I was gratified to see that MUD Secretary General Chúo Torrealba seems to be a loyal Caracas Chronicles reader: his plan to double-down on court-packing if the TSJ begins to block the new parliament’s agenda is cribbed directly from these pages.

Today, I’d like to offer a refinement on this concept.

First, though, let’s remind ourselves why this is a problem that must be dealt with. The heart of the matter is the TSJ’s Constitutional Chamber, which is more powerful than the Tribunal it’s technically a part of. The constitution grants the Sala Constitutional virtually unlimited powers to declare unconstitutional any act taken by the National Assembly. 

Expanding the number of justices on the Tribunal once again could be an elegant solution to this conundrum. But there’s a chicken-and-egg problem here: the existing Constitutional Chamber could rule any reform to the TSJ law unconstitutional. So the TSJ needs to be re-packed in a way that is impossible for the Constitutional Chamber to find  unconstitutional.

How?

Let’s go back to basics. The Tribunal’s original packing took place on May 20th, 2004, when President Chávez signed a reform to the Supreme Tribunal law expanding it from 20 to 32 members. Since then, TSJ has literally never ruled against the government.

The key bit to the 2004 reform was the way it changed Article 2 of the Ley Orgánica del TSJ, which ended up reading:

The Constitutional Chamber is made up of seven (7) justices, and the Political-Administrative, Civil Cassation, Criminal Cassation, Social Cassation and Electoral Chambers are made up of five (5) Justices each.

[La Sala Constitucional estará integrada por siete (7) Magistrados o Magistradas, y las Salas Político Administrativa, de Casación Civil, de Casación Penal, de Casación Social y Electoral estarán integradas por cinco (5) Magistrados o Magistradas, cada una de ellas.]

Of course, 7+5+5+5+5+5=32. (The old law had been 5+3+3+3+3+3=20.)

So here’s some advice for Julio Borges and Henry Ramos Allup as they try to deal with a recalcitrant Constitutional Chamber. Don’t get golosos. When you reform the TSJ law, you should literally cut-and-paste the 2004 reform, changing just one number:

The Constitutional Chamber is made up of fifteen (15) justices, and the Political-Administrative, Civil Cassation, Criminal Cassation, Social Cassation and Electoral Chambers are made up of five (5) Justices each.

[La Sala Constitucional estará integrada por quince (15) Magistrados o Magistradas, y las Salas Político Administrativa, de Casación Civil, de Casación Penal, de Casación Social y Electoral estarán integradas por cinco (5) Magistrados o Magistradas, cada una de ellas.]

That’s it.

Change nothing else in the law.

Really nothing.

Dare them to declare unconstitutional the exact same text that made them all powerful. If for no other reason than to kick back and laugh at the jurisprudential contortions they’d have to engage in to rule it unconstitutional.

You have power now. Use it.

But use it smart.

27 COMMENTS

  1. Amazing that the Supreme “Court” can apparently declare a law unconstitutional without giving any reasons. That really amounts to not being required to justify its decisions at all.

    Maybe the new law creating more justices should also require that when supporting constitutionality, and when opposing it, written reasons must be given.

    The comparison between the validity of the dissenters’ and the upholders’ reasoning on constitutionality of the various proposed laws would be illuminating to the public.

    • My understanding is that under Venezuelan Law all sentences have to be ‘motivated’, meaning that they must state the legal reasoning behind the decision , the lack of this must element may nullify the decision …

  2. There is another option no one have spoken about so far: what if the National Lawyers Federation suspend the license to each and everyone of the recently invested magistrates of the TSJ for clear violations to the Constitution on their postulations and election in the National Assembly?

    • Most Constitutions do not require that judges be in good standing with the relevant bar association, precisely to insure that back-door pressure not be used to disqualify judges.

      • Even if it doesn’t automatically rule them out of the Supreme Court -and it might-, that would be a clear message to the military and the international community, meaning they have no support at any level outside the PSUV. Time to start playing a little tougher.

  3. I don’t see how chavismo would pasar roncha trying to justify why such a reform would be unconstitutional, Jim Luers could draft that decision in five minutes. Now, having to refuse title to Mision Vivienda recipients… that’ll be fun to watch.

