Venezuela: From Human Rights Transgressions to Constitutional Paradox
Humberto Briceno Leon[*]
In 1999, then-President Hugo Chávez introduced an anti-democratic socialist regime in Venezuela: socialism of the twenty-first century (SXXIC). While the SXXIC campaign comprised wide-ranging economic reforms, it also sought to replace “representative democracy” with an ostensibly “participatory democracy” through a Constituent Assembly. Chávez vested in the Constituent Assembly the power to abolish the prior democratic government institutions, dismiss government officials, and change the country’s Constitution. In late 1999, the Constituent Assembly did precisely that, enacting Venezuela’s 1999 Constitution, a development that enjoyed little support among Venezuelans at the time. Over the past two decades, Venezuelans have viewed the Constituent Assembly as a despotic tool used by the regime to assert its dictatorial power.
This article addresses a paradoxical phenomenon that has occurred in Venezuela’s constitutional system. The 1999 Constitution, the Constituent Assembly’s brainchild, replaced the democratic Constitution that had operated since 1961. A vast majority of the Venezuelan electorate refused to support the new Constitution. Today, however, the 1999 Constitution is widely endorsed. Venezuelans continue to believe in democracy despite SXXIC’s failure to foster electoral participation, its contribution to deteriorating human rights conditions, and its inability to improve living standards. The source of Venezuelans’ unwavering commitment to democracy, this article posits, is twofold: the country’s deeply rooted constitutional culture and the rejection of SXXIC as a result of its failures in advancing political, economic, and social policies.
II. Declining electoral participation since 1998: Venezuelans reject SXXIC.
After the introduction of SXXIC, electoral participation declined dramatically. Chávez’s first election in December 1998 marked the second highest abstention rate since 1958: 36.5 percent of eligible voters refrained from voting. This number increased to 43.69 percent during Chávez’s first re-election in 2000 – the highest abstention rate in any presidential election since 1958. At the same time, only 31.8 percent of the electorate was in favor of SXXIC.
Since Chávez’s first presidential election in 1998, Venezuela has had six formal elections on constitutional changes. Each election witnessed weak electoral turnout and low support for the SXXIC’s proposed constitutional changes. Around eleven million citizens were entitled to vote in each electoral process linked to the 1999 Constituent Assembly, yet an average of 68.7 percent of the electorate did not embrace the SXXIC’s planned constitutional replacement. Indeed, combining abstentions with the votes against it and null votes, the following results transpired: during the April 25, 1999 referendum on the Constituent Assembly’s attempt to replace the 1961 Constitution, 67 percent of Venezuelans did not cast their vote in favor of the SXXIC. On July 25, 1999, Venezuelans voted on a slate of proposed representatives to the Constituent Assembly; 69.7 percent of the electorate did not vote in favor of any governmental candidates supporting constitutional replacement. Finally, on December 15, 1999, Venezuelans had the opportunity to approve a new Constitution drafted by the Constituent Assembly; more than 69.42 percent of eligible voters refused to do so.
In 2007, Chávez sought to enact profound reforms to the 1999 Constitution. Among other reforms, he tried to include indefinite reelection and the extension of a presidential term from six to seven years – a proposal 73.25 percent of the electorate declined to support. A similar attempt occurred again in 2009. After Chávez’s death in 2013, Nicolas Maduro, his handpicked successor, was elected to serve the remainder of Chávez’s term. Ostensibly in an effort to replace the 1999 Constitution, Maduro convened a new Constituent Assembly on May 1, 2017. Elections were held on July 30, 2017 for the new Constituent Assembly, and Maduro’s government supporters won all of the seats. However, more than 58.47 percent of the electorate abstained from voting. The SXXIC regime furnished the Constituent Assembly with unlimited control to override any remaining constitutional principles, laws, or governmental activities. As the 2017 Constituent Assembly has not yet proposed a new Constitution, the 1999 Constitution’s text continues to be in force. Low electoral turnout, in other words, has prevailed throughout all of the attempted and successful constitutional changes.
III. Deteriorating human rights conditions.
The systematic violation of Venezuelans’ fundamental human rights is an important factor in explaining the refusal of citizens to approve the SXXIC proposals. As human rights conditions deteriorated, electoral participation plummeted.
