A rare judicial win for the opposition

Carry on now, says Justice Gladys
Carry on now, says Justice Gladys

Article 68 of the Venezuelan Constitution reads as follows:

“Citizens have the right to demonstrate peacefully and without weapons, with no other requirements than those established in the law. The use of firearms and other toxic substances to control peaceful demonstrations is prohibited. The law shall regulate the actions of police and safety organizations when controlling public order.”

If you’re like me, the first thing you’re thinking is “there’s another piece of the Constitution that only exists in theory.” After more than two months of demonstrations, many of them peaceful, the last thing one can allege is that this article, or any sensible interpretation of it, is being followed.

That is why today’s Supreme Tribunal (TSJ) ruling is a big win for us.

The TSJ’s Constitutional Chamber (the only one that actually matters) came out with a unanimous ruling today saying that article 68 is no longer in effect. According to El Universal’s interpretation of the ruling, the police can lawfully attack and disperse peaceful demonstrations that do not have a permit from the corresponding mayor’s office, because those demonstrations are not protected by article 68.

Legal scholars will fret, but let’s face it: article 68 has been dead for months, if not years. No guarimbero, nobody protesting feels less safe now than they did a few hours ago, when article 68 was seemingly in effect. Chavismo does to demonstrations what it wants, when it wants to – be they peaceful or not. Call me a humbug, but today’s ruling doesn’t really change our ever-so-squalid rights one bit.

What today’s ruling shows is that the government feels insecure enough that it needs a unanimous declaration from the nation’s highest judges … affirming it can legally continue doing what it already does, no questions asked.

Now, wavering public safety officials who may be doubtful about the legitimacy of attacking peaceful demonstrations can be swayed … by gently shoving the text of this ruling down their throats.

Discerning judges who may be showing unease towards an increasingly repressive regime can now see that support for the government at the top is rock solid.

Hesitant chavista mayors who don’t know what to do about barricades now know that the TSJ is giving them the green light to do as they please.

Foreign officials daring to call into question the government’s heavy-handed tactics will now get a free copy of this ruling in their Embassy inboxes, with a subject saying “It’s the institutions, stupid!”

And government officials, uneasy at the prospect of dialogue in order to grant concessions to the opposition, has given the MUD one more reason to walk away from the table.

In answering to all of this, I think the TSJ ruling is, ultimately, a response to doubters, a show of force to prove that it has force. Why would they need to do that if not because there are doubts that it has it?

Tell me what you boast of and I will tell you what you lack, says the old saying. To me, a government that has to push the Supreme Tribunal to reaffirm their loyalty to it … is not in the safe place it wants to be in.

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  1. This would be reason enough to end the “dialogue” until any meaningful concessions (incredible that we have to use that word to simply follow the constitution) are made. The MUD was able to say that dialogue and peaceful protests could coexist but now that is legally not the case. The MUD leadership has to be at the front lines of protests not in dialogues that have produced nothing of value. They can’t imprison everybody.

  2. So now, a mayor can use police to close down any demonstration, without giving any reason, or, indeed, because the Mayor belongs to the ruling party and the demonstrators don’t.

    Quite a Constitutional right you’ve got there.

  3. That’s quite a “court”, entering into a pronouncement on all of these constitutional rights, including the rights of free association and expression, without a hearing, without evidence, and on an ex parte basis (i.e. an uncontested proceeding). They just said that the facts were “notorious”. I love it!

    My understanding of what the “court” (my quotes) is saying in a nutshell is that if a demonstration does not have prior authorization from the authorities, they can do whatever they deem necessary to shut it down so traffic can keep moving. Curious that a bolivarian socialist court would put the individual right to pass down a street without delay above collective rights of expression and association….but chavismo in its legal form is full of these curiosities.

    This reminds me of an anecdote someone told be about how a recently defeated chavista alcalde required payment of a bribe to authorize student marches. After the election defeat, said official in charge of the permits was told that the practice of paying bribes to authorize demonstrations had ended. But I guess in Chavista land, its still the people with the money who have the right to free speech….what’s next on the chavista constitutional docket: a Hummer is imbued with the rights of a “person”?

