The Opposite of a Crime

Under Venezuela's constitution, we all have a duty to collaborate to re-establish the rule of law. The implications of that, today, are staggering.

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A couple of weeks ago, Juan wrote a tough, sobering post asking if we’ve really thought through how we would react if, having killed the Recall Referendum option, the government faced a coup.

<gulp>

It’s a debate we’ve been avoiding for a long time. But Venezuela feels like it’s nearing a point-of-no-return where discussing the undiscussable becomes a sombre inevitability.

As I tried to puzzle through Juan’s question, I kept circling back to the standard bureaucratic/journalistic euphemism for a “coup” in Spanish: “rupture of the constitutional order.”

Well, whatever a coup might mean in Venezuela in 2016, it wouldn’t mean that: in Venezuela, there is no constitutional order left to rupture.

In particular, since the opposition’s sweeping win in parliamentary elections on December 6th last year, Venezuela has witnessed the most sustained, comprehensive onslaught on the legal basis of government probably since the Gómez era.

The re-packing of the Supreme Tribunal was, of course, the seminal event here. A court that, ten years earlier, had already been packed with chavista Tom Hagens was purged of the consiglieri and then re-packed with Luca Brasis: killers, and I don’t mean that only metaphorically.

The court has gone on to set down its own delirious jurisprudence: a riotous torrent of sheer nonsense, Nazi in inspiration, leading to the outright nullification of whole swathes of the constitution.

The onslaught has been spearheaded by the TSJ’s Constitutional Hall. Designed to be the constitution’s ultimate bulwark, it has become its executioner. It’s as though the republic had developed an autoimmune disorder that directed its defences to attack healthy tissue and ignore actual threats.

What are we supposed to do about the extreme sort of constitutional subversion-from-within we’ve been witnessing these last few months?

As it turns out, the constitution itself gives us explicit instructions for such an eventuality. They’re in article 333, a startlingly radical corner of the text that reads:

This constitution shall not lose its validity if it were to no longer be observed due to an act of force or because it was derogated through any means other than those it establishes.

In such an eventuality, every citizen, whether or not in a position of authority, shall have a duty to collaborate to the re-establishment of its effective validity.

On a literal reading, anyone who witnesses the willful subversion of the constitutional system perpetrated over the last six months and fails to act to reverse it is in violation of Article 333. In any event, that’s the argument that would likely be put forward. Given the extreme sorts of circumstances we’ve been experiencing, I don’t think that argument can be dismissed out of hand.

Am I advocating a coup, then?

Not at all.

A coup today is ludicrously risky. It could very well take a bad situation and make it much, much worse. It’s hard to imagine how you re-establish governability after you’ve confirmed the worst fears of 30% of the country, and a heavily armed 30% at that. Venezuela already has war-like levels of urban violence – what would happen if you added an actual war on top of that doesn’t bear thinking about.

So let’s be clear: a coup is probably still a very bad idea, yes. But that’s an argument about expediency. The question I want to ask is, is it a crime?

Article 333 is clear. Doing what you can to re-establish the effective validity of the constitution when it’s under attack is a duty. 

And that…that’s the opposite of a crime, isn’t it?

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63 COMMENTS

  1. “… euphemism for a “coup” in Spanish: “rupture of the constitutional order.”

    Well, whatever a coup might mean in Venezuela in 2016, it wouldn’t mean that: in Venezuela, there is no constitutional order left to rupture.”

    Well, that’s one way to interpret what ‘s going on in Venezuela right now. Another interpretation is that a coup already happened, or rather, a self-coup, Fujimori style https://es.wikipedia.org/wiki/Autogolpe_en_Per%C3%BA_de_1992, only done in a more clever way this time, so that many people don’t realize that a coup is what actually has happened.

  2. If I was a military officer and would like to be president, there will hardly be a better chance than now to go for it in the future. Similar to 1992 a sizable chunk of the population would support it. A coup is now not only not illegal but also justifiable, And I wouldn’t count on the people learning the lesson from that time.