The United Nations, the Organization of American States, and the European Union have all found serious, systematic, and substantial human rights violations and extensive international crimes committed by the current regime. In 2017, the Inter-American Commission on Human Rights (IACHR) found that thousands had been arbitrarily detained and documented allegations of torture and cruel, inhuman, and degrading treatment by state agents. The IACHR also identified fair trial violations in the country’s courts. Over five million Venezuelans have been forced to flee the country as a result of systemic violence, poverty, insecurity, and political persecution. Most recently, the United Nations Independent International Fact-Finding Mission on Venezuela documented instances of extra judicial executions, enforced disappearances, arbitrary detentions, torture, and other cruel, inhumane, or degrading treatment. The Mission further alleged that crimes against humanity have been waged against the civilian population since 2014.
Furthermore, the economic situation of most Venezuelans has declined rapidly over the past two decades. In 1999, 22.6 percent of Venezuelans were in extreme poverty. A study conducted by three Venezuelan universities shows extreme poverty grew from 22.6 percent in 2014 to 79.3 percent in 2019. The same report specified: “79.3% of Venezuelans have no way to cover the food basket.” In 2018, 86 percent of all Venezuelan had salaries insufficient to allow an adequate living standard – compared to the average of 47 percent in Latin America. In 2019, Ricardo Hausmann, Professor at the Harvard Kennedy School of Government, described the economic situation in Venezuela as “the biggest economic collapse in human history outside of a war or state collapse.”
IV. Venezuelans’ continued belief in democracy: the nation’s deeply rooted constitutional culture and rejection of SXXIC.
- Venezuela’s deeply rooted constitutional culture.
The Venezuelan constitutional culture encompasses structures designed to integrate democratic concepts.  In the past 23 years, Venezuelans have shown the highest support for democracy among 17 Latin American countries surveyed. In 2018, 75 percent of Venezuelans preferred a democratic system to any other form of government, followed by Costa Rica with 63 percent.
This support for democracy has grown inversely with the decline in freedom in the country. Venezuelans have long accepted and internalized the main democratic institutions and constitutional values reflected in the 1961 Constitution. Until the introduction of the authoritarian SXXIC, Venezuelans participated extensively in electoral democracy. As Venezuela descended into dictatorship and humanitarian crisis and citizens saw their political and social freedoms severely curtailed, their support for democracy nevertheless grew from 60 percent in 1995 to 75 percent in 2018.
In view of this deeply engrained constitutional culture and support for democracy, one important question arises: why is electoral participation still so low? It is in large part because Venezuelans deeply mistrust the inherently political electoral system that was imposed by Chávez. Since 1999, allegations of electoral fraud have been rampant in Venezuela. Electoral experts, using a sophisticated electoral model called Benford’s Law, have stated that from 2004 onwards their tools have detected anomalous statistical patterns “consistent with elections fraud.” Moreover, Chávez supporters were able to draft and unilaterally approve the electoral rules for the elections involving the 1999 Constituent Assembly. Venezuelan constituents, in other words, have had no ownership over the Constituent Assembly; it is perceived as a purely political vehicle for a corrupt government to impose its agenda.
Despite the lack of voter participation, the strong democratic constitutional culture in Venezuela is a result of at least three deeply interconnected factors. The first of these factors is the nation’s reaction to the dictatorship that existed during the 1950s. Prior to the democratic experience of the 1960s and onward, Venezuelans lived under a military dictatorship for a decade. As a result of oppression under this government, a constitutional democracy, freedom, and liberty became deeply desired by Venezuelans. This culminated in the 1961 democratic Constitution, which was enormously influential to the democratic experience of Venezuelans.
Second, because of the relative prosperity of the ‘80s and ‘90s, Venezuelans came to associate democracy with economic well-being: the strong synergy between politics and a positive economic system was seen as “real democracy.” The constitutional democratic culture in Venezuela has also incorporated a socio-economic dimension. Rey and Pabon ascribe to the Venezuelan democratic culture not just a political role, but also a socio-economic beneficial purpose. This is because the state, as the owner of natural resources such as oil, played an important role in distributing resources in society; it created an expectation of redistribution of wealth.
