Feeling lost amid all the political conflict in Venezuela?
Let’s cut through the fog. Here’s Venezuela’s Constitutional Crisis, in eight easy steps.
In contrast to many other countries, Venezuela technically has five branches of government: Executive, Legislative, Judicial, Electoral and “Citizen” (Oversight). Until recently, all five were fiercely aligned with the governing chavista coalition – in effect, the president directly controlled them.
On December 6th last year, the opposition won close to 60% of the vote in the legislative election, and secured 112 deputies out of a possible 167. This marked the first time in seventeen years that the opposition controlled one of the branches of government. It is noteworthy that the opposition’s total was 112 seats – not 111, mind you, but 112 – because 112 happens to be the magic number that gives you a two-thirds supermajority in the legislature. A two-thirds supermajority has broad powers to change legislation, and even call a Constitutional Convention.
All 112 opposition deputies were announced (“proclamados”) by a National Electoral Council (CNE) controlled by the government. The Venezuelan Constitution says that once an elected representative has been “proclaimed,” he or she enjoys parliamentary immunity – they cannot be tried nor prosecuted unless a majority of the National Assembly allows it – until the end of their term.
In 2004, chavismo packed the powerful Supreme Tribunal (TSJ) with partisan justices, to the extent that the TSJ has never once ruled against the government. Not once. In twelve years. In more than 45,000 cases. Because the Supreme Tribunal largely determines who sits in lower ranking courts, the entire judicial system is now stacked top-to-bottom with fierce chavista partisans.
In the waning days of 2015, the outgoing National Assembly packed the Supreme Tribunal a second time, substituting loyalist justice with hyperloyalist yes-men. The rushed appointment process violated the legal procedures for appointing Supreme Tribunal justices, largely because there was no time to go through all the processes established in law before the lame duck chavista Assembly lost power.
Among the people they added to the TSJ was Christian Zerpa, a chavista legislators who had run for reelection and had lost his seat. The Constitution says that TSJ judges must be non-partisan, but whatever.
Right before the new opposition Assembly majority took office on January 5th, the TSJ agreed to hear a case on the election in the southern state of Amazonas. The evidence offered centered on an ilegally obtained wire tap of a private conversation, where someone from the (opposition) state government claims to be offering voters money in exchange for votes for opposition candidates.
This was enough for the TSJ to grant an injunction (amparo constitucional) annulling the pro-government CNE’s proclamation of the elected representatives from Amazonas. This came despite the fact that the concept of “annulling the effects of the proclamation” of an election winner does not exist in Venezuelan law, a fact established clearly in other TSJ decisions handed down as recently as 2013. Basically, what the TSJ wanted was for the Amazonas three to not be sworn in. This would have disenfranchised Amazonas voters and robbed the opposition of their two-thirds majority.
The opposition leadership in the National Assembly, brandishing their electoral mandate, decided that their legislators had been proclaimed, so they were going to swear them in. They argued the TSJ ruling could not be applied, because it’s not in the tribunal’s power to “deproclaim” someone who has already been proclaimed.
Chavismo was livid, and they went back to the TSJ, claiming the Assembly leaders were in contempt of court for failing to put the proclamation toothpaste back in the tube.
The TSJ yesterday ruled that the National Assembly is indeed in contempt of court, and that any actions it takes in the future will be invalid as long as the Amazonas three (who, let’s say it all together, were elected by their voters, and were certified by a partisan CNE) remain part of the body. It did this before hearing evidence, allowing the opposition leaders of the National Assembly to present evidence and arguments, or granting them any sort of hearing.
We now have a stand-off between an elected legislative assembly backed by the people, and a court made up of extreme partisan chavistas. The government is saying that it will ignore the AN and simply ask the TSJ to perform legislative duties instead.
This amounts to a coup d’etat.
It would be easy to make snarky comments about this circus. However, the situation is incredibly serious. Both sides are entrenched in their positions, and a negotiated solution seems out of the question.
What should we watch in the coming days?
The Venezuelan Constitution says that in the first days of January, the President has to go to the AN to give his State of the Union speech. If Maduro does address the Assembly, he would be conceding the legitimacy of the body. If he does not go, he would be in clear and flagrant violation of the constitution.
A second item to watch: Maduro said in recent days that he would send a law specifying emergency economic measures to the AN for its consideration. If Maduro fails to do so, it would suggest he is simply going to ignore the AN for the remainder of its five-year term.
The situation is immensely volatile. Watch this space.
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