    Sadly though, I wouldn bet on a savior coming to the rescue to restore the AN’s powers. It would more likely be a red military junta trying to preserve their very profitable revolution from Maduro’s certain electoral defeat this year or in 3 years. There is no way to predict what will happen anyways.

  3. The term “self-coup” doesn’t place the emphasis where it belongs: the coup is directed against other, equally-legitimate branches of government as well as the Constitution.

    A better term is “creeping coup”, I think, because the gradual nature by which unconstitutional power is engrossed by one branch of government while other branches are pushed towards powerlessness by small degrees.

    I first heard of the term “creeping coup” in the context of Uruguay in the 1970s, but the expression is now being used in Poland to describe an Executive slowly destroying the other branches, especially the judiciary.

    Venezuela has a rare constitution, because it authorizes the people to rise up against oppression, as Francisco Toro points out.

      • That’s REALLY rare, because it places the constitution above individual rights.

        Many constitutions do mandate a duty of military service to “defend the nation” from external threat, but I don’t know of another that imposes an analogous duty to overthrow an unconstitutional regime, or to assist in overthrowing it.

        As an individual, I may not give a damn, I may have other concerns than the separation of powers, or I may consider myself too ill-informed to understand the issues. Still, if I were Venezuelan, I would have a duty to rise up.

        Rhetorically, it’s smashing, but it does carry a whiff of gleichshaltung, I think.

        • To me it is an absurd piece of legislation because it is unenforceable and it opens the door to all kinds of interpretations by all kinds of people.

          A constitutional Pandora Box.
          This constitution will self destruct in 5… 4… 3…

          • Un buen trabajo de investigación seria tener acceso a los archivos de los Debates que se dieron cuando se estaban discutiendo cada uno de los Articulos de la Constitución. En especial el referente cuando se cambia de Democracia Representativa a Democracia Participativa. El mero meollo del peo.
            Saber quien intervino y sus posiciones al igual que quienes votaron a favor y quienes en contra o se abstuvieron.
            Interesante saber acerca de eso.
            Ese debate reposa en los archivos de la AN

          • Juan: Pregúntale a Franceschi, que él fue uno de los constituyentistas.

            Por cierto, 333 y 350, los artículos que fueron puestos ahí para que a Chávez y sus secuaces no se les pudiera abrir un juicio por el 4fiasco.

  4. If you look at this issue from the personal level.
    Would it be legal or morally correct to use violence to preserve your own life ?
    You don’t need a constitution for that.
    I think Venezuelans have almost exhausted all the peaceful means to restore peace and order.
    There has to come that time when we take that bold decision.

  5. It’s a catch 22.
    The regime can jail if you attempt a coup and also if you do not.
    Either way you are violating the constitution.
    Everybody is violating the constitution.

  6. La situación está forzando a que los actores políticos de ambos bandos no tengan cartas guardadas bajo de la manga y que mas bien se pongan en la mesa. Cada vez va a requerir un momento de definirse.

    O se es marisco o se es molusco, pero no se pueden ser las dos cosas.

    Eso es lo positivo que veo ahora, dentro de lo que cabe en un país sumido en la anarquía.

  7. Both 333 and 350 are very well thought pieces of venom added by the chavista legislator when this Constitution was writen. Both were the base to return Chavez to power in spite Lucas Rincón said “se le solicitó al señor presidente la renuncia a su cargo, la cual aceptó”. 2 days later he was back.

    • Lucas “la cual aceptó” Rincón claims that he said that because he was misleading the opposition and the protesters. A blatant lie to enable the later return of the corpse to chimpanflores.

    • National strike with muscular enforcement by closing roads and placing obstacles to oil production. This is a subtle issue, because violence must be avoided, it plays into the government’s hands.

      But closing a road by placing a multitude on it, or burning tires, furniture, cars, etc, isn’t violent. The question is whether several thousand are willing to die to make sure the roads do stay closed for several weeks.

