JUAN FRANCISCO ALONSO
EL UNIVERSAL

President Hugo Chávez' proposal to reform the Constitution of the Bolivarian Republic of Venezuela for the purpose of enabling the head of state to run for re-election on an indefinite basis, ordering a political and administrative reorganization of the country and setting a socialist socioeconomic model has split not only politicians but also constitutional experts. There is no consensus among them on what is the best way to incorporate these new approaches into the text of the constitution.

Some claim that a constitutional reform is the right way of amending the fundamental law, while others agree that only a constituent assembly would be empowered to do so, as, in their opinion, the proposed changes are so huge that they entail drawing up a new constitution.

Yet, some others prefer to wait for the Presidential Committee for Constitutional Reform to produce a final proposal so as to assess it and give an opinion on the matter.

The Venezuelan ruler, who propounded the constitutional amendment, falls into the first group. Although not being a lawyer, he gave an explanation of some arguments that, as he said, some experts in constitutional law submitted for his consideration.

During the swearing-in ceremony of the Presidential Committee for the Constitutional Reform, Chávez disclosed the reasons in favour of a constitutional reform. In this regard, he said: "I am certain that a reform is the right way (to amend the constitution), because (the primary object of) a constituent assembly is to draw up another constitution, and we do not need that."

In the ceremony, which was held at Teresa Carreño Theather, downtown Caracas, he read article 342 of the Venezuelan Constitution, which provides that "the purpose of a constitutional reform is to effect a partial revision of this Constitution and replacement of one or more of the provisions hereof, without modifying the fundamental principles and structure (titles and chapters) of the text of the Constitution."

Immediately afterwards, and making an interpretation of such article, Chávez underscored that "the Venezuelan Constitution establishes that a (constitutional) reform is aimed at replacing one or several of the provisions thereof. (The fundamental law) sets no boundaries; 'several' may be 100, 200 or all of them, provided the structure of the constitutional text and the fundamental principles contained in the first nine articles are not modified (…) We are not to change any (of these nine articles), but the remaining articles may be changed."

In an interview with El Universal newspaper, parliamentarian and member of the Presidential Committee Carlos Escarrá pointed out with a similar wording that "a constituent assembly is empowered to draw up a new constitution by means of which the State is thoroughly modified, whereas a constitutional reform entails that the original constituent power, which is permanent, is resorted to but not to draw up another fundamental law."

Invoking the original power
Chávez' and Escarrá's arguments were refuted by Constitutional Law professor José Vicente Haro, Andrés Bello Catholic University (UCAB), by saying that "even though the first nine articles of the constitution remain unchanged under a constitutional reform, the fact is that the indefinite re-election issue changes the alternativeness principle contained in article 6," and that is in itself a modification of such an article.

As far as constitutional lawyer Juan Manuel Raffali is concerned, he used all but the same terms to claim that "if a single article containing fundamental principles is subject to change, the constitution is being changed as well." In this connection, he went on to explain that "although you do not delete even a single comma from the article that provides for the right to live, but if the article providing for judicial guarantees is changed to include death penalty, you are clearly changing the first article without even modifying its wording."

In the meantime, Hildegard Rondón de Sansó, former magistrate of Political Administrative Court, then Supreme Court of Justice, said that the important thing is to determine "whether the fundamental principles refer not only to the contents of title one but also to the other provisions of the constitution."

Haro also rebutted the arguments put forward by those who claim that the alternativeness principle (contained in article 6) would suffer no changes at all even if the President is allowed to run for re-election as many times as he wishes because the people may always elect another candidate.

"In presidential systems like ours the principle of alternativeness is guaranteed by putting a limit on re-election to only once, as the person in power is always more likely to win, "he said.

As to the proposal to set a socialist economic model, he added that such a model may undermine the pillars on which the Republic rests. In this regard, he explained that "the so-called 21st century socialism is inconsistent with the 1999 Constitution. The government is well aware of that and that is why it is proposing a constitutional reform. Article 299 about the socioeconomic regime provides for a social productive model, but not a socialist one."

No comments, for the time being
Raffali deems it premature to decide whether Chávez' proposal has a radical impact on the text of the fundamental law. "At this point it is hard to give a common answer because we know but the wording of the proposals, not their contents (…) Unless we know the draft constitutional reform we cannot determine if the constitution has been reformed or is a new one. The fact is that we do not face a reform, because the extent of the proposed changes entails a major surgery."

Both Raffli and Haro reminded that the Constitutional Court, Supreme Tribunal of Justice (TSJ), has been entrusted with deciding whether or not the draft the Presidential Council -presided over by National Assembly (AN) chair Cilia Flores- will submit is a constitutional reform.
 
"A (constitutional) reform is not free from a political control, which is exercised by means of a referendum, or a judicial one, which rests with the Constitutional Court," the UCAB professor claimed.

Translated by Servio Viloria