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International Law News

International Law News, Spring 2021

How Venezuela Lost the Rule of Law

Steven Edward Hendrix


  • Venezuela was once Latin America’s most prosperous country and longest-standing democracy. How has Venezuela reached its current situation?
  • To understand today’s crisis is to understand Venezuela’s flawed democratic experiment going back in time.
  • Future approaches in Venezuela must appreciate the real frustrations of government failure – since before the 1960s.
How Venezuela Lost the Rule of Law
Helen Camacaro via Getty Images

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Will there be a “Venezuelan Spring”? In 2020, de facto President Nicolás Maduro increased his grip on power through the oppression of protests (under the excuse of COVID-19) and the media, and mass patronage to loyal supporters – especially the military. By 2021, five million and a half Venezuelans (18% of the population) have fled the country since 2013, the year Chavez died and Maduro took over – the single largest refugee crisis in Latin American history. Healthcare has collapsed. Price controls and expropriations cripple private initiative. Crime is out of control, while poor Venezuelans go hungry. Oil output is at a 77-year low. In just 2020, agriculture production fell another 30%. A rigged legislative election in December 2020 means the opposition has no formal, remaining role in any branch of government.

Venezuela was once Latin America’s most prosperous country and longest-standing democracy. How did this happen?

Roots of Venezuela's Flawed Democracy

Democracy and government legitimacy are predicated on respect for the rule of law. To understand today’s crisis is to understand Venezuela’s flawed democratic experiment going back in time. Before 1958, Venezuela suffered under the ten-year dictatorship of Marcos Evangelista Pérez Jiménez. Worse, it still had not recovered from the last dictatorship of Gen. Marcos Gómez, which had lasted for thirty-six years. In 1958, a military revolt was timed with protests by several left-wing groups, the labor movement, several social groups, and the two mainstream political parties (Acción Democrática - AD and the Comité de Organización Política Electoral Independiente or "Political Electoral Independent Organization Committee," the Christian Democrat Party - COPEI). President Pérez Jiménez was forced to resign. Venezuelan democracy began with its first modern President, Rómulo Betancourt.

However, as with other Latin American countries moving toward democracy, it was not all-inclusive. To institutionalize their success, the two main political parties undertook a political alliance, the “Pacto de Punto Fijo.” The two parties agreed to share political power ("Partidocracia") to some degree, regardless of which party won the elections. They attempted to impart permanence to the government based on a concurrent majority that would, in turn, provide stability to the new democracy. The deal assured that government would not return to a dictator's hands by excluding the Venezuelan military's participation in politics. Soldiers no longer could vote nor hold public office. Left-wing parties were also out.

Venezuelan rule of law was excruciatingly slow to reform, from independence through the return of democracy after 1958. And those changes were insufficient to dislodge the old oligarchies from control, fueling broader discontent. The most significant change during the first years of democracy was the nationalization of oil. Administrative reform of the state was even slower. It was not until 1978 that legislation gave autonomy and organizational viability to municipalities under the “Ley Orgánica del Régimen Municipal," with the first elections for Municipal Councils in 1979, granting political relevance and identity to local government and achieving municipal autonomy. In 1980, direct elections for state governors and mayors began. In effect, the national political government was democratic, but the parties were authoritarian, a recipe for disaster. In 1989, Venezuela finally began to modify how political parties selected their national candidates. Governors and mayors were no longer chosen by the parties but instead had to compete in elections.

Other reforms came grudgingly. Women's rights to a great extent only came into effect in 1982 with changes to the civil code, a document mostly unchanged since the 1800s. Gross levels of corruption in the 1980s in the executive, legislative and judicial branches meant that economic reform took a back seat. In 1990, the economic reforms across Latin American represented by the so-called "Washington consensus" and accepted by then-President Carlos Andrés Pérez were called "savage neo-liberalism” by Chávez. The measures were widely unpopular in Venezuela.

