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.

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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.

38 COMMENTS

  1. Excellent post. We know by now that the regime is a system of interlocking complicities. Little sense in trying to dismantle it institution by institution. It has to be dismantled in toto.

  2. It’s posts like this that make my blood boil when people defend chavismo, in spite of their shameful dirty tactics.

    Also, if the government is really going to be kicked in the ass by the opposition on 6D, do you really think they will allow those 13 justices to remain there? As I said, dirty tactics should do the trick.

  3. If only 50% of the pueblo understood or were vaguely aware of 50% what this good post says.. Heck if only more than 20% of the remaining 10 million Chavista adults had the slightest clue of what “Separation of Powers” really means or what it’s for..

    If they had the slightest notion of how Populism and desguised neo-dictatorships are destroying Latin America. If they only could spend 6 months living in wonderful Cuba..

    Most of the 6 Million Maduristas, plus about 10 Million Chavistas and the rest of the MUD “socialista” people probably suspect that the TSJ is rotten to the core, as the Military, the “police”, and the stinking “parlamento”, of course. But either they participate in the massive corruption, or they benefit one way or another, through countless Enchufes, Tigritos or regalitos.

    But if they understood the true nature of the beast, just a vague idea, the corrosion of every Republican institution, the unstoppable decadence of a system without checks&balances, or adequate education, the galactic bleeding through PDVSA or Corpoelec or bogus “Vivienda” contracts, or through the abysmal “Control de Cambio”, the repercussions of a massive Chinese debt for decades to come, if they were even remotely aware of what articles like this one reveal..

    But they have zero clue or are too deep in the mega-guiso, or both.

  4. I honestly do not see any path to reconstitute the government that does not involve some sort of break in constitutional authority. In a very real sense, we can say that the break in constitutional rule occurred a long time ago, though I am not going to debate which particular event constituted the actual coup, because it doesn’t matter. The point is that the path back to constitutional rule is going to require a transitional regime of some sort.

    But, one step at a time. These elections are necessary to demolish whatever remaining moral/democratic authority the regime still has.

  5. What is curious about these Bolivarians is how cautious they are with their self-preservation, it’s as if they were IT managers trying to prevent ‘hackers’ (the people) from accessing a very sensitive system (the government), as if they knew how important redundancy is to keep the ‘Bolivarian software’ running in the system without any problems. It just can’t fail! If the first layer of security is breached (what would be losing the elections), then there must be a second one to counter us (the TSJ), and then a third one, a fourth one, a fifth one, successively ad infinitum!

    Yesterday, in what was probably a very sad day for Smartmatic, the Brazilian Congress reintroduced paper votes in the elections, but as soon as that happened, the Bolivarians started preparing plans B, C, D, E, etc to f… the people again. Plan B being exactly to use our version of the TSJ to revert the Congress decision. Their modus operandi is exactly the same. It’s nauseating and extremely tiring!!!

  6. The mayority doenst care much about the niceties of a working free government , the civil rights of others , rule of law and other appurtenances of a free democratic society , they care about their wellfare , access to food, to easy well paid jobs , medical help , cost of living , etc, i.e bread and butter issues , its the regimes failure as a functioning state that has them angry , otherwise they dont bother !!

    Its only the middle classes that have some sensitivity for these issues . This spells trouble for our democracy which can only work through a citizenship that values both civic libertarian issues and bread and butter issues , if one large part of the citizenship lack sensitivity for the former values then the basis for the operation of a working democracy is flawed !!

    Getting the mass of the people to care about civic and libertarian issues is a challenge which must be met , the opposition hard core middle class followers seems to feel that if its important to them its important to the others and that clearly is no the case !! Maybe a topic for a future blog, how to deal with this problem.!!

    • Hey, I don’t think Lee Kuan Yew is a troll. Contrarian perhaps but not a troll. He’s neither irrelevant nor off-topic nor is his intent to disrupt. An Opposing view does not a troll make.

      • Actually, I think he is. His task is to disseminate hopelessness into the conversation. Someone else suggest that he is the same person who used to post here under the name “Sledge”, and I suspect that is correct. His message (repeated ad nauseum) is:

        1. Don’t bother voting, it won’t matter anyway.
        2. Venezuelans are all immoral cretins, so nothing can save the country.
        3. The only rational solution is to abandon Venezuela to the thugs.

        Ask yourself, who does this rhetoric benefit?

        • Well those views, to some extent, are held by many Venezuelans and probably by most of the diaspora living in self imposed exile (I assume LKY and most CC readers live abroad). After all, in the past voting hasn’t mattered, the Chavista regime is immoral and a large percentage of the population doesn’t give a shit and so are complicit (See Bill Bass comment above), and one has to make a living if not there then elsewhere.

        • Listen to yourself, and the retarded ad hominems..

          1/ When/where did I write do not bother voting, Einstein?
          2/ When/where did I say Venezuelans are ALL cretins, (except yourself, perhaps and quite a few others in any country)
          3/ Idem.

