Rescuing Our Jurisprudence from the TSJ’s Arroz con Mango

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When judges make decisions, they have to refer to what the Supreme Tribunal has decided in the past. That’s a basic legal principle called ‘jurisprudence’, and especially since December last year, Venezuela’s jurisprudence ha llevado más palo que una piñata.

Earlier this month, the National Assembly turned six months old. If we’re honest, we have little to show for  it. We know the constitution gives a 2/3rds majority in the National Assembly virtually unlimited powers…but what we’ve found out is that the Supreme Tribunal’s Constitutional Chamber is más macho still, and chavismo has not been shy about using its power there to virtually nullify the election.

This problem was foreseeable during the campaign; it was obvious that the Government would not allow an opposition dominated Assembly to tell it what to do, and it was going to use the Supreme Tribunal as its sword to save the Revolution. For a second, we allowed ourselves to believe the 2/3rd majority would short-circuit that plan. If only.

On July 14th, the Assembly decided the Tribunal problem had to be tackled. In an unusually bold move, the Assembly annulled the appointment of thirteen Justices and twenty-one Substitute magistrates appointed on December 23rd last year by the outgoing, lame-duck chavista A.N.

It seems inexplicable that the new Assembly took so long to confront this issue, since it was clear all along it would be a problem even before winning the elections; better late than never, I guess.

So, what exactly did the Assembly do? Let’s recall that – after a grossly unconstitutional process – the lame-duck Assembly re-packed the tribunal last year, ensuring 12 more years of chavista hegemony. The tribunal has 32 justices in total, so unconstitutionally appointing 13 of them isn’t exactly peanuts. What the Assembly did recently is annul the appointment of these Justices, which in theory implies that they have to be reappointed, legally this time.

Why does this matter? Because it means any decision that involved any of these Justices will not be valid, hence will not become precedent.

Of course, the Constitutional Chamber already declared that the annulment is unconstitutional: it argued the Assembly doesn’t have the power (2/3rds majority or no 2/3rds majority) to remove Justices or annul their appointment.

So…gridlock, right? But there is a silver lining. Or two, even. First, any (democratic) solution to the current political situation in Venezuela needs to be availed by the Constitutional Chamber, it’s the organism that gives apparent legitimacy to any action taken to change Government. Be it through a Referendum, Amendment, Resignation or Constituent Assembly, any move needs to be availed by the Constitutional Chamber.

The AN’s move against the Tribunal puts chavismo in an awkward position: the international mediation mission headed by former Spanish P.M. Rodríguez Zapatero had been eager to prevent the ongoing use of the Constitutional Chamber as a political cudgel. The Assembly is forcing the government to do just that, though: which cements the government’s reputation for lacking constitutional scruples.

More broadly, the impasse puts the Tribunal question squarely in the negotiating agenda between the opposition and the government. Now that these Justices have been removed, negotiations may allow the appointment of new Justices in the context of a democratic transition. That may sound far-fetched…but Venezuela is a place where the far-fetched becomes normal with amazing regularity.

The bigger take-away is jurisprudential. Any decision by the Constitutional Chamber is binding for all courts, hence considered law for all intents and purposes. Its decisions become jurisprudence (or precedent) and must be taken into account in the future by any court. Technically, all of the barbaridades the Constitutional Chamber handed down between 6D and July 14 (the day Congress decided to annul the appointment of the Supreme Court Justices) have an apparent veil of legitimacy, because the legality of those Justices had not been challenged. If the Assembly didn’t do anything, that string of locuras would become precedent, and that’s no small thing, because these decisions have restructured the way the Venezuelan state is organized.

So the Assembly’s move isn’t merely symbolic. By annulling the justices’ appointments, the Assembly has created a situation where any Justice or Judge with a basic knowledge of the law wouldn’t dare to cite its decisions.  And even if they did dare to cite them, any decision that did would be open to challenge. In time, they will be swept from legal history because they are based on a kind of ghost jurisprudence.

This stuff about the apparent veil of legitimacy may seem like a bizarre legal nicety: in the end, as things stand, the Government is still doing whatever it wants. But in legal terms, pushback matters: eventually, it will become crucial.

As a lawyer, I’ve witnessed with disgust the arroz con mango our jurisprudence has become.  Over the last 17 years, our Supreme Tribunal has spent its time justifying decisions on political reasoning without any trace of a legal basis. Layer after layer of gobbledygook has been laid down as precedent. Today our jurisprudence is painfully incoherent and unable to serve as a basis for legal security.

What the Assembly did on July 14th is stand up against the ongoing desecration of our jurisprudence. When this government changes, all the crazy decisions taken by the Constitutional Chamber since December 23rd onwards will not amount to precedent. And that’s not nothing.

