No Amnesty, Internationale

Lots has been said about the Supreme Tribunal's partisanship. Much less has been said about its insane, asinine, Nazi-based jurisprudence.

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Carl Schmitt (right) chillin' in occupied Paris (1943)

After Venezuela’s National Assembly passed the Amnesty Law its majority ran on last December, the Supreme Tribunal of Justice needed a scarce five days – it might have been less, but there was a weekend in there – to declare the law unconstitutional. Much has been said about the court’s unabashed partisanship, not as much about its reasoning.

Legal traditionalists might point out that things get iffy even before we get to the specifics of the decision. In normal courts, things move ponderously. Legal issues are identified, briefed, written memoranda of fact and law exchanged and studied. Often, oral arguments follow.

But in Venezuela, ExpressJustice doesn’t work like that. The Supreme Tribunal don’t need no stinkin’ memoranda, and they don’t need to hear from no stinkin’ lawyers, either. This whole business of listening to both sides being so unnecessary and so terribly burdensome, they hurtle towards their conclusion without consideration of any argument but that of the President, who they quote in full. The TSJ is…well, it’s not like any court I’ve ever been to.

The Law

The pardon power has proven to be an indispensable part of modern constitutions. Usually an attribute of the Executive, it allows a public power to remedy mistakes made in criminal cases. People wrongly sentenced before DNA evidence existed have a moral argument for being pardoned; so too do people wrongfully convicted due to chicanery or prosecutorial misconduct.

The relevant public authority may also choose to grant broader pardons, called “amnesties,” to large categories of prisoner, for example to rebellious military officers, for social reasons such as national reconciliation. Political prisoners are also sometimes amnestied in many countries. Because the possible reasons for an amnesty are not discernible in advance, the constitutional power to declare amnesty is normally unrestricted.

So it is with the text of the Venezuelan Constitution, which follows this pattern.  According to Article 187:

“It shall be the function of the National Assembly:

…..

5.) to order amnesties. ”

Note the word “order” (“decretar”), together with the complete lack of any limiting principle in the Constitutional text.

It would then follow that the National Assembly had ample authority to decree an amnesty and to decide who should benefit.

The Decision

But the TSJ can overcome any interpretive challenge. Faced with the near-absolute clarity of the words of the Constitution, it conjures up its own limiting principle from the doctrines of the Nazi legal philosopher Carl Schmitt.

I’m not using the term “Nazi” here as some kind of generic all-purpose ad hominem – they literally cite the guy who came up with the legal doctrines the Nazis relied on to justify their rule. Known as the “Crown Prince of Nazi jurisprudence”, Schmitt joined the Nazi Party in 1933, served as president of the Vereinigung nationalsozialistischer Juristen (“Union of National-Socialist Jurists”) and was appointed editor-in-chief of the Nazi newspaper for lawyers, the Deutsche Juristen-Zeitung (“German Jurists’ Journal”). A protegé of Hermann Göring, he enjoyed burning books by Jewish authors in his spare time.

The Justices faithfully follow a somewhat dumbed down version of Schmitt’s totalitarian legal theory. Since the Constitution was approved by the people (“das Volk”), we read,  all of its terms must be read in accordance with the people’s “sense of justice”. And because there were victims whose feelings should be respected, amnesty is unconstitutional. The judgment fails to address the idea that the prisoners to be amnestied had no victims, or at least that the National Assembly had a constitutional right to act on this understanding. Assuming that there were “victims” surreptitiously overturns the Assembly’s fact-finding, replacing that with the court’s own.

As you might guess,  Schmitt elsewhere opined that only the Fuehrer embodies the Volk, and therefore his will, and only his will, counted as law. If The Leader was against an amnesty, there would be none.  The TSJ doesn’t go that far. Por ahora.

The use made of Schmitt is sophomoric. The guy might have been a Nazi, but he was a serious philosopher first, and he’d turn over in his grave if he had to read this high-school level bowdlerization of his views. Similar grave-spinning could be expected from others cited, such as American 19th century Hegelian philosopher Roscoe Pound, or God Help Us, Professor Ronald Dworkin of NYU Law School, who died just in time to miss this inane desecration of his life’s work.

