Thoughts of Venezuela from afar

On the question of what Canada ought to do about the constitutional crisis in Venezuela, I think it’s worth thinking about (a) what the constitution of Venezuela requires, and (b) how the right kind of stability can be produced (i.e., in such a way that democratic rule of law flourishes). I’d like to treat this as an opportunity to think about what constitutional law requires (a), as far as I understand it, and full well knowing that I have much to learn, and that facts may change daily.

The linked white paper from CSIS (a Washington think tank, not the Canadian version of the CIA) is instructive. In it, the author argues that Guaidó, head of the ousted legislature, is the current legitimate interim President and should be recognized as such. (More on that in a moment.) Moreover, he believes that, once Guaidó secures the office, he ought to delay election beyond the constitutionally mandated 30 days. Hence, he believes the shadow government ought to ignore the written Constitution of Venezuela. CSIS thinks a delay in elections would be justified because the country is experiencing extraordinary conditions, which the framers of the Constitution could not have reasonably foreseen. But this does not alter the fact that the recommendation is not consistent with the written constitution of the country.

So, either CSIS wants us to ignore the constitution of Venezuela, or it wants us to respect its unwritten constitution, and thinks the unwritten constitution permits a delay in elections. Since ignoring the constitution would amount to being an attack on the rule of law of that country, so I must assume that they are making an appeal to the unwritten constitution. e.g., by making reference to the political features of the system as such (even though the whole problem is that it is in tatters, with the neutering of the legislature), or by appealing to the conditions for identifying and preserving a system of law, or by telling a story about natural law, or some other thing.

I am personally convinced that there are ways to talk about the unwritten constitutions of civil law countries. But, to be sure, any claims we make about unwritten constitutions depend on substantive theories of law and considerations of public discernment of explicit meaning, which I am still actively wrestling with. Moreover, the standards for talking about unwritten constitutions are seriously constrained in civil law jurisdictions like Venezuela, since stereotypically, civil law fetishizes codes.

Here is the legal case for recognizing Guaidó as the President, as far as I understand it. The Venezuelan Constitution allows for the head of the legislature to take up the office in the “absolute absence” of a President, i.e., someone who is endowed with powers through ordinary processes of succession via election. But then the question is, “what does it mean for there to be an “absolute absence” of a President?”. Guaidó argues that the position is not occupied when the elections are fraudulent. This view is apparently shared by the international coalition. Though perhaps there is no objective third-party consensus that the elections were rigged, many seem to think it is plausible to say that they were fraudulent.

Yet, as a matter of fact, elections were held, and Maduro was sworn in — he is de facto ruler, whether or not he is de jure President. But can the Presidency be “absolutely absent” when there is a de facto ruler who fulfills many, but not all, of the conditions for orderly succession? What does the written law require, and who is in charge of figuring it out?

There’s a vast menu of options. Ordinarily, I’d have thought that this is the sort of constitutional question that needs to be resolved by jurists. But that is bad news for advocates of regime change, for a few reasons. First, there is a strong presumption that we ought to ask the Court what they think “absolute absence” means. Yet in cases of civil law jurisdictions, the rule of interpretation is supposed to be something like, obey the limits of the word. Moreover, since the ouster’s view is that the Court is “on the take”, that won’t be of much use in marshaling a legal case, since presumably, the Court will just vouch for Maduro.

What’s clear to me, though, is that if the election is demonstrably illegitimate — which it might be! — then, from a legal point of view, priority one should be to hold one that *is* constitutionally legitimate. With multilateral observers and all the bells and whistles of a democratic coalition operating in good faith. But that would seem to require holding an election within 30 days, as required by the Constitution. This, unless more is said about the processes for thinking about the supremacy of the unwritten constitutions, in a way that does not introduce uncomfortable questions about how we govern ourselves in our own backyards.

***

Those are the sorts of considerations that should be at issue when we think about whether Canada, or the West, ought to intervene. I think my suggestion is a substantive requirement that articulates a few of the conditions for just intervention without being paternalistic or imperial. Venezuela’s democratic sovereignty must be restored along the way to a just peace.

And that position is worth contrasting with the outdated neoconservative approach, which is to back a foreign dissident regime and arm them to the teeth. For example, unconfirmed reports from Democracy Now! give us reason to suspect that the US is smuggling arms into Venezuela. If true, then it signals that the States is ramping-up for yet another proxy war. And it is worth saying this doesn’t work out well for anybody.

If the international community truly worries whether or not the most recent election in Venezuela was free and fair, then a multilateral intervention should investigate. Again, ideally, this should occur at the request of the contesting parties who are looking for legitimacy. What the international community should not do is provoke violent unrest in an already complicated region.

Incidentally, none of these remarks issue from an especially idealistic foreign policy perspective. Even from a cold, reptilian neoconservative point of view, the extensions of the Monroe Doctrine (i.e., policies which ostensibly justify US intervention in other sovereign nations for American interests) are essentially subverted by the potential for blowback by non-state actors. From that same reptilian point of view, “No commies in our backyard” makes some sense when we were protecting from a conventional invasion. But it makes absolutely no sense in the context of arming paramilitants. For confirmation, consider former beneficiaries like Hussein and Bin Laden, and consider how well that turned out. (Please note that I am not making a direct comparison between these guys and Guaidó, except from within the reptilian point of view.)

The upshot for neocons in this new century ought to be something like this. Violence thinks it is intrinsically justified, and if you provide it with unfettered means and it will make itself its own end. Or, to put the point in a more prosaic way, once someone gains power, the way that they maintain their power is by scapegoating outsiders. This has been very successfully done by pointing, ironically, at the guys who gave them the guns in the first place, and saying — “we have to protect you from the meddling of the international bogeymen”.