    • I’m also struck that the right to pass without delay down a street in maybe one of the most congested places in the Americas… also trumps the right against arbitrary detention…this is the most advanced tribunal of its time!

  4. I was confused by the circuitous logic this post. These tweets simplified the matter:

    Gerardo Blyde ‏@GerardoBlyde
    Esa sentencia del TSJ condicionando el derecho a la manifestación pacífica parece un estado de excepción suspendiendo el derecho

    Gerardo Blyde ‏@GerardoBlyde
    La insólita sentencia del TSJ deja sometido el derecho a manifestar a la discreción de cada alcalde limitando completamente su ejercicio

  5. Can Opposition mayor’s can now offer constitutional protection to the protesters by issuing a permit?
    Does this ruling mean that article 68 is in force if the protesters have the mayor’s approval?

    Yeah, yeah, I’m dreaming.

    • Brilliant! And if anyone has a problem with that…the TSJ says you can lock the bastards up! I like where you are going with this….

  6. Juan, while I don’t dispute the spirit of your post, I am afraid you are misinterpreting the report from El Universal. Nowhere in the article does it say that the police are now allowed to use force to control the protests. The ruling’s rub is in the detail of freedom to protest with “no other requirement than required by law.” Here is the link to the decision: http://www.tsj.gov.ve/decisiones/scon/abril/163222-276-24414-2014-14-0277.HTML. I honestly don’t know in exact detail what those requirements are. The decision mentions for instance a requirement for stating in advance the location of the protest. I am not sure that an individual who wants to walk up and down the sidewalk with a sign must do so. Of course, I understand that the TSJ is just a puppet of the government, and that this ruling is designed to intimidate protesters. But no honest judge or public servant would interpret this ruling as carte blanche for the government to exercise force against protesters.

    • “Por lo tanto, cualquier concentración, manifestación o reunión pública que no cuente con el aval previo de la autorización por parte de la respectiva autoridad competente para ello, podrá dar lugar a que los cuerpos policiales y de seguridad en el control del orden público a los fines de asegurar el derecho …”

      As I understand it, there is no right of “cualquier” (i.e. any) “reunion publica” (does that mean two people with a sign?, a game of chess in the park?) without prior authorization of the authorities. Granted, you can appeal any decision to withhold a permit to the higher political authority i.e. Governor. But this is not my language so I will defer to the experts…

    • Let me explain it better for you.
      It doesn’t give the government “carthe blanche to exercise force against protesters”, it gives the government IMPUNITY FOR MURDERING PROTESTERS.
      Impunity for what? You could ask? Well, murder doesn’t prescribe, so these bastards could be held for trial and accussed of cold-blooded murder even in 20 years from now, but, having a rule like this, they could claim “it was legal to do anything we wanted” during these protests as defense.

    • actúen dispersando dichas concentraciones con el uso de los mecanismos más adecuados para ello (legal chavista jargon for: puedes echarle plomo a un manifestante así la Constitución diga que no), en el marco de los dispuesto en la Constitución y el orden jurídico.
      That’s pretty much what this decision is about, allowing the use of armed weapons to disrupt protests.

  7. I don’t know why it is a win for us. The government could have done this at any time. Like your argument about how the ruling doesn’t change anything, the fact that such ruling occurred now in the first place also changes nothing. Or it’s just that I’m as pessimistic as the situation of the country allows it.

  8. Juan, this is just sad.

    I am appalled at the opposition leaders: they go to closed door discussions although we know the regime is using that as a pretense. People in Venezuela think the only possibilities are either a cadena (untenable) every time or closed doors. We should insist in live discussion of everything. Without that we are doomed, it’s a complete waste of time. The players are too dirty for anything good to come out of closed door negotiations.

    • Thanks for the link, Lemmy. It is amazing the kind of comments I see there. Some Chileans and others say the Chileans are “los alemanes de Sudamérica”, but it seems quite a lot of the ones writing comments are South America’s most unadjusted Ossis :-p I wrote a response to one of them.