  4. “When you reform the TSJ law, you should literally cut-and-paste the 2004 reform, changing just one number:”

    One of your best ideas yet! Keep it simple in order for the world press to explain to an outside audience the drama currently taking place in the courts. Nothing has changed (!) in Venezuela, except those holding political power by the vote of the people. Good stuff!

  5. It’s a smart move. If they declare it unconstitutional, you can use that ruling to demonstrate the change that gave them power itself was also unconstitutional, therefore all the 45,474 ‘rulings’ they made since 2004 are to be questioned.

  6. Quicos Razor – keep it as simple as possile
    Totally agree albeit culturally for a Venezuelan this is hard
    Venezueans love complications. Ask any one to explain something in three bullet points and watch them suffer….

  7. I think its easier and smarter to just return the Tribunal to its original numbers, that way it will be necessary to re-elect the judges and problem solved, a simple back to the basics

    • That would be ponérsela papita a la sala constitucional – they’d argue (with some justification) that you were in effect unconstitutionally removing all 7 justices without an informe from the Poder Ciudadano, which is what the constitution mandates…

          • Esta Sala Constitucional, administrando justicia en nombre de la República, decide:

            1. ANULAR el artículo 2 de la Reforma de la Ley Orgánica del Tribunal Supremo de Justicia por considerar que el número uno (1) posee una forma fálica que indica subrepticiamente la presencia de un cetro real o cayado de pastor; como tal, este glifo con la forma anteriormente señalada atenta contra los principios fundamentales de la Constitución de la República Bolivariana de Venezuela (Artículo 1) e introduce un elemento gráfico desestabilizador del ordenamiento jurídico. Un elemento inspirado en los principios del constitucionalismo liberal, de presunto carácter universal, cuyo propósito último es mantener en sometimiento del gran capital a los pueblos del mundo que han decidido ejercer la soberanía sin cortapisas de ninguna especie.

            😉

  8. “…jurisprudential contortions they’d have to engage in to rule it unconstitutional.”

    One… I doubt they would bother themselves to justify it. They will rule it unconstitutional without explanation. If you press them on it, they will respond that they don’t have to justify themselves to a bunch of “burguesias, esqualidos, y criminales, ya!”

    It may be our Achilles Heel, that we keep looking for and expecting rational and logic when our opponents are impervious to such niceties.

  9. If the Tribunal cock-blocks the new assembly in every possible way, then refuses to provide legally cogent explanations for absurd and illegal decrees, MUD can’t declare to the world that the the will of the people is being ignored and in fact betrayed unless a somewhat free press can declare to the nation what the hell is coming down, in language plain enough that all can understand. So perhaps the first order of business is to get some opposition news channels, radio stations, and newspapers up and running to the word can get sprayed far and wide.

    Basically, if the public is made totally aware of how the Chavistas are doing noting but battling to hold onto power, rather than addressing the crisis, and moreover and blocking attempts to move the country forward, the bottom will fall out of the revolution in no time.

  10. […] This simple reflection stayed with me since then, and I go back to it every time Venezuela is subjected to an injustice. Each time the opposition is tempted to flick the chip off its shoulder. It stayed with me during Chavez’s abuse of public funds to finance his personalistic project, and it stayed with me during the 2014 protests, when the disproportionate and criminal response of the Government produced several deaths. And I thought of it again reading Quico’s cretinous tirade about re-packing the Supreme Tribunal. […]

  11. Question

    What would be the total number?

    15 + 5 + 5 + 5 + 5 + 5 = 40
    La Sala Constitucional estará integrada por quince (15) Magistrados o Magistradas, y las Salas Político Administrativa, de Casación Civil, de Casación Penal, de Casación Social y Electoral estarán integradas por cinco (5) Magistrados o Magistradas, cada una de ellas.

    Isn’t this the same thing? since there are already 32 pro-government magistrados. There would be only 8 left to appoint.

    Shouldn’t be something more like this?
    La Sala Constitucional estará integrada por siete (20) Magistrados o Magistradas, y las Salas Político Administrativa, de Casación Civil, de Casación Penal, de Casación Social y Electoral estarán integradas por quince (15) Magistrados o Magistradas, cada una de ellas.
    20 + 15 + 15 + 15 + 15 + 15 = 95

    In that way there’ll be 32 already in office and 63 new to appoint. Also, two thirds of 95 is 63 as well. Good number to seal the deal.

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