      I don’t think there’s enough individuals willing to sacrifice this way (I think I wouldn’t, my mindset would take me to violent measures, which is one reason why I left).

  8. In Venezuela there is one power that is greater than the TSJ, and one that can overrule any decision by the TSJ by the simple force of their moral authority. It would require them issuing just one sentence, one statement, to ensure a constitutional vote on the future of the Maduro government. One. It would be this succinct: “The Vatican announces today that the people of Venezuela have the constitutional right to vote on the future of their own government.” (..or words like that) That’s it. Just imagine what such a simple statement from the Pontiff would do to the Maduro government. The Maduro government would crumble. The Vatican trumps the TSJ, every time. Sorry, but this Pope helped create this monster. He gave them credibility and legitimacy. It is now time for this Pope to act in the name of the people. His page in history will depend on it.

    • That would backfire immediately. The Church’s present position is dependent on the Church staying out of politics, at least explicitly. The trans-national authority of the Church was deeply resented by nationalists, even before the Reformation. The Church was interwoven with the state, which led to the Wars of Religion.

      Later, in Catholic countries, the Church was a prop of the reactionary order, leading to the virulent anti-clericalism of liberals and radicals from the French Revolution to the Cristero War.

      If the Church directly intervened in politics again, all the anti-clerical flags would come out again. How dare the Pope meddle with a sovereign country? It would give the chavernment a huge boost of foreign support.

      So almost certainly a bad idea.

      • Sorry, but I very much disagree here. No one is asking the Vatican to become any more involved with politics, …than they already are. You can’t invite the scum of the Bolivarian Revolution to the Vatican, then IGNORE their actions in the real world. It is time for the Papacy to become relevant again, put out a very fundamental, yet a basic/simple statement on the rights of the Venezuelan people in electing their government. Sorry, but this Pope is a very political Pope, and becomes even more so with each passing day of silence.

      • Furthermore, this just popped-up today:
        https://ca.news.yahoo.com/pope-criticises-west-trying-export-own-brand-democracy-082621917.html

        If the Vatican feels it necessary to comment on the “type of democracy” permissible in Middle East countries, surely it should feel a similar need to comment on the voting rights of ordinary Venezuelans to choose their own futures/destinies. Right? Where is the Pope? Where? This is the most “political” Pontiff we’ve had in generations. Where is His comments on basic human rights for Venezuelans? He gave credibility to the Bolivarian scum, yet won’t criticize their barbarity to the Venezuelan people? Sorry, just angry today. This is outrageous.

  9. Before we decide whether a coup in the current situation is a crime, shouldn’t we first define what we mean by “coup”?

    What are we talking about when we talk about a coup?

    Are we talking about a “soft-coup”, with a few military strongmen going on TV and demanding the president to resign? Or a palace coup, where Maduro is simply imprisoned by his supposed allies, resignation or not? Or are we talking about fighter jets bombing Miraflores while a firefight rages on in Fuerte Tiuna, and spills over to 23 de Enero, the home of hundreds of thousands of civilians and also the home of several armed colectivos?

    We should talk about those details before deciding if it is a crime.

    And, who’s leading that coup? Are we talking about Wolfgang Larrazabal, someone who will open the door for democracy? Or a new Pérez Jimenez, or another Chávez?

    And, what’s that “duty to collaborate to the re-establishment of its effective validity”? Does it mean taking arms?

    Does every other crime is no longer a crime if carried out under the excuse of Article 333? Can the constitution make criminals out of us all, to enforce it?

    • Without Rule of Law there are no crimes. Nor any mandate to “enforce” a dead Constitution. It would just be the absence of the State and its consequences.

      • But even in the absence of Rule of Law, the State and its consequences, should crimes committed during those times be ignored once the Rule of Law is re-established? Even in times of war there are crimes, that can and have been tried and punished after the Rule of Law is re-established (and, yes, mostly selectively and by the victors).

        But I get what you say with “Without Rule of Law there are no crimes”. I guess the issue is whether we (I) believe that something is a crime even if there is no Rule of Law, even if there is no Law telling me it’s a crime.