Like many others in the region, the Venezuelan Criminal Code (código penal) had not been modernized since the 1800s. So it did not reflect new forms of corruption. Citizens noted that the politicians who benefited most by inaction were the very ones responsible for bringing the code up to date. The criminal code was finally modified during the last period of President Rafael Caldera Rodríguez (1998), just before elections that swept Hugo Chávez to the presidency.

So, the dissatisfaction with democracy in Venezuela has deep roots, based in part on the exclusion of the military from political participation, exclusion of other political forces from effective participation, and real grievances against corrupt, inept leadership and a slow reform process. The movement was not new or even specific to only Venezuela. Still, it was one with sufficient weight to approach a center of gravity where it sought to take over entire governments in the region. The populist left sought political change not just in Venezuela but across the hemisphere.

The "Caracazo”

During decades of dictatorship, followed by decades more of inept, corrupt democracy, ordinary citizens lost faith in the COPEI and AD political parties. Soldiers at lower ranks felt abandoned in their barracks. Most of the enlisted men came from poor areas (or ranchos) surrounding Caracas and other large cities. Little was done to improve their professional careers or standards of living. They were looking for a change.

Lieutenant Hugo Chávez stepped into this vacuum. As early as 1982, Hugo Chávez, Jesús Urdaneta, and Felipe Acosta Carles (later killed during the Caracazo) began to organize a political conspiracy to overthrow the government. Chávez founded a political cell within the army named MBR 200 (Movimiento Bolivariano Revolucioanrio 200). By 1985, other key officers had joined the movement, including Arias Cárdenas. The leadership and soldiers who joined them started making contacts with the survivors of the guerrilla movements of the 1960s - groups intentionally left out of the Pacto de Punto Fijo that had earlier tried to overthrow President Betancourt. After the Caracazo, they all believed their time was at hand.

The decades of dismal political governance and the “Washington Consensus” gave the excluded left its agenda. In the so-called “Caracazo,” the Bolivarian Revolutionary Movement prepared for months, discrediting the government in the media. Next, President Carlos Andrés Pérez increased gasoline and public transportation prices, consistent with an IMF approach to austerity, a measure that hit the poorest the hardest. The morning of February 27, 1989, bus fares doubled, and people started to protest. Perez suppressed the protests and continued in power. But by March 4, 257 were dead, according to the government. Other sources put the figure at more than two thousand. The end of “Partidocracia” was at hand.

Coup Attempt, February 1992

On February 4, 1992, a group of army lieutenant colonels led by Chávez mounted an unsuccessful coup attempt, claiming that the events of 1989 showed that the political system no longer served the people's interests. The coup failed, and Chávez was sent to prison. A second, equally unsuccessful coup attempt by other officers followed in November 1992. A year after the two attempted coups, Congress impeached the weakened Carlos Andrés Pérez on corruption charges. Still, the presidency was crippled.

President Caldera Sets the Stage for Chávez

After the disaster of the Pérez presidency, Rafael Caldera – the granddaddy of Venezuelan politics and the father of COPEI – wanted to return to politics and once again run Venezuela as President. But the times had changed. Ironically, in one of the few reforms meant to bring transparency and participation to political parties, new rules now required candidates to win a party's nomination through a primary process. Caldera thought that process beneath him since, after all, COPEI was his own party. So he refused to “lower himself,” considering it a lack of respect for the elder statesman. Instead, he set up a run for the presidency as an independent, the head of “Convergencia.” Knowing his party and power base was now split, Caldera sought non-traditional support: the small leftist parties historically excluded. In exchange, they demanded the immediate release of Chávez from jail. The deal was struck.

Upon his election, Caldera made good on his promise, his "pact with the devil," and pardoned Chávez for his civil and criminal responsibilities for killing many people in his earlier coup attempt and for the crime of usurping democracy. This pardon removed any impediment, civil or criminal, from Chávez, later running as a presidential candidate. Out of jail, with the widespread support of the masses, and the popular support of the troops (not the commanders, but the recruits), Chávez strengthened his political position. There was yet another unsuccessful coup attempt against Caldera this time. These “near miss” coups reflected the continued frustration and dissatisfaction of the population and democracy’s fragility.

