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Venezuela and the judicial coup: the thin hair between law and lawlessness

By Daniel Duquenal

Tuesday 23, March 2004 - The Constitutional Court, as expected, finally emitted its ruling turning down the ruling from the Electoral Court. But before, a quick recap. The 1999 constitution previewed a High Court, TSJ, of 20 justices. The TSJ is divided in 6 courts to address the different type of cases that can make it to the court. It is obvious that when a particular case impinges on Constitutional rights, the Constitutional Court has a right of intervention. If the intervened Court deems that the Constitutional Court is wrong, and they cannot reach an agreement, the case goes to the full Court that will decide once and for all.

The Electoral Court has acted, as it is its duty, on an electoral complaint against the Electoral Board, CNE. The 1999 constitution has created the CNE as one of the 5 powers, executive, judicial, legislative, electoral and the obscure poder ciudadano (citizenry power) which in reality is a division of the judicial branch specialized in prosecution and the monitoring of public administration.

Today's ruling from the Constitutional Court basically says that the CNE as an independent power cannot be intervened as the Electoral Court did. The immediate implication is quite clear: the function of the Electoral Court is voided for practical effect. The real implications are more perturbing: the Constitutional Court by going about the jurisprudence it has set has made itself a Court above all the others. This not only goes again the 1999 constitution, but it also implies that whoever controls the Constitutional Court in fact controls the country, that its regulation of other powers excesses, in particular the executive branch, has been given up. Nobody will be able to win a judicial case against the Venezuelan government if this one has the sympathy of the Constitutional Court. There will be no legal precedent to respect if it is contrary to the interests of the group that controls the Constitutional Court.

Let’s not dwell into the technicalities that might or might not justify that ruling. The fact is that if this ruling is maintained, then we have entered into a de facto system. With all the implied consequences as for personal security, property rights, foreign investment, etc… One thing makes this ruling even more damning. By upholding the CNE decision to emit a new regulation on the validity of the signatures AFTER THESE HAD BEEN COLLECTED, it breaks the principle of non-retroactivity of the law, implied in ALL Venezuelan constitutions since 1811. A new precedent will be set and from now on any governmental regulation can be changed at will if the results do not satisfy the original intent, and these new changes could be applied retroactively to punish the people that acted on good faith within the original rules. One can easily imagine the effect on such a precedent on the tax code, on white collar crime, on future elections, and even on the civil code!

What now? Normally, and this must be written with great caution, the Electoral Court should refuse that ruling and emit another one that would require the case to go to the 20 justices of the TSJ. If the cases reaches that highest level there could be two outcomes. The TSJ sides with Chavez and the Constitutional Court implying that the TSJ goes under the Constitutional Court. Or the TSJ settles the issue in favor of the Electoral Court, though the extent of that victory can be very relative according how the TSJ ruling is written. Weeks of negotiation probably, delaying the Recall Election at the very least.

But there is a trap: 16 of the TSJ 20 justices must gather together to take the decision. If 5 justices refuse to take their seats, the case cannot be discussed and the present ruling will take effect until the TSJ eventually manages a way to gather the 20 justices.

Our future is in the hands of 5 people that might or might not seat on the TSJ 20 justices sala plena (plenary session). Needles to speculate on the pressure that Chavez representatives will be exerting in the coming days. Everything has a price. But one thing is certain, a government that lowers itself to such a judicial trick is not a confident government.

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