      • obvio, que es chileno.
        Agree, that there are a lot of chileans who have positive feelings towards chavismo. But I think, that this is more emotional and symbolic. We should be careful here. Its not South American. You can observe the same among “Euro kids”. The foreign perception of Chavismo is often very symbolic. A symbol for being against social injustice in South America.
        Now I very most firmly believe that Chavismo isn’t a proper symbol for that issue.
        Regarding international perception the venezuelan anti-chavista opposition has become something like the chivo expiatorio for deep rooted problems of a whole continent.

        When people on the extreme left start to focus a bit closer Chavismo, often they don’t like it. Read last articles of Jan Ulrich in Neues Deutschland. Or Ariel Zuniga in Chile.

        • Depends. I’ve know almost all kind of supporters of the “revolution” abroad. From the clueless that wants to believe there is a socialist paradise somewhere but are basically harmless, to others that not only justify anything, they want even MORE repression and more obvious dictatorship, oh, sorry, “real democracy”, and answer to any criticism with “I wish they go and beat you and your family”.

        • Thanks. I just read something by Ullrich (never had). What he writes sounds very reasonable up to the point where he sees a chance of renovation if Madurismo decides so. It is simply impossible. Its power rests on the military and a corruption carousel.

          Lately I really don’t bother anymore with the Euro kids/??????????/enfants euro/chicos euro. They have no clout. But I do bother with people such as the current minister for foreign affairs of Chile and the like. It seems a lot of the blokes who are in power now in Argentina-Brazil-Chile-Uruguay have a trauma because they were tortured by right-winged dictatorships, so there is no way they will support us, at all…at most, they could feel uncomfortable if Maduro’s troops were beating the hell out of our people too openly…other than that, they are with Chavismo…and the businessmen of the same regions are also happy. You can see even a tiny devaluation of the incredibly overvalued Bolivar was enough to make Uruguayan businessmen incredibly worried about their deals with Venezuela…to such extent that Mujida et alia had to talk to the Venezuelan regime.

          You are right: we are the scapegoat…from their bloody traumas. Y pensar que les dimos cobijo durante la IV República…

          • You are right, Kepler. I wonder about latin american lefties like Dilma. She was tortured by the Brazilian junta in the 70s and yet, will not have the decency to call a Maduro a brute. One would think that after paying with blood for such atrocities, one would curb his ideology at human rights.

            As for other lefties from the 60s (a hand full of uncles in my case). I think the intellectual honesty to denounce Maduro and for that matter Castro, the longest serving dictator-dinosaur for what they are is too painful for them. It would be recanting a belief of 50 years plus. It is like a cleric losing god. For that I must admire Teodoro Petkoff.

  9. I think this was mostly done to counter the announced march to downtown by the student movement.

    The students pretty much signaled they weren’t going to wait for Jorge Rodriguez’ approval (which they know damn well they would never get).

  10. Anybody knows what is the supposed legal explanation for this? Not if it is a good one, but what did they say to justify it? For example, is the bit about “with no other requirements than those established in the law” which has been transformed into “and now the law says you CANT, so suck it”?

  11. I think the last two points are the worst:

    Asimismo, indicó el TSJ que de acuerdo a los artículos 178 numeral 7 de la Constitución y 34 numeral 4, y los artículos 44 y 46 de la Ley Orgánica del Servicio de Policía, las policías municipales detentan una competencia compartida en materia del control del orden público, por lo que esos organismos tienen la obligación de coadyuvar con el resto de los cuerpos de seguridad (policías estadales, Policía Nacional Bolivariana y Guardia Nacional Bolivariana) en el control del orden público que resulte alterado con ocasión del ejercicio ilegal del derecho a la manifestación.