In December 1998, Chávez democratically won the presidency on a broad reform campaign, constitutional change, and a crackdown on corruption. He pursued a populist line of action, alienating civil society and the business classes from the start. The most controversial reform was a new Constitution. In August 1999, a National Constituent Assembly (ANC) convened to begin rewriting the Constitution. In presumably free elections, voters gave all but six seats to persons associated with the Chavez movement. Venezuelans approved the ANC's draft in a national referendum on December 15, 1999.

Constitutional Law lawyers and experts – supported by the traditional parties - argued that the new Constitution was flawed at inception. They argued Chávez had not followed proper constitutional rules to choose a National Constituent Assembly to draft a new Constitution. In essence, the Constitutional Law experts argued the resulting Chávez Constitution was defective because the Assembly representatives' selection was flawed. And therefore, the power constituted by Chávez was already unconstitutional. This constitutional argument was not well-understood by society and did not threaten Chávez politically with his base, but did infuriate the opposition.

April 12, 2002 - The Perfect Storm

This night was the result of a remarkable coincidence and a great surprise. That day there was an electoral march by the opposition toward the Presidential Palace at Miraflores. The marchers decided that, upon arrival, they would not leave Miraflores. They were going to lie down and stay there, for days if necessary until Chávez resigned. This approach by civil society has been successful in other Latin American countries in forcing presidents to leave. Perhaps after receiving counsel from Cuba, Chávez decided he would not allow this style of protest in his country.

Chávez responded with civilian and military components. The civilian part was to assure that all public offices were closed in the downtown area – purportedly for the safety of the government employees and government property – but actually to deter government employees from joining in the protest. From the government’s emergency “situation room,” all top security officials gathered together, civilian police commanders, military brass, ministers, and others. However, the military and Chávez separately formulated Plan Ávila. Unknown to the civilian authorities, Plan Avila was the Chávez command for the military to fire on unarmed civilian protesters.

Some elements of the military did fire on the unarmed civilians. Others disobeyed orders and refused to fire. The military command was furious with Chávez for having given the order. The military requested the resignation of President Chávez and ordered the Vice Minister for Justice to locate Vice President Cabello so he could be sworn in immediately, or instead of the Vice President, the head of the National Assembly. Chávez then resigned.

However, the Vice President and two other potential successors to the presidency hid in an embassy, seeking asylum. Not being able to find the next in succession created a surprise power vacuum. Chávez was out, but who was next in line? Into this vacuum, the opposition began to meet furiously, trying to decide how to respond to the situation. The military officials wanted to avoid a civil war. In the confusion, taking advantage of the moment, the opposition pushed Pedro Carmona Astanga, a former Venezuelan trade organization leader, to the front as the one to lead the country. Everyone fully expected a non-political caretaker government and snap elections.

That is not what happened. Carmona read a decree on live television drafted by the Constitutional experts repudiating the Chávez revolution. The Presidential Decree upended the Chávez constitution based on its supposed flaws at inception. In this sense, the Decree did not violate Constitutional Law as such. But it was a political disaster and gave everyone the impression that the opposition intended to abrogate the Constitution. Chávez had led a government democratically elected, and now an interim caretaker was overthrowing the Constitutional order of the day. While the Decree wanted the country to revert to its "true" constitutional standing, it was a horrible moment in history to make an academic point about constitutionality or to try to fix problems that were years in the making. Whether Carmona understood the speech he was handed to read – announcing the Decree – is open for debate.

The reaction to the Decree was catastrophic for the opposition. Support began to erode quickly. The rash opposition decision to push the Decree while taking power smacked of a coup, even if entirely unplanned. The public understood this clearly as a coup against the Congress, Presidency, and Court.

