 1997).  

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Yet, when it comes to assessing the democratic nature of a society we should review the relations of power and the structure and functioning of the State. Accordingly, a democratic State is one in which there is a separation of powers (and thereby not subordination of the Judiciary to the Executive), a constitutional government (both in its origin and its performance), and a State bureaucracy – and I think this is a very important point in the case of Venezuela – that should be neutral, professional and competent. These are not, however, the only attributes for a democratic State. Unless there exist counter powers, such as a free press, an autonomous private sector, political parties representing a real alternative of government, and an organized civil society, the democracy will continue to be a mirage. Based on these criteria, the literature tends to classify the Venezuelan regime as an “electoral autocracy”. That is, a country in which the electoral competition is unfair and unreliable and there is no rule of law.3 Also, the socioeconomic pluralism is very limited (the government, using the State apparatus under its control, has the power to hamper or punish political dissent among the business class). Lastly, thanks to legal and constitutional changes, its electoral majorities and some costly political mistakes made by its opponents, Hugo Chavez achieved a hegemonic control over the State apparatus that brings to mind the fusion of the State and the party in classical totalitarian regimes4. I won’t say, of course, that we have here a totalitarian regime, but certainly there are some parallels that nourish the controversy (the historical populist experiences in Latin America were actually confronting similar complaints)5.

Three additional elements support the classification of Venezuelan's regime as an “electoral autocracy”. The first one deals with the charismatic nature of the political leadership of Hugo Chavez and his conspicuous ambition to stay in power for an unlimited period of time (a project aborted by his premature depart). Likewise, the regime promotes the so-called “Socialism of the 21st Century”, a somehow blurring ideology opposed to capitalism and political liberalism. Combined with a nationalist rhetoric, the official ideology adopted by State institutions tends to legitimize a large intervention of the State in the economy. Thereby, during 14 years his government promoted the creation of new State-owned enterprises, nationalized "strategic" sectors and business, and introduced many controls and regulations (prices, profit, currency exchange, dismissals, etc). Finally, the kind of civil-military relations boosted by the "Bolivarian Revolution" are worthy to be mentioned. Since his coming to power, Hugo Chavez encouraged an increasing involvement of the military in civilian government affairs. A large number of officials have been appointed at all levels of the State bureaucracy, including top positions in several ministries. The generals have now a constitutional prerogative that requires the Supreme Court to decide whether or not they can be prosecuted. Once retired, many former top officers were elected as State Governors under the political sponsorship of Hugo Chavez. Although in Venezuela the                                                                                                                3 For instance, Venezuela ranks at the bottom of the international Index of Rule of Law (2014) produced by the World Justice Project and 160 among 175 countries (2013) in the Corruption Perception Index of Transparency International. When asked if the State institutions are independent from the Executive branch, over 50% of Venezuelan citizens think they are not, according to the result of Venebarometro, May 2014. 4 L. Sturzo, "L'État totalitaire", in Bernard Bruneteau, Le totalitarisme : origines d'un concept, genèse d'un débat, 1930-1942 (Paris: Éditions du Cerf, 2010), pp. 255-263. 5 G. Hermet, Les populismes dans le monde. Une histoire sociologique XIX-XX siecle (Paris Foyard, 2001).

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military institution has historically enjoyed significant political leverage, after 15 years of ideological indoctrination and several internal purges, today it seems to be highly politicized6. Not surprisingly, many Venezuelans consider that the military has the right and the duty to intervene in the context of a political crisis. Both the opposition and the Government acknowledge that the Armed Forces are one of the most important power factors in the country and therefore try to gain their support. As a result, we might be in front of a military tutelage, especially after the death of Hugo Chavez.

In the meantime, the chavismo is a populist phenomenon. As such, it has emerged from the collapse of the previous political party system. Using a Manichean rhetoric or a moral dualism, populist leaders claim to represent the people's will and lead a crusade against the historical spoliation of the national wealth by the traditional elites (the oligarchy). All those who are not with the nationalist movement are considered “enemies” of the nation and progressively excluded from the public sphere. From this point of view, the populist regimes are hegemonic, although not revolutionary. Accordingly, such a populist phenomenon, as led by Hugo Chavez in Venezuela, polarizes the society and monopolizes the institutions of the State. Under populist rule, countries live in constant confrontation between the two opposed sides, both of which pretend to represent the true and legitimate democracy. The hegemonic tendencies of populist movements often bring about system disaffection among middle classes and institutional crisis (when the political crisis reaches its peak, military interventions frequently occur). This is particularly the case during economic downturns. On the one hand, the huge levels of polarization weaken the State institutions and erode the legitimacy of the regime. On the other hand, the end of the populist economic cycle (growth, bottleneck, crises and adjustment)7 undermines even more its legitimacy. In summary, regarding the historical experiences, we have every reason to believe that the power dynamics inherent to populism (concentration and perpetuation) are incompatible with the nature or essence of democracy (separation and limitation of powers).