Third, and rather inconsistently with his authoritarian practices, Chávez himself fomented constitutional values in Venezuelan society by promoting the 1999 Constitution. He launched an extensive mass media policy, often focusing on constitutional values. During his 13 years in power, he spent 3,306 hours speaking to Venezuelan citizens on television or the radio to promote his “little blue book,” the 1999 Constitution. Maduro has followed his predecessor’s playbook in this respect.
- The Venezuelan refusal of SXXIC.
Venezuelans do not support the extreme authoritarian system represented by SXXIC. The vast majority view it as a tragedy and many commentators deny that SXXIC has any democratic features. For example, in 2018, Professor Scheppele proposed that “after more than a decade of autocratic consolidation, Russia and Venezuela seem to have fallen completely out of the family of global democracies, and Venezuela is showing signs of being a failed state.” Similarly, Halmai has commented that Chávez and Maduro are “following an authoritarian agenda and do not tolerate opposition parties.” In 2018, Landau discussed the popular rejection of SXXIC, determining that “the empty forms of democratic constitutionalism may fail to bolster an authoritarian legal order when, as with Maduro’s 2017 Assembly, they no longer enjoy even a minimal level of popular legitimacy.”
Venezuelans want the restoration of the 1999 constitutional text. A 2017 poll conducted by one of the most well-known polling firms in Venezuela, Datanalisis, revealed that 85 percent of the responders do not believe a new constitution to be necessary. Based on a questionnaire on the 1999 Constitution, the pollster concluded: “it is not necessary to change the current Constitution. What the government must do is comply with it.”
The 1999 Constitution was weakly endorsed at the time of its adoption yet is, paradoxically, overwhelmingly supported by Venezuelans today. Low electoral participation and socio-political dissatisfaction have not been in conflict with the strong support for democracy. A constitutional culture has prevailed over the mistrust of political leaders.
The SXXIC justifies its supremacy by structuring a new elite to dismantle pluralistic democracy. The government and state have become undifferentiated; the SXXIC monopolized the whole state. The regime’s destructive project was opportunistic, not genuinely ideological; Simón Bolívar and Karl Marx were placed in the same tray.
Constitutionalism does not characterize today’s Venezuelan SXXIC practices. More than that, the regime embodies a form of anti-constitutionalism because it has not complied with the fundamental human rights, democratic values, and institutions enshrined in the 1999 Constitution’s text, nor with a minimum of socio-economic redistributive justice.
[*] Lewis & Clark Law School, Visiting Scholar
 Consejo Nacional Electoral, Elecciones Presidenciales Cuadro Comparativo 1958-2000, http://www4.cne.gob.ve/web/documentos/estadisticas/e006.pdf.
 Michael Coppedge, Venezuela: Popular Sovereignty Versus Liberal Democracy 3 (Kellog Inst. for Intl. Studies, Working Paper No. 294, 2002), https://kellogg.nd.edu/sites/default/files/old_files/documents/294_0.pdf.
 Id., see also Consejo Nacional Electoral, Referendos Nacionales Efectuados en Venezuela (1999-2000) http://www.cne.gob.ve/web/documentos/estadisticas/e010.pdf (combining abstentions, votes against the SXXIC, and null votes).
 Coppedge, supra note 2 at 3, Table 1: Electoral Support for Chavismo.
 Poder Electoral Ofreció Primer Boletin Oficial, National Electoral Council Web Archive (Dec. 3, 2007) https://web.archive.org/web/20071213001745/http:/www.cne.gov.ve/noticiaDetallada.php?id=4347. I added abstentions, votes against the SXXIC, and nulls. Based on the official data indicated by the National Electoral Council’s office, I did the calculation.
 Gabriel Mario Santos Villarreal, Referéndum Constitucional de Venezuela 2009, 23-24 (Mar. 2009) http://www.diputados.gob.mx/sedia/sia/spe/SPE-ISS-05-09.pdf.
 EC/Agencias, Resultados de las Elecciones a la Constituyente en Venezuela del 30 de Julio, El Confidencial (July 7, 2017), https://www.elconfidencial.com/mundo/2017-07-31/resultados-elecciones-venezuela-asamblea-nacional-constituyente_1423083/.
