It took them over a year to decide, but the sentence was politically well-timed. The ruling was published 12 days before the referendum, which ultimately, allowed the late President Hugo Chávez to achieve one of his greatest aspirations: to amend the Constitution to ensure the possibility to remain in power indefinitely.
On February 3, 2009, the Constitutional Chamber of the Supreme Court (TSJ) determined the legality of the referendum on the amendment of the Constitution to include the indefinite re-election of the head of state and all elected offices.
The request for interpretation by the Supreme Court, filed on December 11, 2008, was based on the following fact: on December 2, 2007, the majority of the population voted against a proposed reform that included the proposal of unlimited terms, albeit only for the office of President of the Republic. Article 345 of the Constitution states that “any initiative for constitutional reform that is not approved, may not be presented again during the same constitutional term of the National Assembly.”
But Chavez would not take “no” for an answer in his aspiration to remain in office indefinitely, and proposed a referendum to be held on February 15, 2009. On the question about the constitutionality of this initiative, the highest court of the country – with a presentation by Justice Arcadio Delgado Rosales – endorsed the proposal of the ruling party and shielded the electoral process.
According to Delgado Rosales, the “constraint” imposed on the reform cannot be extended to the amendment, “whose main purpose, precisely because of the low intensity of constitutional changes that may entail, is not subject to the same requirements and the same restrictions.” He also emphasised that this time the indefinite re-election included all elected offices and not only the president, as was proposed in 2007.
The reasoning of the presenting judge was opposed by fellow Justice Pedro Rondón Haaz, who disapproved of the idea of unlimited terms on the grounds that it jeopardises alternability, and warned: “The possibility of continuous successive re-election cannot be submitted again to those who already expressed their decision within this constitutional term.” However, most judges bowed to the orders of the Government, approved the referendum on the amendment and paved the way toward an eternity of Chavez in Miraflores.
Extract of the judgment
(…) The elimination of the grounds of ineligibility for public office based on previous terms in office of any citizen does not disrupt in any way the principle of alternation in the exercise of power. In fact, the alternating nature of our system of government (…) is not a mechanism for allocating quotas of power through which some leadership must necessarily decline in favour of other legitimate options, but, on the contrary, it implies the effective and real possibility for voters (…) to go regularly the polls where various political options in society compete on equal terms, thus giving opportunity to decide whether to reward those they deem as their best leaders or to completely renovate the structures of power when their performance has been poor. In conclusion, this principle ensures that the people, as the exercisers of sovereignty, have the regular opportunity to choose their leaders or representatives. It would only be infringed if this possibility is hindered by banning or failing to hold elections. (…) The possibility of continuous re-election does not alter in any way “the democratic values that form the constitutional law.”