-Coño, Maikel! Tu eres webón?!?
-Sr. Presidente, yo le aseguro que no escribí esa sentencia.
That was probably the way the phone call went down between the President and head of the Supreme Tribunal (TSJ), Maikel Moreno, when Venezuela woke up to the news that Maikel’s outfit had effectively dissolved the National Assembly.
News of the now infamous ruling #156 set off a whirlwind of hemispheric condemnation and market panic, which reached its zenith when Luisa Ortega Díaz, Venezuela’s chavista Prosecutor General, shocked everyone by publicly denouncing the decision as a rupture of the constitutional order in the country.
Conspiracy theories didn’t take long to filter through. Why would the Venezuelan government, at a time when its ability to feign democracy was being minutely scrutinized, pull such a stunt?
One popular theory is that Diosdado was behind the ruling. Playing Joker to Maduro’s Batman, Diosdado used his sway over the TSJ to sow chaos as part of a power play. Diosdado broke the news of the ruling on his live TV show almost immediately after it happened (either he’s psychic, or…). And he was the only high-profile chavista to celebrate it.
While Diosdado’s grubby hands might very well be all over this, the explanation for Chavismo’s biggest fuck-up yet is much simpler. It has more to do with Human Resources than it does with Constitutional Law.
The thing is, you don’t need a TSJ ruling to usurp the National Assembly’s functions. They’ve been doing that for months.
Ruling 156 is, when you look at it closely, a strange beast. It’s not really about constitutional issues at all. 99% of the ruling is about the Hydrocarbons Law, actually. But the entire hemispheric shitstorm has nothing to do with Hydrocarbons. The diplomatic meltdown relates to a single line of text — section 4.4 — way at the bottom of a long ruling:
“As long as the National Assembly remains in contempt and the nullity of its acts persists, this Constitutional Chamber shall guarantee that the parliamentary attributions will be exercised directly by this Chamber or by the entity that this Chamber shall empower, so as to safeguard the Rule of Law.”
The thing is, you don’t need a TSJ ruling to usurp the National Assembly’s functions. They’ve been doing that for months. Up to now, they’d managed to do it in a way that didn’t get ambassadors recalled.
What you did need was a ruling to allow the government to circumvent the Hydrocarbons Law and sell off a chunk of Petropiar to Rosneft in exchange for some desperately needed cash before the April 12th PDVSA maturities.
This interpretation has been hiding in plain sight. The ruling’s socratic preamble clearly sets out the reasoning behind TSJ’s acts:
“It is worth asking the following questions: Is the National Assembly’s previous approval required for the creation of joint ventures, and do the conditions that regulate primary activities require previous approval? What should the Executive do before such circumstances? Does the current State of Exception have an impact?”
A line of questioning that sets the stage for a harmless ruling allowing the President to circumvent the AN and close a deal with the Russians, without having to incur the wrath of democracy defenders worldwide.
My pet theory is that section 4.4 was the work of some harried, underpaid intern who hadn’t had time for the ink on his Universidad Bolivariana diploma to dry yet.
So why did TSJ have to go and screw this up?
My pet theory is that section 4.4 was the work of some harried, underpaid intern who hadn’t had time for the ink on his Universidad Bolivariana diploma to dry yet. I’m picturing the guy hunched over a cubicle at TSJ, too worried trying to make his quincena last to realize he’s written an insanely explosive decision.
I’m sure the guy’s been fired by now. Let’s hope he’s not being tortured by SEBIN. Maybe he wasn’t at TSJ, maybe he was at PDVSA’s legal department and so obsessed with the Rosneft deal he hadn’t even registered the atmosphere at OAS all week.
Whatever the case, his fuck-up brought the country THIS CLOSE to being unanimously and unambiguously labeled a dictatorship.
Worse, he apparently scared off the Russians. Rosneft, if reporting is to be believed, won’t touch the Petropiar deal now.
Two sources close to Rosneft in Caracas tells me they got enough on their plate in Venezuela, don't want new oil stakes.
— Anatoly Kurmanaev (@AKurmanaev) April 1, 2017
Of course, loans could still be forthcoming —though on conditions one shudders to even think of. One way or another this miscalculation has already cost the erario público a shocking amount of money.
Credit where it’s due: Maduro’s handled the situation with real finesse. After remaining silent for more than 24 hours on the matter, he blithely reached for the holy kryptonite to international pressure: dialogue. Invoking dialogue has the power to diffuse even the most unconstitutional of constitutional crises. It’s the dictator’s get-out-jail-free card.
With the OAS permanent Council to convene for an emergency session on Monday, Maduro called for a peaceful resolution to what he called a mere “discrepancy between branches of government.” “Dialogue” happened, and hours later, section 4.4 was no more.
Now that even the Fiscal agrees the Supreme Tribunal is no such thing, now is the time to say: no more. ¡Ya!
But the Tribunal still usurped Assembly prerogatives in its revised ruling. It’s still doing constitutional dibujo libre when it grants TSJ the power to strike new Faja deals, or alter existing ones — a power it doesn’t have the power to grant. The constitution is exactly as dead today as it was this time yesterday: the only difference now is that the Supreme Tribunal’s utter slavish subservience to Maduro’s been made even more obvious, if that’s possible somehow.
This creates just a sliver of an opportunity for the opposition to turn this into an inflection point on the crisis. It’s now open season on TSJ, one of the last bastions of chavista hegemony. Now that even the Fiscal agrees the Supreme Tribunal is no such thing, now is the time to say: no more. ¡Ya! No more convicted murderers in charge of courts. Enough, coño.
Do I trust MUD to do this right? Let’s just hope they also have a pasante bobo to blame when they screw it up.