 Humberto Briceno Leon, The International Criminal Court: Interconnection Between International Bodies in Venezuela, 24 Lewis & Clark L. Rev. 261, 269-275 (2020).
 Inter-American Commission on Human Rights, Democratic Institutions, the Rule of Law and Human Rights in Venezuela (2017), http://www.oas.org/en/iachr/reports/pdfs/Venezuela2018-en.pdf.
 See R4V, Refugee and Migrant Response Plan 2021 at 1, https://rmrp.r4v.info/.
 Hum. Rts. Council, Detailed Findings of the Independent International Fact-finding Mission on the Bolivarian Republic of Venezuela, ¶ 26-32, ¶ 33-39, ¶ 40-44, ¶ 45-53, ¶ 2084, ¶ 2086-2094, U.N. Doc. A/HRC/45/CRP.11 (Sept. 15, 2020) https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session45/Documents/A_HRC_45_CRP_11_EN.pdf.
 María Gabriela Ponce Zubillaga, La Pobreza en Venezuela: Mediciones, Acercamientos y Realidades. 1997-2007, Temas de Coyuntura 53, 73 (Dec. 2009) http://revistasenlinea.saber.ucab.edu.ve/temas/index.php/temasdecoyuntura/article/viewFile/1090/980.
 ENCOVI, Encuesta Nacional de Condiciones de Vida (2019-2020) https://www.proyectoencovi.com/informe-interactivo-2019.
 Corporación Latinobarómetro, Informe 2018 70 https://www.latinobarometro.org/latdocs/INFORME_2018_LATINOBAROMETRO.pdf.
 Colleen Walsh, Understanding Venezuela’s Collapse, The Harv. Gazette (Feb. 12, 2019) https://news.harvard.edu/gazette/story/2019/02/harvard-expert-tries-to-make-sense-of-venezuelas-collapse/.
 See Richard Albert, Counterconstitutionalism, 31 Dalhousie L. J. 1, 19 (2008).
 Corporación Latinobarómetro, supra note 16 at 17.
 Consejo Nacional Electoral, supra note 1.
 Freedom House, Countries and Territories, https://freedomhouse.org/countries/freedom-world/scores (comparing Venezuela’s Global Freedom score of 16/100 with the Netherlands’ score of 99/100); see also Freedom House, Venezuela Overview 2020 https://freedomhouse.org/country/venezuela/freedom-world/2020 (“Venezuela’s democratic institutions have deteriorated since 1999, but conditions have grown sharply worse in recent years due to the continued concentration of power in the executive and harsher crackdowns on the opposition.”).
 Corporación Latinobarómetro, supra note 16 at 16.
 Raúl Jiménez & Manuel Hidalgo, Forensic Analysis of Venezuelan Elections During the Chávez Presidency, PLoS ONE 1 (June 27, 2014).
 David Landau, Constitution-Making Gone Wrong, 64 Ala. L. Rev. 923, 941 (2013).
 Juan Carlos Rey & Jorge Pabón, Caminando por la Cuerda Floja: Los Poderes del Presidente, la Gobernabilidad y la Legitimidad en la Constitución de 1999, Centro Gumilla 244, 244-245 (2000), https://gumilla.org/biblioteca/bases/biblo/texto/SIC2000626_244-250.pdf.
 Mariaeugenia Morales, The People Show. La Historia Televisada de un Presidente, in La Comunicación Bajo Asedio: Balance de 17 Años 116 (Marcelino Bisbal ed., 2018).
 Kim Lane Scheppele, The Limits of Constitutionalism: Autocratic Legalism, 85 U. Chi. L. Rev. 545, 555 (2018).
 David Landau, Constitution-Making and Authoritarianism in Venezuela: The First Time as Tragedy, the Second as Farce, in Constitutional Democracy in Crisis? 161, 162 (Mark A. Graber ed., 2018).
 Datanalisis: 85% de los Venezolanos Rechaza Modificar la Constitución, Prodavinci (June 9, 2017), http://historico.prodavinci.com/2017/06/09/actualidad/datanalisis-85-de-los-venezolanos-rechaza-modificar-la-constitucion-laminas-2-2/.