Was the United States involved in this? There is no credible evidence it was. The Embassy likely hardly knew Carmona. While the United States did not hide its disdain for Chávez, at the same time, he was scarcely important enough on the world stage for U.S. attention – with a war against the Taliban and Al Qaeda in Afghanistan and Pakistan already underway, and with the war in Iraq pending. This was not the time to open another front. The U.S. did provide minimal funding to civil society groups and provided training to aspiring politicians, selecting candidates on a non-partisan basis, including many from Chávez's political party. But the events of April 12, 2002, seven months after the terrorist attacks on New York and Washington, took the Americans by surprise more than anyone. The U.S. blunder was to recognize Carmona in the confusion. Ever since then, Chávez and his sympathizers used this fact to shift blame at external agitators (and most emphatically George W. Bush) and to deflect attention from the fact that it was Chávez who had ordered troops to fire on unarmed civilians, leading to his detention and resignation. In doing so, Chávez took a page out of the Fidel Castro playbook, playing David to the U.S. Goliath.

Toward a Bolivarian "Rule of Law" – such as it is

There was one big difference between this “Bolivarian Revolution” and the older leftist revolutionary movements of the 1950s and earlier. The new movement tried to make revolution through the law itself and with new institutions. They did this through “democratic governance.” That is to say, Chávez was popularly elected. The new revolutionaries also use the law to construct and institutionalize their ideal for the government. Later, Brazil (Luis Ignacio Lula de Silva), Argentina (Cristina Fernandez de Kirchner), Bolivia (Evo Morales), Nicaragua (Daniel Ortega), and Ecuador (Rafael Correa) had parallel movements that aspired - to one degree or another- to emulate what Chávez had done.

Chávez became the master at staying within a technical “rule of law” over the long term to solidify his revolution, even if he completely ignored rules in the short term. Here, three examples will demonstrate the point. The Supreme Electoral Tribunal Law modified the number of tribunal magistrates to 32 judges. All of these new judges were named directly by Chávez, without regard to the law. Chávez named the judges after the Constituent Assembly that created the new Chávez Constitution. In short, Chávez did not follow his own Constitution. There were provisions which specified how judges should be named and the procedure to follow. The National Assembly was supposed to call for a list of candidates and a competition among those qualified. The new law, relatively short in length, was approved by the National Assembly, dominated by Chávez's Officialist Party. Still, the legislation was not followed, but the Magistrates remained in place.

Second, the Constitutional Branch (Sala Constitucional) of the Supreme Court had previously held that the military commanders were not responsible for any crime in asking for Chávez to resign on the night of April 12, 2002. The Court did this even though most of the members of that Court were from the Official Party. This decision had the effect of res judicata (in Spanish, “cosa juzgada") against the defendants. Part of the reasoning behind the decision was that the President had, in fact, resigned, even according to the President's top advisor.

However, with new Chávez appointees, the Court went back to re-review the earlier case against the military command. The Court then “annulled” its prior decision and re-opened the claims against the military command. Once this was done, the defense of res judicata no longer applied. Following this lead, state courts across the country began similar witch hunts, annulling past decisions and re-opening cases to allow for politically-motivated prosecutions. Res judicata ceased to mean anything. The judgment generated mass legal insecurity across the country, resulting from a complete lack of judicial independence. The law is being used as an instrument to effect political change in favor of the revolution.

Third, since the law did say that judges should be named through a competitive process, Chávez's administration then turned to embrace that process to solidify gains to date. All the previous judges who had come up through the ranks throughout the forty years of democratic governance were thrown out in 2002 on the grounds that they were all corrupt. The vast majority (but certainly not all) probably were corrupt. The only ones still in office after that date were those named directly by Chávez and his political machine. However, the fly in the ointment was that some of these new judges wanted to be independent, not subservient to Chávez's Officialist Party. They began to exercise independent judgment. In reaction, through administrative action, some courts were closed. These non-compliant judges, although named by Chávez, were replaced with new, more loyal ones. From these further nominations and judges, there emerged a competitive process in the future for promotions.