It’s bad enough that dead Nazis and Yankees-dearly-departed are both awarded influence over the power of the Venezuelan National Assembly to pardon the wrongly convicted.  The court’s decision also throws in a dozen or so quotes from Spanish-speaking text-writers, too, despite the fact that none are writing about Venezuela, or have any discernible relationship with its constitution. While ordinary rule-of-law requires careful theoretical consideration before exogenous and foreign texts may be used to interpret the fundamental law of the nation, the TSJ dumps a farrago of minimally-related outside quotations into their ruling, quotations masquerading as genuine thinking. Of course, the universe of usable quotations is vast; one wonders what principle justifies using these authors, and not others, these books, and not different ones. If you quote Hitler  (which they do!) why not also include Attila the Hun’s views on amnesty for political prisoners? (He was against!) The Bible gets tossed into this pastiche, but not the fluffy bits about “forgiveness”. Decidedly untrendy Spaniards of a certain age get their faces oriented towards the sun one last time, and Argentina gets a kick at the Assembly’s buttocks, too. They produced this in haste, though; otherwise we might have some Iranian or Cuban text writers also given a whack at knocking down the National Assembly’s powers.

Almost as repugnant, the TSJ decision purports to make use of legal concepts developed by the Inter-American Court of Human Rights. Hugo Chavez ditched that court in 2012, pulling Venezuela out from its jurisdiction on grounds of “imperialism” and “intervention in Venezuelan affairs”. Their decision in favour of Leopoldo Lopez’ political rights was intolerable interference, he said. Whatever they ruled, Chavez did the opposite.

Now, however, IACHR doctrines dealing with Punto Final no-prosecution laws extorted by generals leaving high office are pressed into unwilling service to prevent the National Assembly from freeing political prisoners. Leopoldo Lopez couldn’t get the benefit of the IACHR before, while Venezuela was subject to its jurisdiction,  yet now it can be used to keep him in jail. Luckily for the TSJ, we are likely to be deprived of the benefit of the IACHR’s views about this fatuous distortion of its jurisprudence.

And so it turns out that the express and unlimited constitutional power to declare amnesty set out in Article 187, after extensive mauling  by the TSJ, now means its opposite. The Constitution, we learn, is unconstitutional.

We can only hope that the TSJ never get their Nazi-quoting pens on Article 139 of the Constitution, though, because that contains a still-living message:

The exercise of Public Power gives rise to individual liability for abuse or misapplication of power, or for violation of this Constitution or the law. ”

Word.

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Jeffry House has practiced criminal and human rights law in Toronto Canada since 1978. His interest in Latin America dates to the mid-1960s. He admires Jose Agustín, Anna Akhmatova and Steph Curry, in equal measure.

18 COMMENTS

  1. It is about time the last sentence of your article, that of Article 139, be taken seriously and continously reminded to those at present in control. I sincerely hope records are being kept for posterity and that such actions by the thugs of TSJ shall not be forgotten nor dismissed and seriously judged when the right moment comes. Venezuela must have its own version of Nuremberg.

  2. The are probably just getting their paralegals or interns to Google quotes they can paste into decisions at this point, without even knowing the context.

    After this nightmare is over, there should be a legal mechanism whereby the 15+ years of binding jurisprudence from the Constitutional Chamber of the Tribunal Supremo de Justicia is purged from the Venezuelan legal system. It would probably require a Constitutional Assembly to draft a new Constitution. As a (no longer practicing) Venezuelan attorney I am ashamed for how these justices have desecrated the legal discipline and system. The damage they have done may be irreparable.

  3. Reading this, I had this superimposed image in my mind, of Chavez and Maduro brandishing a copy of the Constitution as though it were a weapon. The cynicism of it all has no limit.

      • Rather the abuse of, and interpretation by, its purported institutional protectors have reduced it to such status.

        Conceptually, the current constitution is not a bad one.

