Constitutional Dismemberment in Venezuela: An Authoritarian-Populist Constitutional Change Mechanism

Abstract

The Venezuelan Constitutional Law provides a framework that establishes material limits to amendments based on their impact on the Constitution's "fundamental principles and structure". The amendment and reform procedures do not apply to changes to the "fundamental principles and structure" embedded in Title I. Therefore, any constitutional change affecting that Title is a dismemberment and an illegitimate modification. This framework was designed to protect the supremacy of the Constitution but was ineffective due to populist abuses that decimate the rule of law. In that sense, the 2007 constitutional reform and the 2009 amendment were constitutional dismemberments that, however, were tolerated by the Constitutional Chamber, which supported the abusive interpretation of the Constitution. Even more, the Chamber adopted several rulings that purportedly construed loopholes, although in practical terms, introduced illegitimate mutations to the "fundamental principles and structure" of the Constitution. The main lesson from this experience is that the key element to identifying a dismemberment is the effect of the modification rather than its quantitative impact, considering the human rights centrality. A formalistic approach can justify amendments of only a few articles to simulate abusive reforms of the constitutional backbone with detrimental effects on human rights.

Keywords: Comparative and Foreign Law, Constitutional Law