        Well, in a way it’s a circuitous discussion. Article 333 is not actionable.

        • Yeah there are “crimes of war” as long as they can be enforced by another State. But who’s gonna enforce those “crimes” in our case? If there’s no one to punish, there are no crimes. Unless we believe in some sort of Natural Rights doctrine. In which case a “crime” against Natural Law would be “punished” by its consequences or a “popular trial” ala Locke. In any case, those trials wouldn’t be an “enforcement” of article 333 but rather one of a Greater Law.

          I think that the entire discussion is out of focus. The question shouldn’t be whether some acts can be considered a crime according to a no-longer obeyed Constitution. It should be about the logical consequences of accepting that the State has failed. And whether our morality can cope with such an scenario.

  10. What is this about, really? The record is very clear what lengths these people will go to retain power.

    Hence, what plausible means remain to restore democratic institutions at this point that don’t require a revolt?

  11. The only thing that is clear (at least to me) is that if there is a change in government, its going to be within the government, via coup, resignation, referendum or whatever.

    Before we have an opposition government, we will have a couple more chavista, or best case escenario, coalition government.

    • The bolivarian coup has been unraveling for fifteen years, and it was done brilliantly, like stealing in broad day light, the whole world applauding, the Carter Institute giving its blessings, etc. However, now no easy choices are available, we have reached an end game of incompetency and madness, the situation is not sustainable and the options are as bitter as arsenic.

      The so-called democratic option, is an illusion, the regime wishes and invokes chaos and is willing to play with fire, all the way. The so-called military option could go two ways; the first, hardcore chavista military clamp down the country and put in place a new Hugito., and stick with the “revolution” for a few more decades, pero sin mascara. The so-called coalition government you mention, is highly improbable.

      Only a miracle can deter blood shed at this point.

  12. Venezuelans have been dealing with the difference between “legality” and “morality” for a long time. For many years, the mass of contradictory and impossible to comply with laws have made it virtually impossible to survive day-to-day life without breaking one law or another. We all end up making our own moral decisions about which laws to ignore, and which to uphold. Many of us even choose to ignore opportunities which are “legal”, but which contradict our own essential sense of fairness or “morality”. So, I don’t give as much weight to the desirability of legality as some others here do. I do think that it is important that some sort of moral framework be elucidated as a guiding principle.

    The original independence revolutions in the Americas were not “legal”, but they were “moral” in the sense that the various Independence Declarations outlined the grievances and moral reasoning for rebelling against the legal authority of the European Crowns.

    While it is nice to find a “legal” and “constitutional” rationale for a popular rebellion, it is not an absolute necessity. Revolutions happen when the status quo becomes unbearable or untenable. At some point people conclude (collectively) that potential future benefits of open rebellion outweigh the immediate risks.

    In my mind, the only question is whether the coming popular rebellion will be planned and organized, or whether it will be spontaneous and leaderless. If the latter, it will be even more violent and bloody and it may well fail for lack of leadership. The danger facing the Opposition today is that the regime is moving to eliminate its leadership from the picture. There is a window of opportunity to execute a planned regime change, but that window is closing rapidly.

  13. The coup already happened and it was performed by Maduro’s allies. I think there is enough evidence that Maduro is not a smart politician but he has instinct and he is extremely pragmatic. So, someone else is pulling the real strings and that is not necessarily the military. We all talk about corruption and all the jazz about money being stole away but that is not enough. It was not enough for Perez Jimenez nor CAP to hold up power.