Based on these considerations, what might be the prospects and scenarios for a political transition in Venezuela? I currently observe Venezuela's regime to be weak, basically due to: 1) the loss of the charismatic leadership provided by Chavez; 2) the lack of an electoral majority ensuring the ongoing control of the State institutions; and 3) the decline of fiscal capacity affecting the sustainability of heterodox economic policies and social programmes. All these factors have a corrosive effect on the unity and strength of the chavismo. It should not be forgotten that it is a movement crossed by different ideological tendencies and factions, unified by the vertical and uncontested leadership of Hugo Chavez. With a growing fiscal deficit, the highest inflation of the region, lack of investment, prices repressed, shortages of basic goods, the economy of the country barely works. The risk that social and political tensions escalate into a spiral of violence is real. Repression, in the other hand, represents an expensive and limited option for the regime (very damaging in terms of cohesion and legitimacy). Therefore, I see the transition in

                                                                                                               6.Control Ciudadano (2013), "Cuadernos de denuncia propaganda, militancia y proselitismo político de mandos militares venezolanos 2012-2013", Serie Cuadernos, 2, Caracas. 7.See R. Dornbush and S. Edwards (eds.), Macroeconomics of Populism in Latin America (Chicago: University of Chicago Press, 1991), pp. 1-11.

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Venezuela as almost inexorable, a transition that will lead the country to some intermediate point between the best (a negotiated and progressive opening of the State institutions backed by the Army), and the worst scenarios (a radical political confrontation amidst the collapse of the military unity).

 

   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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About the authors

Nelson Dordelly Rosales is a part-time professor in the School of International Development and Global Studies. He obtained his Doctorate of Laws (LL.D.) from the University of Ottawa, with his dissertation on Constitutional Jurisprudence in the Supreme Court of Venezuela. He also received his Master of Laws (LL.M.), from the University of Ottawa, and he holds a Master degree in Education (M.Ed.) from the University of Saskatchewan. Professor Dordelly Rosales obtained his Law degree (J.D.) and Bachelor degree (honours) in Education (B.Ed.) from the Universidad Católica Andrés Bello, Caracas, Venezuela. His research interests include the role of law to assist countries in Latin America as part of the design and implementation of policies and reforms for growth and prosperity.

Alfredo Lascoutx Ruiz is a Venezuelan journalist, environmental activist and social researcher. He is currently a PhD candidate at the School of Political Studies of the University of Ottawa (Canada). He holds an M.Sc. in Agrarian Development from the Iberoamerican Institute of Agrarian Reform, Universidad de Los Andes, Venezuela, and an M.Sc. in Political Science from the Centre of Political Studies for Latin America, Universidad de Los Andes, Venezuela.

Ariel Segal received his PhD in History from the University of Miami in 1997 and his Master’s in Jewish Studies from the Gratz College of Philadelphia in 1992. He has been a Professor of Political Communication and International Issues at the Pontificia Universidad Católica del Perú and the Universidad Peruana de Ciencias Aplicadas (UPC), in Lima. Since 1998 Dr. Segal has been an international analyst for the BBC Network and Kol Israel, The Voice of Israel. In Peru he works for the newspaper Peru21 and for various journals, magazines, and radio networks in the field of international affairs.

Jorge Lazo-Cividanes received his Ph.D. in Political Science from the University of Salamanca (Spain) in 2006. He also holds an M.Sc. from the University Simón Bolívar (Venezuela) and a B.A. from the Central University of Venezuela. From 2007 to 2010, Dr. Lazo-Cividanes held a post-doctoral fellowship at the University of Quebec in Montreal and currently teaches at the University of Ottawa. His research and teaching interests are primarily in the comparative politics of Latin America, including populism, ideology and political violence.

 

 

 

 

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The Human Rights Research and Education Centre (HRREC) is one of the oldest in Canada and North America. Created in 1981, it comprises researchers specialized in law, social sciences and the arts. The Centre strives to bring educators, researchers and students together with practitioners with a multi- and inter-disciplinary perspective, in order to promote the respect of human rights and explore the effective protection and enjoyment of such rights for everyone everywhere. The Centre places a particular emphasis on issues of public policy concerning peace, migration and immigration, health, environment, international trade and investment, poverty and vulnerable groups. The HRREC benefits from a bilingual and bijuridical environment. The Centre privileges research and education partnerships, with academics and civil society organizations. HRREC hosts numerous events such as academic conferences, exhibitions, meetings and workshops. The HRREC is fortunate to host several researchers and graduate students with deep expertise in the Americas region. The Centre believes in applying the same degree of attention to human rights issues in Canada and abroad and seeks to contribute to the enjoyment of human rights throughout the continent. In March 2014, the Centre supported the organization of an International Symposium entitled “Current Views on the Rule of Law, Transitional and Alternative Justice in Latin America: Shared Experiences". The proceedings of this conference will be published in 2015 in the Revue Québécoise de droit international.

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