  4. Cool piece.

    By the way, I heard an eerily similar Volk spiel from a VP activist once. Kept going on about how the Volk needed to be TAUGHT the Volk’s will.

    Anyway, I’m happy these guys are finding words to make explicit their implicit authoritarianism. Makes life simpler.

  5. “But the TSJ can overcome any interpretive challenge. Faced with the near-absolute clarity of the words of the Constitution, it conjures up its own limiting principle from the doctrines of the Nazi legal philosopher Carl Schmitt. I’m not using the term “Nazi” here as some kind of generic all-purpose ad hominem – they literally cite the guy who came up with the legal doctrines the Nazis relied on to justify their rule.”

    Ok this CAN’T be true, I really doubt chavistas can be this stupid.

    • From the decision:

      “En este sentido, si bien la Constitución confiere al Poder Legislativo la potestad de dictar leyes, y en particular de decretar amnistías, esto no faculta a la mayoría parlamentaria a violentar el espíritu constitucional de rechazo a la injusticia, que supone consagrar la impunidad para los violadores de derechos fundamentales. En especial, si la Constitución busca garantizar la realización de la justicia en todas sus dimensiones, su supresión por vía legislativa se desarrolla en el margen que la propia Constitución otorga a riesgo de ser inconstitucional; y ello es así porque la garantía institucional de la justicia se basa, pues, en el reconocimiento que de ella se hace en la Constitución, y como tal es una institución jurídicamente reconocida y delimitada, al servicio de los fines y valores democrático-constitucionales, que no pueden ser contradichos por el legislador (vid. CARL SCHMITT. Teoría de la Constitución. Alianza Universidad Textos, Madrid, 1982, pp. 175-177).”

      • It is a very small space between arguing Leopoldo Lopez et al have committed crimes against humanity, so the constitution does not apply to them, and reasoning that any political adversary of the regime has no constitutional rights.

        • It is indeed sad and telling that they are not even smart enough to invent their own bullshit and have to stoop to borrowing bullshit from the past.

  6. If the letter of the constitution is to be flagrantly declared un constitutional by the Supreme Tribunal alleging its authority to declare whether the provisions of the constitution serve or not ‘the principles’ which (according to it magistrates) are assummed to inspire it , then the decisions of the Supreme Tribunal replaces the Constitution as the Supreme Law of the Land ……….!!

    Because those principles lack written formulation in the Constitution and are to be found only in the subjective mind of the magistrates then the constitution is replaced by whatever happens to be the subjective opinion of said magistrates regarding any constitutional issue …….!!

    Because these magistrates are the subservient hacks of those currently exercising the Executive Power this in effect makes Venezuela a country where the rule of law as represented by the existence of a written constitution lacks all force or authority ……where the whim of the President and his coterie are the supreme law of the land ………!!

    Henceforth the citizens of Venezuela know officially that their institutions only allow for the will of the Presidential coterie to reign supreme whatever the constitution may textually state or declare .

    • Unfortunately, Bill, this is just the latest most blatant example of the usurping of normal powers originally by Chavez and now by Maduro/Cabello et al. It is to weep….

  7. When the Philadelphia Convention was creating the U.S. Constitution, there was some debate over whether the Executive should have sole authority to grant pardons, not conditioned on Congressional or judicial approval. One of the arguments in favor of such authority was that it could be essential in putting an end to political unrest – that is, rebellion. Rebels would be much more likely to stand down if they could be assured that their actions would not be prosecuted, and for such assurances to be timely and credible, they had to come from the unfettered executive.

    For the pardons to work, they would have to stand, even if the rebels’ actions had victims. Thus the TSJ’s theory is further shown to be toxic nonsense.

  8. […] Except it didn’t. The Supreme Tribunal’s bizarre origin, unembarrassed partisanship and unfailing hackishness have destroyed its standing so completely, we just sort of roll our collective eyes at each new outrage. By now we’re well past the point of diminishing returns: each new lunatic rant the TSJ tries to pass off as a sentence merely adds to the bulging indictment against it. […]

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