    I have this theory that is kinda crazy but if you think about it…I believe the regime is sustained by drug money. If you believe Maduro is sustained by money then I think that “legal” corruption money has dried up. Hence, the money that is left to buy people most come from drug trafficking. Think for one second:

    – Heavy drug trafficking has been challenged in Colombia. A new save heaven has to be found, Venezuela
    – Extreme economic distortions allow to buy people “cheap” in Venezuela.
    – Chavez and co. kicked out the DEA and the CIA long time ago. They established strong links with the FARC which are drug traffickers themselves.
    – There is strong evidence of drug trafficking in high ranked government personnel. May not be fully proven in a court of law (ha ha ha, even writing this makes me laugh out of pure cynicism) but if walks like a dog, smells like a dog, and barks like a dog..
    – Samper is the head of the ALBA. That talks by itself.
    – Drug trafficking can buy a lot, it makes billions of $US and they attempted with certain degree of success to take the Colombia government. Why not try the Venezuelan Government, a weaker and a lot more pragmatic entity.
    – Cuba already gave up on Venezuela, it is not even trying to lend some support like in previous years (remember Fidel’s video in support of Chavez). Would they know something we don’t know?.
    – Very violent but low level criminals have very sophisticated weapons, those can only come from military or police sources. “City of Gold” anyone?.
    – The border with Colombia is in full control of the Venezuelan military and sealed. Not a lot of civilian oversight.

    It could be the best heist ever pulled by a drug cartel, buy a struggling and philosophically weak communist wanna be government. It is not the first time, remember Noriega.

  14. The regime has flagrantry violated the constitutional order , many times and in many different ways , thus under art 333, any citizen is duty bound to ‘collaborate’ in restoring the violated constitutional order by means unspecified , is this a license to use force or violent means to achieve such restoration ?? the constitution doesn’t say. To be noted is that under Venezuelan law legal provisions which are silent as to the manner of their enforcement lack enforceability for ‘the interpreter cannot add to the provision what the provision doesn’t say …..’ (donde el legislador no distingue no es del interprete el distinguir’.)

    Constitutional scholars consider that certain Constitutional provisions are purely ´Programatic´ in character , i.e. they express a desire , an ideal which is honoured by the Constitution but which is not meant to be applied in practice . Could art 333 be one of them ?? An expert constitutional opinion is needed to sort out the many difficult issues raised by this article.

    The point if of course totally moot for if the regime transgressing the constitution is toppled by forcible means whatever new TSJ is appointed will find excellent cosntitutional arguments to justify the toppling, and if it fails the existing TSJ will judge it unlawful and unconstitutional using perhaps zany and tortured arguments …!!

    I guess that most of us are familiar with the old adage from colonial times, invoked when the king took some measure that the local authorities though impossible or inconvenient to apply , the kings dictates ‘se honran pero no se acatan´, funny how those old crazy old Spanish customs come to haunt us again and again..!

  15. Mientras tengas a los pendejos de la oposicion diciendo que la UNICA manera de salir del gobierno es con los votos, no importa lo que diga la constitucion. Nadie va a hacer nada.

  16. Ultimately, what matters isn’t what the Constitution says or doesn’t say, but what our consciences say, and how we weigh whatever happens vis-a-vis the alternatives.

  17. “Colaborar”? What does colaborar mean? Form a discussion group? Take out military installations?

    I’m just glad for all of our sakes that this article is not written into the US Constitution after the “well regulated Militia” part.

  18. In the words of the British statesman, Edmund Burke: “All that is necessary for the triumph of evil is that good men do nothing.”

    Which begs the question, are all within the county’s institutions corrupt, or are there indeed some good men and women who feel to cowed to act?

    A fanciful situation: A group of police/military with sufficient autonomy and strength arrest a majority of the TSJ, sighting article 333. The AN then replaces said members, wresting control of the court from the chavistas hands. The march towards a better future begins as it should have after D6.

    If only….

    • A proven non-violent solution is that good men and women in fact decide, on mass, to do nothing. Absolutely nothing. Meaning they stay home. Until a list of basic demands are met.

  19. Es muy distinto llamar al diablo que verlo llegar.

    If we open this door, whoever comes after could face the same situation.

    • “right-wing journalist and blogger Francisco Toro”

      Oh man… you REALLY need to reconsider your definition of “right-wing”.

      That and peddle your BS somewhere else.

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