Venezuela’s Constitutional Crisis: How Did We Get Here?

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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.

1.

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.

2.

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.

3.

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.

4.

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.

5.

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.

6.

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.

7.

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.

8.

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.

41 COMMENTS

    • Ideally, the arbiter should be the international community, for less of what is happening now in Venezuela we have seen the region to act swiftly. For now, the burden rests on the military, are they going to violate the will of those who voted on the #6D? They would only, with the support of a complacent region, which I doubt.

    • Good catch!

      Artículo 233. Serán faltas absolutas del Presidente o Presidenta de la República: la muerte, su renuncia, la destitución decretada por sentencia del Tribunal Supremo de Justicia, la incapacidad física o mental permanente certificada por una junta médica designada por el Tribunal Supremo de Justicia y con aprobación de la Asamblea Nacional, el abandono del cargo, declarado éste por la Asamblea Nacional, así como la revocatoria popular de su mandato.

      It wouldn’t be any more arbitrary than what the Electoral Chamber did yesterday…

    • Not necessarily, the PSUV is claiming that the TSJ can determine the place for the President to present the “Memoria y Cuenta” to the AN. This place could be anywhere (el TSJ, Miraflores, Ave. Bolivar) but it has to be in front of the elected AN, although it would be interesting if the 3 Amazona’s deputies show up for the “Memoria y Cuenta”…

  1. Excellent summary. I would add that the “Supreme Court” made its ruling without hearing any evidence and without allowing the affected party to make legal argument. The “Court” wasn’t really acting as a court at all. The most basic rule of procedural justice, audiam alterem partem, was violated.

    That’s “law” only in CloudCuckooland.

  2. The TSJ moved long time ago from legal rights to legal bending. Beyond all the crap these people are doing, here are few extra things:

    – The TSJ rules on previous ruling by a lesser court. The TSJ does not judge facts or proves guilt/no guilt. The TSJ only rules over legal procedures vices.

    – The TSJ is violating the principle of “Presumption of Innocence” thus you can not do a preventive ruling until judgment demonstrates that someone is guilty.

    – Even if somehow the TSJ ruling over the 3 deputies stands a legal challenge. The TSJ cannot have preemptive ruling on the acts of the AN. That is equivalent to tell someone that your guilty until proven innocent.

  3. It appears the plan is to delegitimate the AN and bypass it entirely regardless of how illegal such actions are. The gamble there is that it would also render null and void the popular vote that elected this AN. How this will sit with voters not to mention the army is one big and potentially volatile question mark.

  4. A good summary of the situation. I can’t explain myself why the CNE controlled by the government accepted 112 and then some weeks later they used the TSJ to get rid of that majority. It doesn’t matter if they want to do the right thing or the wrong thing, nothing makes sense in that government. I don’t think Maduro will do it but I hope he dares to go to the AN, an egocentric malandro with 112 people against him in the same room is something that deserves to be watched.

  5. There’s so much going on here, it’s real cause for worry.

    What we have is an elected body confronting an unelected power and an elected person with power, and this is a dangerous mix.

    In the middle, and not wanting to be there is the military whose top brass have everything to lose, while the COMACATES (Comandantes, Mayores, Capitanes y Tenientes) that basically forced the Defense Minister to honor the results of DEC 6 are looking on and probably losing patience with their superiors and the politicians they report to.

    It now becomes clearer why Defense Minister Padrino Lopez came out and said a couple days ago that the military should not be an arbiter, a message I now believe was meant for the COMACATES and not for the general public nor the political class.

    Juan states to watch this space, and we should, but whoever can should also watch Fuerte Tiuna, the bases in Maracay and Barquisimeto (amongst others) and the Naval Building in San Bernardino. What happens there when the inevitable confrontation comes will define the next 20 years in Venezuela.

    There is a part of me that wants the crisis to come to a head sooner rather than later, but another part of me cringes at the thought of the blood that will likely flow because of it.

    • But can the military stay out? The economy is collapsing around them, hyperinflation is TERRIBLE, people go hungry. Moreover, will the military become a stooge to the impending economic apocalypses?

      Let’s not forget that the vote held last month was a referendum and Chavismo was clearly rejected. And they were clearly rejected because of the economic hardship, so will the military double down on this economic madness?

      • How can they stay out if push comes to shove?

        That’s my point. How much can they pretend to remain apart when the fit hits the shan?

  6. To make it a complete Circus, I say the AN should temporarily unswear the 3 disputed assemblymen (becoming undisputedly legal) and then decree that since the latest TSJ judges where elected breaking the rules all future decisions by the TSJ are now null and void until such magistrates are expelled.
    How would this be ANY different than what the TSJ is trying to do?

