Gerrymandering the Judicial Branch

Always thinking one step ahead, Chavismo knows that ultimate power lies within the courts. They're not going down without a fight.

If you’ve been following Venezuelan news lately, you know that thirteen Justices from our highest Court (the TSJ) just got permission to retire, more than a full year before their twelve-year tenure is up. In a stroke of obvious serendipity, the replacements for said Magistrates must be chosen by the outgoing National Assembly (AN), which has a guaranteed Chavista majority only until December 15th. Facing incredibly low poll numbers ahead of 6D parliamentary elections, it seems the government is scrambling to pack the courts with loyalist followers, in hopes of preempting an opposition legislature with a reenforced grip over the judicial power. 

Which begs the question: How compromised is our justice system?

Well, this particular batch of Magistrados was named in 2004, following Chávez’s clash with the previous court after they ruled that the events of April the 11th had been a mere “power vacuum”, rather than a coup d’état.

An enraged Chávez used his simple majority in the AN (you read that right, his) to illegally reform the Organic Law that regulates the TSJ, expanding the number of Magistrates, and appointing the first entirely chavista court, whose “revolutionary affiliation” would be, as per the government’s own account, “more than guaranteed.” The move prompted Human Rights Watch to issue a memorable report that remains prescient to this day.

Since then, the TSJ has never, not once, in any single case before its docket, ruled openly against the government. They’ve interpreted the Constitution in twisted ways, favoring the ruling party on each and every whim. If you are not in the government, the TSJ has but two words for you: “recurso inadmisible”.

Among the recent group of retirees, the most notable is Luisa Estella Morales, who (in)famously ruled that the presidential swear-in is just a formality, and enabled Maduro to simultaneously be Chavez’s Vice President, interim President, and presidential candidate in 2013. As fate would have it, her nephew just happened to be caught in fraganti trafficking cocaine not long ago. Morales has long held the belief that the separation of powers weakens the state, so it makes perfect sense that her family joined the Executive in its national crusade for promoting a Narcostate.

Some of the other joyitas hoping for early retirement are Francisco Carrasquero, a former President of the Consejo Nacional Electoral (CNE), famous for coining the term “tramparencia,” a freudian slip mixing the words “transparency” and “dirty trick;” Marcos Tulio Dugarte, whose brother is currently chief of government of the Distrito Capital; and Deyanira Nieves Bastidas, who was involved in Leopoldo López’s fraudulent trial. Get the full list here.

So, if the chavista AN approves the nominations of 13 new Justices —most likely violating legal procedures and the Constitution— would an almighty opposition AN be able to annul such appointments?

“Not so fast,” says Carlos García Soto, director of Universidad Monteávila’s Law School. “The Tribunal Supremo de Justicia is the most powerful institution in Venezuela, and it can nullify any decision made by the Parliament.” Sadly, even if the opposition gets the much-coveted supermajority, it won’t be able to dismiss current Justices without an intervention from the Poder Ciudadano (dream on, Quico).

Even though, on paper, the TSJ is currently the most powerful institution in the Venezuelan government, traditionally it has been politically weak, and servile to both the Legislative and Executive branches. It remains to be seen what will happen when confronted with a solid, opposing AN.

Odds are, we might not even get to see that showdown.

According to an El Nacional source, only three out of the thirteen Justices have legitimate personal reasons to retire, and Chavismo is pressuring the other ten to leave their posts in what seems like a desperate tactic to fast-track their successors’ nominations. It’s not going too well, though: apparently, internal disagreements run deep within chavismo and some justices don’t want to yield. The AN commission in charge of the appointments has already extended the deadline for applying for the nominations twice. Perhaps the Chavista bench of Parliament, currently juggling internal dissent and a faltering reelection campaign, may just run out of time in choosing red Magistrados.

And given recently notorious defections of justice system agents who claim they’ve been coerced into doing the Executive’s bidding, we should not discard that some Magistrate resignations could amount to dodging a very big, and very certain accountability bullet.

If the Justice nominations process remains at a stalemate, an opposition-controlled Parliament will be able to appoint new Magistrates next year. Even a simple majority will be enough, provided they muster the patience to reach a fourth session (see Article 39 of the Ley Orgánica del Tribunal Supremo de Justicia).

Does this mean we have a chance at getting an independent Judicial branch if the opposition wins the elections?

A more balanced one, at least, is in the cards. From a total 32 judges, the opposition would be able to name 13, plus a couple Adeco justices that uncle Henry snuck by last year. It’ll be neck to neck.

Regardless of what happens, I think you’ll agree with me that the time is ripe to free our institutions. The TSJ has been overtly serving the ruling party for over fifteen years. It’s been so long that we’ve become numb to the decay and demise of our justice system.

My generation knows nothing else.

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