19 COMMENTS

  1. Thanks. Good job in explaining it. But, it begs the question, how do you undo the entire last decade and a half of ill-considered legal precedent?

    • Easy, consider it abolished it if it goes against anything in the constitution.

      That should wipe at least 85% of all the chavista’s jurisprudence, leaving “alive” only the most delicate and populist measures, which could be taken care of in a more gradual way (I’m looking at ya, stupid labor law)

      • It would be really interesting to have a detailed explanation of how exactly this labor law can be “taken care of”, given that it will be a massive issue to the competitiveness of the post-chavista venezuelan economy. From what I understand, it will be extremely difficult to mess with the “inamovilidad laboral”, for example.

        • And what will the “bravo pueblo” do when the next government decides to simply not re-extend the labor inamobility decrees anymore?

          The labor law can be actually applied, if the people would at least bother to read what it actually says and if at least half of it wasn’t blatandly disregarded as it’s being done today by chavismo, about 50% of the loafing parasites would have been kicked out of their jobs by now without any arrangment nor any “prestaciones” nor liquidations, and that would make the other 50% to actually use their heads, stop sabotaging their own workplaces and actually starting to work.

          It’s just a chavista manipulation the lie that the workers can’t be fired under any circumstances, end the chavista regime, and the main cause for impunity goes away with it.

  2. After liberation, all of the decisions of the Chavista courts will have to be swept away. Not just those which occurred after December 23rd, 2015, all of them.

    In truth, this is not difficult. The de-Nazification processes in Germany and the Lustration laws in Eastern Europe give a general idea of how this should be done.

    As long as Chavista precedents remain hiding in the shoals of Venezuelan law, no one can be safe.

  3. Why did it take so long for the new NA to disquilify the TSJ appointments made by the previous NA??, my conjecture : in part they ve taken the time to document and substantiate their decision with great care which adds to its force, second they let the TSJ show during these months the bold crass way in which they serve as the Regimes toadies even at the expense of arguing their decisions against all known principles of Law……!! Another reason the regime’s credibility has been strongly weakened these last 6 months while the hand of its many enemies has grown stronger with each month that passes ……!!

    • All good points Bill. My first thought was political, before it could precipitate a conflict of powers the new AN needed to establish itself as a true power in the eyes of Venezuelans and the international community. With the Referendum issue hanging as a Sword of Damocles it has maintained the initiative in the struggle. Now it is the only institution with credibility with the people and the only one that offers them a way out of the crisis.

  4. Well, if the opposition would dare to be REALLY challenging, they could claim that because that Chávez DID resign in 2002 and the procedure for handling the power void wasn’t done correctly, and thus, every decision made by any branch of chavismo during the last 14 years would be considered null and void.

    Chavismo should be euphoric from the fact that the MUD decided just to nibble the point of the finger instead of biting the whole arm off.

    • We can go further back. The Constitution of 1999 was made and approved in clear disrespect to the rules for changing the constitution in the 1962 one. To any constitutionalist worth its salt, the 1999 Constitution is null and void, as is anything done under it. Sosa’s “originary power” was just a lame excuse -we had rules to modify our constitution and we disobeyed them.

  5. “As a lawyer, I’ve witnessed with disgust the arroz con mango our jurisprudence has become. Over the last 17 years, our Supreme Tribunal has spent its time justifying decisions on political reasoning without any trace of a legal basis. Layer after layer of gobbledygook has been laid down as precedent. Today our jurisprudence is painfully incoherent and unable to serve as a basis for legal security.”

    This entire post is informative and coherent. But for some reason I don’t see the most important Key Word anywhere here: Corruption. For some reason people make good analysis of Venezuela’s situations but forget to underscore the main Reason for the mess: Illegal Enrichment.

    Of course Jurisprudence has been abused for decades now. But WHY? Not that lawyers or judges don’t know the Law. No. It’s because they are either bribed, intimidated, or silenced and extorted. WHY? Money, of course.

    In a lawless, wild-wild-west country without a real Judicial system, laws, and punishment, anything goes. Crooks get away with any robbery or crime. Murders are rampant. Corruption sets world records, everywhere, at all levels, public and private companies. Because no one risks going to jail. Because, by now, most people are complicit with the widespread Corruption. Because every educated, honest professional who could, like most readers here, you know who you are, got the hell out of that mess long ago. So there’s little honest, educated talent left. And every young College student who graduates now, will also get the hell outta there, first chance they get.

    This results in a major degradation of society, an older population, a systematically corrupt system.Cuban style. That was the idea to begin with, 17 years ago. And with all the damage done, there’s not much Capriles or the MUD will be able to do about it. In decades to come. We might get rid of Masburro and Diablodado Cabello, and Tarek and some other mega-thieves, but Corruption will not stop. The MUD are no angels either..

