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.
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.]
Change nothing else in the law.
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.
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