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.

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.