          Now why did I waste 4 minutes on you?

        • You forgot to mention his constantly bring up Perez Jimenz and other right wing dictators as the kind of government that works with this type of pueblo.

          • On Lee , I no longer read his posts , his messages are boring and repetitive, Simply crafting elaborately worded insults is primitive and meaningless , I simply skip them, I dont need his rants to remind me that there is corruption in venezuela .

            My message above is that for Venezuelan democracy to work it needs citizens that on the whole care for democratic values , not just for their wellfare. We tend to think that everyone cares about these values but the fact is that many just dont give a hoot provided the lead a better life. My point being that if we want a better democracy we bust recognize this problem and work to overcome it …

        • Oh yes, he is big time… Im sure the red neck that lives in “Somewhereville” the middle of Arkansas is fully aware of the principle of separation of powers, as well as all the democratic principles the Constitutional Law preservs… But we Venezuelans are so ignorants and not interested in anything besides “guisar”… Please…

  7. One may also note that by controlling the judiciary, Chavismo can block all efforts to apprehend the looters of the last decade or retrieve their plunder.

  8. Excellent post Alejandro! I just have one comment. I know Venezuela has turned into a crazy polarized country where you are either Rojo Rojito or blue, so attempting to select an impartial TSJ is more of a joke than a feasible thing. However, I must say this really annoys me, it means we haven’t learned anything from the past 15 years. A government that controls all powers will always be corrupt and terrible! We obviously need a new TSJ that is not bough by the current government, but I honestly think that just hiring an all MUD TSJ is also a bad idea that will backfire.

    We need to ensure separation of powers if we ever want to have a chance of becoming a real democratic country with working institutions. It scares me that at the moment many people are just thinking we should come and do exactly what we are criticizing so much from Chavez & CO, win the AN and then take over all other branches of power with a “Pinky and The Brain”‘-style plan to world domination.

    We need to dismantle the current disaster and make sure one party doesn’t control all the power, nevertheless, we need to think about the big picture. Is the MUD diverse enough to ensure separation of power or are we just looking at the beginning of a new Oppo Power Fest? any thoughts?

    • When the rojo rojito dictatorship is finally dismantled, I suspect clearer divisions will be apparent in the current opposition. For now, they need to be united and win back the country from these anti-democratic thugs in power. That task, along with repairing the wrecked economy and criminal justice system, is hard enough without looking ahead.

    • Thank you César. I have the same fear as you and certainly don’t want a justice system that’s partial to the opposition. I don’t know enough about our legal system to come up with an answer. What should the selection process look like in a polarized country like ours? On paper, Justices are chosen by pure meritocracy, but we know that’s impossible here.

      I think I’ll have another talk with Carlos about this topic!

    • Well, I actually think that having a political affiliation does not necessarily mean that a justice will be partisan in his or her judgement; therefore, a “MUD-appointed TSJ” does not necessarily mean that it will be a turbo-oppo vengeful Court as you suggest it might be, César.

      I mean, take a look at the US Supreme Court, for example. Chief Justice Roberts was appointed under Bush, is a Republican, and is regarded to be overall strongly conservative, yet he was the swing vote that upheld Obamacare; while Sonia Sotomayor, appointed under Obama and by all accounts a liberal darling, has voted against the Obama administration several times. So the problem with our TSJ isn’t exactly the political allegiance of the Justices, the problem is that
      they are all a bunch of incompetent partisan turds.

      So, yes, I think that a Justice can sympathize with a particular political current while being (mostly) non-partisan and objective in their administration of the law. Unfortunately, the chavistas have proven to be unable to understand this.

  9. This is a great post in that it clearly shows how the communist criminals use the institutions and rules to subvert the spirit and intentions of the whole liberal democratic / separations of powers objects.

    i agree, party preferences or political affiliations should not mean partisanship in legal matters, and all that, but this level of operations presupposes a minimal of decorum and competency on the chief justice elects.

    Remeber we are talking about CSJ express mandates, a la carrasquero. not career juristas making it to the top of their career ladders and professions after successive proven tracks.

    Chavismo likes keeping the forms for their showcase values, but in the end , all they are is a chain of support for the total saqueo of venezuela.

    One day all their shenanigans will be out in the open and documented, but by then, in their calculations, they would have enjoyed their golden retirements and any state/ inheritances that survive the orgies of abuse, will be enjoyed by their offspring. (very venezuelian btw)

    The challenge remains the same, how to stop the cycle of quitate tu pa ‘ ponerme yo, and structurally changing the incentives of the petro populist state.

  10. […] マドゥロ政府が選挙に負けて最初に行ったのは、現在のチャベス派が多数派を占める国民議会(新国会は来年1月5日より)は最高裁(TSJ)の裁判官12名を新たに任命するというもの。任期は15年。これには伏線があって、選挙前に突然、任期満了まで1年以上残して裁判官がこぞって退職を求めるということがありました。最高裁をより政府の息のかかった確実なチャベス派で固めることで、司法面から議会を押さえようとしています。 […]

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