Nullifying the Constitution, One Article at a Time

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Wipe your feet before entering
Wipe your feet before entering
Wipe your feet before entering

Here’s one that’s flying under the radar: in a resolution dated February 13th, the government-controlled Supreme Tribunal gave itself the authority to decide which specific judge will hear which specific “sensitive” case, in 18 out of 23 states in the country, rather than using the long-established method of drawing lots to determine which judge hears a given case.

This is directly contravenes the mandate in article 49, section 3 of the 1999 constitution – you know the one I’m talking about, right? The one chavistas drafted, Chávez campaigned for and for years called the best in the world. That one.

Article 49, section 3 contains a longstanding constitutional principle guaranteeing the right to be tried by “natural judges” – a term of art that precludes judges arbitrarily selected to hear specific cases.

In current circumstances, with hundreds of political detainees awaiting trial on basically political charges, the potential for abuse here is only too obvious. Already in the aftermath of Judge Maria Lourdes Afiuni’s arbitrary detention, due process guarantees were a bit of a husk in Venezuela, but with this they’re tossed out the window altogether.

This stepwise nullification of the 1999 constitution has been going on for so long, it barely even registeres as a blip. Arbitrary decisions that overturn key constitutional guarantees are “normal” in Venezuela.

As early as March 14th, 2000 – not even 3 months after the 1999 constitution was approved by referendum – the court was handing down bizarre rulings that reversed the ordinary meaning of words – in that case, interpreting Article 186’s guarantee of “proportional representation” in the National Assembly to mean that representation in the National Assembly didn’t have to be proportional. (Surprise surprise, in today’s National Assembly chavistas hold 60% of the seats, even though they only got 48.2% of the votes.)

So, in Venezuela, this kind of thing is “normal”. We’re talking about a Supreme Tribunal where judges have been heard to chant pro-government slogans on their feet at their start-of-session ceremony…what did you expect? I think we’re going to run out of room for stripes; we’re going to need a bigger tiger.

But it should. Because democracy means that the power to elect the people who make the laws. Where laws – and the constitution itself – are routinely interpreted to mean the diametrical opposite of what they say, the ability to elect the people who make them becomes meaningless.

1 COMMENT

  1. Quico, Chavistas got 48.2% of the votes in the 2010 election (For comparison, the MUD got 47.2%). But yeah, they control 60% of the seats, long live gerrymandering.

    • Thanks, fixed. I remember that March 2000 Supreme Tribunal decision especially well, because *that* was the moment when I fully realized… “wait a minute, it’s all a farce! these people are going to dismantle Venezuelan democracy altogether…”

      I remember writing about that decision way back then and having people look at me like I was a lunatic. “No chico yo no creo…”

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  2. You are right to highlight this change, which is yet another small way of legalizing the dictatorship. Back in Chavez’s day, things were cruder, but secret. According to One-time Supreme Court Judge Aponte Aponte, Vice President Jaua came to the Supreme Court every Friday morning for a meeting to tell the judges how to decide cases before it. “He threatened us if we resisted” he said.

    Now, they’ll just stream the important cases towards the guy who’s in the tank for their desired outcomes.

  3. “Thanks, fixed. ”

    Well, I expect more. I expect an explicit correction and apology at the top of the post since getting those percentages wrong invalidates your whole argument.

    Signed,

    A PSF

  4. I have read the Resolution. It seems to me that it may be referring to “supplementary judges”, a category that is common in Spain in courts where workload is overwhelming. It is pretty uncontroversial here. Does this sound reasonable under Venezuelan law?

  5. There might be a justification for supplementary judges where the workload requires additional judges to expedite in general the processes of justice , but in this case the reference is not to the judicial workload but to the sensitivity of the cases , which in context means that where there are politically sensitive cases they dont want the risk of just any judge hearing it should they ‘fumble’ it and decide something inconvenient to the govt . They learned a lot from the Afuimi case. !!

    • I am not sure about that. The Resolution says that itinerary judges will be appointed for Border Criminal Judicial Circuits “in light of the amount and complexity of cases” in that Circuit. Why should it be read as providing for the substitution of Circuit judges that are already dealing with those cases?

      • The Border Criminal Judicial Circuits named in the resolution comprise a big part of the country , not just border areas , The thing is that to the extent the resolution can be interpreted or applied in any way (however zany) which serves the governments interest you can be sure it will be interpreted to give the govt what it wants !! A Ccs law firm did a study of how many cases out of thousands had been decided against the govt and they were less than half a dozen ( most of them cases involving a conflict between two govt connected bigwigs ) . Dont bother about the letter of the resolution , instead use your imagination to determine how the reading of any text can be distorted to allow the govt to get what it wants . If there is any case were the court cant decide in favour of the govt without falling into absolute absurdity then the decision is postpopned indefinitely . Thats what happened in the case which gave rise to the indictement and imprisonment of judge Afuimi.. There is no rule of law in Venezuela . thats what all my lawyer friends tell me . .

  6. When will people learn that constitutions don’t work. Name a country with a constitution & I’ll show you a constitution that has failed to limit the govt or secure the people’s rights.

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