    Jurisprudence? What you need is honest people sending thieves to jail, to set examples. That’s what they do in most countries that work well. If the “jurisprudence is painfully incoherent”, fix that later. After you start punishing average thieves, political embezzlement, and other crimes. That’s not “jurisprudence” rocket science. It’s basic Law Enforcement.

    • Note to any Caracas Chronicles writer: In order to appease Juan. Whenever writing an article, please remember to add “corruption” as a cause/consequence of any venezuelan related issue.

  6. I hear what you’re saying, but the current TSJ isn’t a purely negative entity, a simple vacuum of jurisprudence. They have a positive jurisprudencial philosophy to supplant it with and, though in campaigning they are communists, their jud. phil. is stricly nazi. That is, they hold that it is the executive itself which sets precedent.

    Caracaschronicles was extremely good at noticing it early. This is why, if we want democracy, we have to start thinking in terms of what to supplant nazi jurisprudence with and how, in positive terms.

    We can hate ’em all day, but they have fodder to ride all the way into hell. They need to be talked to.

  7. I agree on most points, but I do think the aftermath of this jurisprudence, as set in the article, is not too accurate. After all, we live under a continental family of law, and the case-law system is not that relevant in our process.

    Yes, judges tend to heed what the TSJ has to say on several issues, and lawyers use precedents to justify their positions, but to break precedent in Venezuela is not to break the law, as it is in USA or UK. Not even ignoring a judgment from the Constitutional Chamber is illegal, since not *all* its decisions are binding, only those that it expressly classifies as such. People assume that, because it was said by the Constitutional Chamber, it is the law of the land, but it is not always so.

    The suppression of those new justices certainly begs the question of what happens with what has already been decided, but I think the consequence is not automatic rescission. The TSJ is a collegiate institution, and even though some justices’ mandates may be over, the rest of them were, for better or worse, legitimately elected and have wrritten and voted on several decisions. I think the solution is to ignore most of these new infamous rulings, and to only overturn those which were expressly declared binding with new decisions.

    Keep in mind that, despite it being a piece of shit, this cesspool not always decides on political matters. Normal people have issues too, and some have been decided by this tainted TSJ. Hell, I have received favorable constitutional reviews by this shitty Constitutional Chamber, and I would hate and consider erroneous the notion that these decisions are automatically overruled because of a belated and ill-executed political maneuver.

    Furthermore, the AN has legitimized the Constitutional Chamber merely by not ordering the National Press directly to publish its laws. If the AN indeed had the balls to fully consider the Constitutional Chamber as illegitimate, any delay by the President in ordering the publication of the AN’s laws should be enough for the Speaker to publish the laws by himself in the Official Gazette, as it is clearly set in the Constitution, bypassing what the AN supossedly considers as an illegitimate TSJ. They keep saying it, but they do nothing about it.

    The point being, the AN made a big mistake in not addressing this issue head on at its inauguration, rather than focusing on absurd laws like meal tickets for retired seniors. As the author rightly remarks, this is something that was pointed out during the entire campaign and something that we, as lawyers, have come to realize since the “pusieron la plasta”-gate: the Constitutional Chamber has the legal bazooka against any and all branches of government, it can effectively do what it pleases to whom it pleases, and it is indispensable for a transition to be even possible.

  8. Many TSJ decisions are full of holes which are so blatant that there is no doubt that they should be reviewed in the future by a differently composed TSJ to determine their ultimate validity and enforceability ( I understand any decision can be subject to later review by the body which took it ) , For example, the decision which anulled the AN decision to invalidate the previous AN’s appointments, had to jump an impossible hurdle , on the one hand the magistrates whose appointment was being invalidated should as ‘interested parties’ have inhibited themselves from deciding on their own appointments (under a very fundamental ‘conflict of interest’ rule) , on the other hands their signatures were necessary for the Constitutional Branchs decision against the AN invalidation to take effect. How did the TSJ handle the problem, they recorded the session in which the decision was taken as having taken place without the signature or presence of the objected magistrates, then they recorded the decision as having been signed by them …….something self contradictory and absolutely devoid of logic …….

    Each time the TSJ takes a politicized decision I try to find out what former magistrate Roman Duque Corredor comments on them , because he is always able to offer an analysis which reveals the horrendous legal flaws they contain or how they sometimes write their decisions in a way that lets the common reader believe one thing while legally they done something different (letting themselves out of a hook that would condem them as totally out of synch with the law).

    Recently he revealed how some years ago the Court (not yet under the control of the regime) took a decision which went against a decision which the regime controlled NA had taken , and how the NA of that time issued a declaration that the TSJ decision could not be applied because, above the TSJ was the Constitution and the decision breached the Constitution , just the kind of declaration which the current TSJ could issue in light of the current TSJ s premeditated sabotage of the laws ennacted by the current NA.

    Ufortunately Roman Duque only writes in spanish….

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