Only existing judges would be considered for promotions. That guaranteed that the Officialist Party remains in control. The difference will be that the new judges would be named consistent with the law. Their nomination could not be criticized because the official process was followed. The naming of these judges would also withstand complaint in the Inter-American legal system since it complied with the strict formalities for an independent judiciary. So those judges would take on permanent tenure in office, solidifying the revolution in the bench for decades to come. Of this group of new judges, who will go against the party now? Who has the stature and independence to affect justice? Due process ended. The rule of law nominally remained in favor of the United Socialist Party of Venezuela (PSUV) PSUV Party. The party just owned the judiciary.

What’s Next?

It is essential to understand that Venezuela has few political options left. The Chavez phenomena grew to dominate the country precisely because the traditional parties were viewed as corrupt and incompetent. Today, speaking with representatives from one side or the other, listening to how each describes the situation on the ground, an observer would be forgiven for thinking the two groups were representing completely separate countries. The Maduro supporters and the opposition cannot even agree on the facts, let alone discuss policy options. It is hard to find "white hats" to support when so many "black hats" are found on both sides of the debate. The "white hat” champion approach was tried once with Carmona, to disastrous effect. Each side demonizes the other – and regrettably – to a degree, each side has a valid point, as the years since 1958 have shown. The much more sustainable path now is an institutional one, with consensus-building and democratic transparency.

In the meantime, the Venezuelan government has run the economy into the ground. In what was once the wealthiest country in Latin America in the 1970s, the masses go hungry. Starvation, poor health and sanitation, a collapse in education, and the world's worst inflation rate signal catastrophically poor governance and incompetence. The 2013 Capriles presidential campaign showed that Venezuelans were already tiring of the old model, generating pressure for change. The massive 2017-20 protests show the Maduro regime hangs on through corruption and oppression.

President Barak Obama used targeted sanctions against key Maduro and regime figures. U.S. diplomacy galvanized an international community against Maduro at the Panama 2015 Summit of the Americas. Since then, the Maduro regime actually replaced the leaders of the opposition parties with his own people, held sham elections and used hunger as a weapon against his own people. The U.S. joined the European Union and the Lima Group (Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Guatemala, Guyana, Honduras, Panama, Paraguay, Peru, Saint Lucia) to condemn the use of force by Maduro to stay in power. Noting that elections had been rigged, the international community recognized Juan Guaido, head of the National Assembly (and as such next in line of succession) as the legitimate constitutional president of Venezuela.

Still, Maduro clung on. Despite reinforced sanctions under the President Trump administration, in December 2020, Maduro presided over legislative “elections” so badly rigged that opposition figures decided they could not even participate. As a result, President Juan Guaido was deprived of his seat in the Congress, and Maduro had a de facto lock on all branches of government. Having said that, the Biden administration continues to recognize Guaido as the legitimate head of Venezuela’s government. In February 2021, the European Union ambassador in Caracas was declared persona non grata after the EU increased sanctions against the Maduro regime.

Future approaches in Venezuela must appreciate the real frustrations of government failure – since before the 1960s. Maduro is just the latest extension of those prior failures. And he is more entrenched than ever before. However, the longer he stays in, the more chaotic it will be when he eventually falls.

Venezuelans need to decide their future. Given that sanctions have not yet decisively affected the Maduro regime, policy should reinforce existing sanctions, while also shifting emphasis from Venezuela to the Venezuelans themselves. In other words, the people of Venezuela should be the priority. This should include food aid to the citizens still in Venezuela as well as those refugees in neighboring countries.

The goal for U.S. policy should be to work with the European Union, the Lima Group and the Organization of American States to allow Venezuelans to choose their own government. There should be free, fair and credible elections, consistent with the Inter-American Democratic Charter. Transparency, good governance, and participation must become the norm, as envisioned in the Inter-American Convention Against Corruption and the American Convention on Human Rights. Only then will the population reject antidemocratic populism's allure and again embrace a pluralistic, tolerant, and inclusive approach to democracy and human rights.