    Finalmente, se estableció que ante la desobediencia de la decisión tomada por la autoridad respectiva de la jurisdicción, la misma deberá remitir al Ministerio Público toda la información atinente a las personas que presentaron la solicitud de manifestación pacífica, ello a los fines de que determine la responsabilidad penal y jurídica que pudiera generarse por la desobediencia a la autoridad y por las conductas contrarias a Derecho, desplegadas durante o con relación a esas manifestaciones o reuniones públicas.

    Something like:

    The first dictates that all local police forces become subordinate to the national police forces, not to their local bosses.

    The second dictates that the leaders of opposition (i.e., anyone requesting permission for protests) are responsible for any misconduct stemming from the disobedience to the authorities in relation to the protests.

  12. I think one makes a mistake in analyzing this from a legal point of view. The problem in Venezuela stopped being legal years ago – the law is simply whatever the governing clique decides it is.

    The TSJ, like every other power in Venezuela, is a political player, and as such one has to analyze their actions from a political point of view. That is why, to me, the show of force by the TSJ – paving the way for further repression – signals that the government is worried about continued unrest in the streets, and/or about the discipline in its own ranks. That is why I view the decision as a positive. Ultimately, the decision will not make the government any more or less repressive, but it does point out the need to clarify to its own people what the elites believe to be the road ahead.

      • Thanks.

        Basically I agree with you – well, who doesnt know that the TSJ will say whatever the hell the goverment wants them to say – but looking at how BADLY they mangle the legal arguments is always good to show clearly what kind of justice there is in Venezuela.

      • Dr. Hernandez nailed it. As for the legal analysis, I agree that while there is probably no use to it, there is some fascination in reading a judgment from the highest court of the land that says 2 plus 2 equals 1.

    • That argument works for people like us – so in that sense you are right. However, it could be used when discussing the situation with chavistas.

    • One last thing: basically, the ruling criminalizes protests, and leaves the right to demonstrate at the mercy of the mayors. But isn’t that already the case? What Jorge Rodríguez has been doing all along – is now legal! Whatever.

      The fact that the government had to *ask* the TSJ to criminalize protests is a sign of weakness, in my opinion.

      • Do you think with this ruling they will start cracking down harder on the protest? And also, maybe this gets off the hook those guardia nacional and Policia Bolivariana officers that have been charged with excessive force?
        I also wonder if this is in someway getting ready for further economic adjustments a few months down the road. Maybe hit them hard today so tomorrow they won’t stand up?

  13. Spurr of the moment reaction fo the news : it seems as if the TSJ wants to provide mayor Rodriguez with legal grounds for requiring that protests obtain his permit before staging protests in his jurisdiction something which protesters were claiming was unnecessary under the constitution . Before the armed goons repressing peaceful protests could be considered outside the law , now , thanks to the TSJ decision they are ‘inside’ it, , doesnt change things all that much as juan correctly says because we ve ceased to be a country where much attention is paid to the Rule of Law , least of all the TSJ . Still its a sign of the desperation of the regime to give itself a much legal cover as it can now that its brutality stands naked before the world. !!

  14. Los Rusos tambien juegan.

    Now its up to see how the resistencia deals with this move. By definition the resistencia should not acknowledge the legitimacy of this regimes actions, TSJ included.

    If their plan was to run a protest into Caracas’s libertador municipality, they should just do so.

    i agree with Juan on this one. The regime’s action is aimed to the internal ranks and for the diplomatic fronts: see its legal to crash protests that are held without a permit….

    Until the Resistencia understands trully its role, and how the regime’s power comes mostly from the attribution of such power granted by the people, they may tip the balance.

    Black swan times ahead.

  15. To consider this a “judicial win” for the opposition is to fall in the “se quitaron la careta” trap. The government does not have a careta. And as you rightly point out, no, none of the protesters feel less safe now than before the ruling. But they certainly do not feel safer, or that they have uncovered a hidden facade of the government. This is just the continuation of the institutionalized repression narrative the country has been living for years now. Nothing positive to be seen here.

  16. Is there a pledge that the President makes, the judiciary make, the mayors, NA make to uphold the constitution when taking office? Is this grounds for impeachment?


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