    • You can’t “temporarily unswear”. It’s like being “sorta pregnant”

      If they do remove their investiture, and that of their “suplentes” then a new election needs to be called as those seats cannot remain unfilled.

      Risky move, you never know how a new election turns out.

  7. “5.
    Right before taking over the National Assembly on January 5th, the TSJ agreed to hear a case on the election in the southern state of Amazonas.”
    To me this reads as if the TSJ had taken over the National Assembly on Jan 5th. I assume this is not what was meant. Correct?

  8. Great synthesis of such an unusual, surreal, arroz-con-mango situation. Only in Venezuela..

    “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. ”

    Well since of course he’s not going, the constitution will simply have been violated for the 2,352th time in a few years, so WEIN? (what else is new); or ‘que es una rayita mas pa’ una Zebra?”

    As long as the TSJ and the Military are thoroughly corrupt.. “ay.. y ahora quien podra ayudarnos?” El Chapulin Colorado! or the laughable, virtually useless Almagro, or perhaps dear Ban Ki-moon? Bring John Kerry and the 17 Ex-Presidents to the rescue!

    The Mudista semi-controlled AN will have to fight about Eight (8) different Powers: 1 contra 8: As a bitter appetizer, 4 or the 5 branches of Desgobierno that Juan mentions above: all super-controlled by the criminal regime. En then some..

    To that formidable list of Chavista foes, the Opposition will also have to face other huge powers: PDVSA, and all the other Corporate Thugs (Corpoelec, Derwick, etc, etc). The oligarchy of Billionaire Bolichicos with tons of real power and all the Money, Influence, all corrupt Chavistas with a price-tag either from the CIA or the FBI or the DEA, or Prague courts.

    Add to that a largely regime-controlled Media. Another huge weapon against the opposition. People forget internet connections inside Vzla are among the worst, and most people don’t have laptops and phones to watch independent news. TV, radio: mostly controlled. The brain-wash continues, from early school, to thousands of new Chavista posters in the streets.

    Many also forget that “el pueblo” did vote in good measure against Maduro/Cabello, but they still love Chavez, Chavismo, ‘socialism’, and even Castrismo. Thus, the situation is even more volatile, because a majority of the population do not really like the MUD. They Idolize Chavez, today. Winning their affections will be crucial. Hopefully one day they will begin to understand.

    The Police? Sebin, Guardia Nazional ? The Narco-Gangs with tons of power? All Chavistas.

    Finally, the MUD has to face yet another formidable enemy: 37 “Ministerios” with about 5 Million Enchufados. People that, one way or another, are either leeching, stealing, or just benefiting from good salaries and little work, plus special “favors”. Complicit, or at least dependent in many ways to the regime.

    So 1 against 9? Not even the “pueblo”, let alone the military, are for the MUD. Ay Chapulin… lo que viene es candela! Colas mas largas y bien sabrosas.

    • If you corner somebody, she’ll try to escape through the path of least resistance, and if she’s desperate enough, you will become the path of least resistance.

      chavizmo’s taking away all the possible exits for people in Venezuela, there could be 5-more million enchufados, but reality’ll hit them too, all because less than 1000 bolimierdas didn’t wanted to stop stealing.

    • It doesn’t mean anything, the MUD is simply taking the decision on how to respond, hopefully, the next step to deal with the TSJ.

      The direction seems clear: Both the VicePresident and the President of the AN said that they weren’t going to accept what the TSJ says. The how, in the other hand, takes careful consideration.

  9. OT but this will add more gasoline to the situation. Today there are the fewest number of ships discharging in Puerto Cabello that I have ever seen and I have been keeping track of this since back in 2006. I have never seen this few ships discharging or expected. The food situation can only get worse in the next few weeks.

  10. The chavernment was demoralized going into the election and stunned by the outcome. Quite possibly the CNE members who announced the “proclamation” didn’t realize what the 112 seats for MUD meant. Or if they did, couldn’t think of anything to do about it, in view of public release of the vote totals.

    The present contretemps began later, after chavista leaders saw the looming danger.

  11. The more reasons we have to push for a new Constitution with a new system of government. These lame-duck sessions are a vestige from ill-conceived polities. We need a parliamentary republic and we need a coherent constitution. Fixed-terms, fixed election days, Parliament dissolves, short campaigns, the new Parliament reconvenes quickly and appoints a responsible government. One district, no gerrymandering. Maybe an upper chamber for the federal entities to have a voice in the debate but no equal bicameralism. The funcions of financial control, electoral oversight, and the appointment of judges and justices can be done by special arm’s-lenght commissions of the Parliament. A legal system that’s predictable and largely self-regulating (stare decisis – common law) is the only desirable pillar of a judiciary, less you end being ruled by unelected judges … these direct appeals to the highest court are a surefire way to erode democracy.

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