The modern coup d’état: Constituent Assembly

On August 12, 1999, the Constituent Assembly (asamblea nacional constituyente) in Venezuela declared itself above the law, above the constitution, above the parliament, above the president, even above the Supreme Court. They thus broke the constitutional order, which is tantamount to committing a coup d’état. The case went to the Supreme Court, which ruled that the Constituent Assembly was above the constitution, why they had the power to declare themselves above the law so to say. The Supreme Court decision was clearly outside of its competence.

Writes Gianluigi Palombella in «Constitutional Transformations vs. “Juridical” coups d’ État. A Comment on Stone Sweet»: “according to the common view, when a competent power acts within the limits of its conferring rules, explicates its own tasks within the range of the rules of the game, without asserting a new, previously un-conferred – power for the future, this would be unlikely to be characterized as a coup.” The Venezuelan Supreme Court clearly and blatantly acted outside of its conferring rules, outside the range of the rules of the game, when it conferred all the powers of the existing constitution to an assembly that was not contemplated by the constitution – even it’s own powers. It was a clear-cut coup d’état from a juridical perspective.

How was it possible to get away with such a blatant coup d’état in our day and age? It seems that the coup was “sold” by confusing two terms, thus obfuscating the matter in media. The appropriate assembly would have been a Constitutional Assembly (asamblea constitucional in Spanish), i.e., an assembly tasked with drafting a new constitution to be approved according to the provisions of the existing constitution. This is what was done in Iceland recently, for instance. However, what they did create was a Constituent Assembly (asamblea constituyente).

A constituent assembly is only appropriate when there is no pre-existing constitution, for instance in the French revolution, the Russian revolution, the Venezuelan independence, and the Estonian independence in 1919, since in those cases the previous condition had been a monarchy without a constitution, or a situation of being a part of another State. In contrast, Finland did not hold a constituent assembly after independence, since they had retained the Swedish constitution during the time Finland was a Grand Duchy of Russia. Nor did Estonia hold a constituent assembly at the second independence in 1991 (they instead held a constitutional assembly to write a new constitution). As a final example we can take Iceland: No constituent assembly was held at independence since they continued with the (slightly modified) Danish constitution, until they eventually held a constitutional assembly to modify the constitution without breaking the constitutional order.

It is possible that the similarity between the words “constituent” and “constitutional” has been exploited on purpose in order to confuse, and to get away with the juridical coup d’état en Venezuela in 1999. It is, however, impossible to deny that it was a coup d’état, and that ever since 1999 Venezuela has been ruled by a coupster regime.