Does up mean down in legalese?

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Once in a while, in the privacy of my own home, when no one is looking … I enjoy taking a peek at codes and statutes.

I did it again today. See, one of the more recent controversies the opposition is embroiled in is a legal one – the appointment of PSUV Congressman Carlos Escarrá as General Prosecutor Solicitor General.

As can be expected, chavistas rallied around their candidate after Hugo Chávez expressly asked for him to be appointed. And in typical knee-jerk fashion, the opposition voted against the appointment. Their main argument was that Escarrá was too partisan.

You can say a lot of things about Escarrá – brash, repulsive, and at times, intellectually dishonest – but as far as I know, he has been widely regarded as some sort of expert in Administrative Law for a long time.

Yes, he is hyper-partisan, but who isn’t these days? It seemed to me this was a battle not worth picking. Getting Escarrá and his acerbic verbiage out of the National Assembly qualified as a silver lining in my book.

The opposition, though, has decided to double down. Today, Copei President Luis Ignacio Planas tweeted that Escarrá’s appointment was “fraudulent” because the law expressly forbids “members of a political party” from being appointed SG.

This tweet peaked my interest, so I decided a quick look at the law was in order.

The law, in its articles 38 through 41, says the SG has to be Venezuelan, not related to the President, and a lawyer with a certain level of prestige and academic qualifications. It also says the SG cannot dabble in other non-academic activities, be they public or private in nature.

It says nothing about political party memberships.

Some have argued that Article 249 of the Constitution says that the prerequisites for an SG candidate are the same as those for a judge in the Supreme Tribunal. But the Supreme Tribunal Law, in Article 7, clearly states that in order for someone to be a judge, they have to resign membership in any political party. It doesn’t say you need to be unaffiliated in order to be named a judge.

Maybe I’m not looking at the right articles in the law(s). Maybe I’m too ignorant, not privy to some obscure interpretation of another statute. I’m perfectly willing to accept any of these explanations, and will happily update this post in case I am proven wrong.

But until that happens, my impression is that any member of the MUD making the argument that Escarrá’s professed chavismo is a legal impediment to holding this office … is full of hot air. And if there is one thing we cannot afford anymore, it’s to have habladores de paja as mouthpieces for the opposition.

1 COMMENT

  1. Hey JC,

    I believe “Procurador General” translates to “Solicitor General” based on the similar office in the US. Both jobs entail legal representation of the government: in essence, the attorney for the government.

    Working by analogy, we would note Ted Olson was Solicitor General under Bush I. And yes, he was highly partisan so your point is well taken.

    On the other hand, the Attorney General (the Nation’s chief prosecutor) is expected to be be politically impartial and basically, uphold the law. In cases where s/he cannot (Watergate & Clinton come to mind), a special prosecutor is appointed.

  2. I agree. I don’t understand why the Attorney General should not have party affiliations. He is basically the lawyer for the executive government. It makes sense for him/her to share the government’s ideology and privileged information.

  3. Actually, in most countries except the US the Attorney General is equivalent to Solicitor General. In the US though is more like a prosecutor. The “Procurador General” office in Venezuela is akin to the Solicitor General while the “Fiscal General” is more similar to the US Attorney General.

    So, I understand why the “Fiscal General” should be independent but I don’t see why the “Procurador General” should.

  4. Copei is talking a huge amount of straw recently. First the paranoid hissy-fit about the Census, now this.

    If there’s ONE office of state where Partisanship is basically appropriate, it’s Solicitor General. He’s just the Executive Branch’s chief legal counsel. There’s no constitutional reason why he shouldn’t be a partisan.

    • I don’t think doubting that Hugo Chávez’s government’s –having abused CNE data by creating the infamous Tascón & Maisanta lists– proper use of census data can be sincerely described as a ‘hissy fit’. They are playing on a genuine fear that forms part of the Venezuelan opposition, if only in an oblique sort of way. After all, many of the questions sound suspiciously like the prelude to confiscations like the ones we have become inured to of late.

      As regards to my participation in the census, I will refuse to answer any and all questions that trespass the limits of privacy.

      • Chévere, we’ll end up with an undercount of oppo heavy areas, which translates to fewer state resources for those areas, less parliamentary representation, and the statistical erasure of the anti-Chávez part of the population. THAT’ll show ’em…

        • Funny, I thought oppo heavy areas –and the rest of Venezuela, for that matter– were already under-funded, under-represented, under-policed, pathetically under served by public services such as transport, health, water or electricity, over-taxed, over-burdened and tyrannized by an unrepentant mob-government which even today refuses to acknowledge that we share the same country, as the verbally incontinent Chávez continually reminds us.

          As for the value of Chavista statistics, after 13 years of observing them, you might agree with me in that they are hopelessly manipulated into oblivion.

          I doubt this timid protest will have a major effect, but there it is …

  5. I agree, the Procurado is going to be the Cabinet’s lawyer, be at every Cabinet meeting, you can’t expect him to be someone independent. These are the sily fights the oppo gets into that are a waste of time and useless.

    • I guess what took me an entire post to write and argue about … took Octavio a single three-line paragraph to explain. Damn it Miguel, quit making me look futile!

      • And yet somehow the Government felt -while brandishing one of the foremost Constitutional Law brains in the country- that they had to present Escarra’s resignation from the PSUV. Why did they cave on the matter? Is there perhaps a sub-legal precedent that Mr. Planas -and Mr. Miguel Rodriguez- are privy to? Escarra could have barked otherwise…

        In any case, it is not a central “issue” for the Unidad, and it is not framed as such… I would suggest an article about Escarra’s anti-Constitutional and pro-Revolution statements: let us be reminded that as Solicitor General he not only defends the Republic against foreing interests, but also defends the State against its citizens (and, as he has said, he’ll defend the revolution against its internal enemies).

        Moreover,could this also be an issue on Aragua politics, a card the government is seriously playing: Escarra was president of PSUV in the center of the country… How does he fit into the Didalco Bolivar fight against Ismael Garcia? Wasn’t he considered as a possible candidate for the Governorship, given Rafael Isea’s poor numbers? Aragua is the most important federal entity -barring the DC and Merida- still in the hands of the PSUV.

  6. Well, I looked at the issue too, looked at the law and what I just said was my conclusion of why it was a non-issue. You filled in the details. It’s good to have them in writing somewhere, so nothing futile about it, on the contrary.

  7. The appointment of Escarra is legal. I agree MUD and COPEI should pick their fights more carefully. Having said so, Escarra is a spineless, shameless scumbag that spent all his time in the national assembly sucking up to his boss to get a position like the one he got. It is a disgraceful spectacle to see how this mob-style government rewards those who suck up the most and kiss Chavez’s ass with more fruition. There, I said it!

  8. In a society with institutions, these work to preserve the Constitution, or should at least pretend to. Enter chavismo and the “Revolutionary” government.

    The Procurador plays an important part in this, counseling the government, with legal advice about keeping within Constitutional bonds in its actions and avoiding embarrassment, prosecution, or both.

    Now, I cannot picture this guy, who comes with a “Revolutionary and Socialist Conviction”, who is known for being a master jalabolas EVER doing that FOR ANY REASON. Not that the TSJ would check or prosecute the government in whatever madness it tries, either, hehe…

    Ok, the opposition is wrong in saying that Escarra should not be this or that. It should point out that he will be even more useless (and/or noxious) than Russian if that can possibly be, because Venezuelan institutions are quite decayed by now and he is a jalabolas who will never tell the government to stop, you are breaking the law!

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