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Hugo Chavez and the Rule of Law

Hugo Chavez goes to the polls in his second bid to amend the Venezuelan Constitution to eliminate presidential term limits. Should he lose, he has vowed to leave office when his current term ends in 2012; should he win, he hopes to rule for life. Chavez?s success seems likely because he has learned to manipulate the rule of law in his favor.

Chavez? power grab, pursued through perfectly legal channels, exposes the Achilles? heel of the rule of law: so long as you abide by its principles, you can do just about anything, including changing the rules to extend your control. The rule of law, as conventionally defined, requires that laws be clear, open, and equally applied to individuals and government alike. In recent years, it has become the subject of overlapping international consensus, such that dictatorships and democracies from Beijing to Burundi proclaim its virtues. The World Bank and other international donors have poured billions of dollars into improving the rule of law around the world. Everyone likes the principle because it promises procedural order and straightforward implementation of the rules, whatever they might be.

Chavez has been crafty in manipulating this set of understandings. In December 2007, voters narrowly rejected Chavez? proposed constitutional amendments, which included both the abolition of term limits and the expansion of emergency presidential powers. Some human rights groups and the United Nations condemned that proposal, mainly for the low bar to invoking a state of emergency. This time Chavez has been careful to restrict the amendment to the abolition of term limits, and the international community has been quiet. Polls suggest that he will be successful, setting up the probability that Chavez will serve until 2018 and beyond.

There is, of course, nothing inherently undemocratic about constitutional amendments extending the term of leaders: indeed, one can argue that by artificially preventing voters from choosing a candidate they might prefer, term limits are themselves undemocratic. Yet there is something unseemly about a ruler in a democracy serving for life. Democracy is ultimately about processes, not personalities, and so we naturally are suspicious of a ruler who seeks to stay on forever.

From the perspective of the rule of law, the key question is whether rules on presidential terms are properly enacted. In the old days, a Latin American leader bent on extending his rule would simply have replaced the constitution after his bid to amend it failed. Indeed, Venezuelan history is littered with 24 discarded constitutions, second only to the Dominican Republic (29) in its rate of turnover.

Unlike many of his predecessors, however, Chavez was patient enough to wait for another day, paring down his proposal while quietly expanding his control over the media and courts. Chavez is a gadfly and a lightning rod, delivering and receiving epithets with great abandon. Perhaps over time he will ultimately run his country into the ground. But he is smart enough to have figured out that if he follows the rules, he can get away with a lot. Chavez represents a new disturbing kind of ruler for a new age ? at a time when most are praising the rule of law, Chavez understands that he can use it to move toward unfettered power.

Full post as published by The University of Chicago Law School Faculty Blog on February 15, 2009 (boomark / email).