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.