Late in the evening of Sunday, Venezuela’s National Elections Council (CNE), the board that administers elections, announced that the governing United Socialist Party of Venezuela (PSUV) had won 46 seats, the MUD 99 (or 59 percent), and that the results for 22 seats are yet to be determined.
So the opposition will have a solid majority. If it is able to hold together and mobilize its legislators behind a common agenda, even 99 seats could provide a foundation to rewrite laws because the Venezuelan Constitution provides no real presidential veto. That is, if the president does not like a piece of legislation the Assembly passes, he can return it and request amendments but not veto it. In response the Assembly can simply ratify its intentions by simple majority, and the president is required to promulgate the bill as law. No super-majority is required to override a veto, as in most presidential systems.
If the president regards legislation as potentially unconstitutional, he can refer it to Venezuela’s Supreme Tribunal of Justice (TSJ) for judicial review. Of course, the prospects for a decision friendly to the president, as opposed to the Assembly majority, would depend on the composition of the TSJ. Those prospects could, in turn, depend on whether the MUD commands an even greater majority in the Assembly than it has secured so far.
The next significant threshold is 60 percent of the Assembly seats. The Venezuelan Constitution stipulates some important powers that a three-fifths majority can do but a simple majority cannot:
- Remove cabinet ministers (Art.187, section 10, Art.246).
- Pass enabling legislation (Art.203).
With 59 percent of the seats in hand and 22 more seats in play, it appears likely the MUD will cross this threshold, opening up a strategy of censuring ministers objectionable to the Assembly and trying to force compromise in how policies are implemented.
Enabling legislation refers to laws passed by the Assembly to hand the president authority to rule by decree on specified issues for fixed time periods. In the past, for example, majorities in the Assembly friendly to the president willingly handed former President Hugo Chavez decree authority over broad swaths of economic policy. In March of this year, the Assembly gave current president Maduro decree authority for nine months to take actions to confront what it perceived as U.S. imperialist aggression.
Prior to Sunday’s election, as the possibility of a MUD victory came into focus, there was speculation that the lame duck Assembly, still controlled by the president’s party, might hand decree powers to President Maduro before it it is replaced by the opposition majority. It is important to note that the Constitution refers to the 60 percent threshold for passing enabling legislation, but does not mention any special procedure for retracting it. Should the outgoing Assembly attempt to go this route, the sympathies of the judiciary could, again, become important.
All of this raises the prominence of the highest super-majority threshold: two thirds. To get there, the MUD would need to capture 14 of the 22 seats still in play for a total of 113. The Constitution establishes a number of things the Assembly can do only with this level of support:
- Put legislation to a referendum (Art.73).
- Pass certain legislation, known as “organic,” which has a status superior to regular law but below constitutional provisions, and outlines individual rights or the organization of state institutions (Art.203).
- Remove the Vice President from office (Art.240).
- Remove judges from the TSJ from the bench (Art.265).
- Appoint officials to posts analogous to a national Ombudsman, Attorney General, and Comptroller General (Art.279), as well as members of the National Election Council (Art.296).
- Approve amendments to the Constitution (Art.343, section 5 – still subject to ratification by referendum) or to convene a new Constituent Assembly (Art.348).
The authority to remove judges from the TSJ is critical. The entire Venezuelan judiciary was appointed either during the Chavez or Maduro administration, and judicial cronyism is widely decried. Moreover, the Venezuelan courts from bottom to top are overseen and administered by the TSJ (Art.255). If the MUD’s Assembly majority crosses the two-thirds threshold and can unseat top judges, it will threaten the core of the Bolivarian regime – not just its legislative scaffolding, but also the insulation of chavista officials at all levels of the state from vulnerability to corruption charges.
Whether any of this constitutional fine print matters, of course, depends on whether Maduro, and his allies in the courts, and the military, and in state and municipal governments, bow to the Assembly’s constitutional authorities. Even before the first results were announced, opposition supporters were voicing skepticism that the letter of the law would constrain Maduro.
Yet the president’s initial response to the PSUV’s electoral defeat was surprisingly acquiescent. Whereas a week prior, he had been proclaiming that would “never allow” an opposition victory, on election night he declared that, “We have come with our morality and our ethics to recognize these adverse results, to accept them and to tell our Venezuela, ‘The Constitution and democracy have triumphed.’”
If Maduro and his PSUV compatriots continue to recognize their electoral defeat, and if they govern according to the constitution bequeathed to them by Hugo Chavez, then the next few years will witness a fundamentally new phase in Venezuelan politics. How it plays out will depend on how many of the 22 Assembly seats yet to be awarded go to the chavistas and how many go to their opponents.
The election commission’s work is not done yet – indeed some of its most important decisions lie ahead in the next few days.
John Carey is Wentworth Professor in the Social Sciences at Dartmouth College, where he teaches in the Government department. More about his research is here.