The wave of renewal that brought the late Hugo Chávez to the Presidency of the Republic in 1999 reached its peak during the constituent process, which ended with the drafting and approval – by popular referendum on December 15 of that year – of a new constitution.
The so-called Bolivarian Constitution buried the ancient and reviled Corte Suprema de Justicia (CSJ) and instead, created the Tribunal Supremo de Justicia (TSJ), as the highest court in the nation, establishing in Article 254 that “the Judiciary is
independent” and that the Supreme Court “shall have functional, financial and administrative autonomy.”
Despite the provisions of the Constitution, experts argue that the Supreme Court has become a kind of judicial arm of the chavista government. “The politicisation of the TSJ was not a decision taken by all or some judges after they were appointed, based on convenience or opportunism. The fact is that they were appointed for political purposes from the beginning,” says attorney Luis Alfonso Herrera Orellana, director of the NGO Un Estado de Derecho.
Herrera Orellana recalls that the process that ended on December 23, 1999, with the appointment of the members of the highest court was led by the head of the National Constituent Assembly (NCA) and Chávez’s mentor, Luis Miquilena, along with fellow constituent and head of the Commission for Restructuring and Operation of the Judiciary, Manuel Quijada.
The former president of the now extinct Supreme Court (CSJ), Cecilia Sosa Gómez, said that the NCA had no power to remove and appoint judges at will. “It assumed powers that no one had granted to it,” said Sosa Gómez, and she highlighted that the method of selection of Justices to the Supreme Court ended up violating the independence of the Judiciary.
In the past, things were not perfect. “In Venezuela, due to our one-man-rule, militaristic tradition and institutional frailty, we have never had a truly autonomous and independent judiciary,” observed Alberto Arteaga Sánchez, Professor of Criminal Law at the Central University of Venezuela (UCV). However, since the rise of Chávez, the situation has worsened. “We’ve never had, as we have now, in times of the so-called Bolivarian revolution, a judiciary, and in particular a TSJ that is absolutely subordinated to the will of the Executive Branch,” said Arteaga.
Despite those initial moves, Chávez at first did not dominate all the pieces of the judicial board. This was evident on August 14, 2002, when the Plenary Chamber of the Supreme Court interpreted the events of April that year, which included the ousting of President Chávez for a few hours, as a “power vacuum,” and not a coup d’état.
Of the 20 judges in the highest court, 11 agreed with the theory that the Venezuelan president left office voluntarily. The ruling drawn up by the presenting judge Franklin Arrieche Gutiérrez overruled the official version, exonerated the military accused of sedition and opened the possibility of prosecuting the president for the violence that killed dozens of people.
“With the statements made in April 2002, the defendants, high-ranking officers of the military, were not ignoring the authority of the government, but the order issued by the President of the Republic to implement the Plan Avila, as it represented a violation of human rights of citizens and it would lead to a massacre,” concluded Gutierrez, who was identified as one of Miquilena’s trusted men. (At that time, Miquilena was no longer part of the ruling party.)
When he heard about the ruling, Chávez bristled. “We are not going to take this. If they think we’re going to take this, they are very wrong. Now the people and the real institutions will counter-attack. A revolutionary counter-attack is what comes next,” he vowed on August 17, 2002, in a public event where he was accompanied by the then Deputy Nicolás Maduro. In turn, he referred to the judges as “immoral” and accused them of having “screwed up.” “They screwed up and went on vacation. How nice!”, he said angrily.
That “revolutionary counter-attack” was consummated two years later. Using his majority in the National Assembly, Chávez amended the Organic Law of the Supreme Court and changed the composition of its Plenary Chamber in 2004. “The reform of the Law of the Supreme Court of 2004, which increased the total number of judges from 20 to 32, shielded the judicial protection system for the government and exposed all its adversaries, who were now subject to prosecution, disqualification and, therefore, removal from the political scene, using the autonomous functioning of the branches of government as argument,” said Arteaga.
Herrera Orellana also believes that this fact marked the destiny of the Supreme Court. “The Justices who did not conform to the government’s plan were removed from office by the National Assembly so Chávez could attain political control over the Supreme Court. That goal was finally achieved in 2004 with the enactment of the Organic Law of the Supreme Court proposed by Deputy Luis Velasquez Alvaray” he said.
Chavista parliamentarians never disguised their intentions. “Let’s be clear, we are not going to score on our own goal (…) In the group of nominees no one will act against us,” declared deputy Pedro Carreño, who chaired the Judicial Nominations Committee. Meanwhile, Tulio Jiménez, member of the ruling party, told the media at that time: “While the deputies have the right to choose (Justices), the President of the Republic was consulted and his opinion was taken very seriously.”
The nominees included two deputies, Velásquez Alvaray and Luis Franceschi, the military attorney general, Eladio Aponte Aponte, and Francisco Carrasquero, who was the President of the National Electoral Council. “You are the head of the judicial revolution that underpins the democratic state we are just starting to build!”, said Maduro in his capacity as head of the ruling fraction in the National Assembly.
Over time, some of those prominent “heads” extolled by Maduro rolled. Velasquez Alvaray was dismissed on corruption charges in 2006. In his defence, he revealed the existence of a network of 400 judges who served the interests of drug traffickers and accused the then vice-president, José Vicente Rangel, of trying to control the Venezuelan judiciary.
Six years later, Aponte Aponte was also dismissed. He was at the time Presiding Justice of the Criminal Chamber and was involved in drug mafias. In an interview with a media outlet, the former Justice admitted that “Justice is like clay. It can be moulded, to work for you or against you.” In that same conversation, he said that the autonomy of the justice system in Venezuela was a “fallacy” and described how political power was pulling the strings of the courts at will.
“Every weekend, mainly on Fridays in the morning, there is a meeting at the Office of the Vice President, with the Vice President himself, who is the one who handles justice in Venezuela, with the president of the Supreme Court, the Prosecutor General, the President of the National Assembly, the State Attorney, the Comptroller General, and sometimes one of the heads of the police. That’s where they decide the guidelines for Venezuelan justice,” Aponte Aponte publicly confessed.
Scandals have come and gone, and chavista forces have kept their strength at the TSJ intact. According to Carreño, judges do not “score on their own goal,” and that is why the revolution always wins every game in the judicial field.
As director of the NGO Un Estado de Derecho, Herrera Orellana co-authored with Antonio Canova a book called “El TSJ al servicio de la revolución. La toma, los números y los criterios del TSJ venezolano (2004-2013) (“The TSJ at the service of the revolution. The takeover, the numbers and criteria of the Venezuelan TSJ (2004-2013)”). The investigation showed that during that period, the Constitutional, Political and Administrative and Electoral chambers never “suspended or cancelled as a precautionary measure one of the many legal acts (decrees, laws, election results, etc.) issued by public authorities where the national government had a clear political interest in their implementation.”
The numbers are evidence that for the Supreme Court, the control of branches of government is a minor task. Herrera Orellana notes that “after reviewing the more than 45,000 judgments rendered in those nine years by the three aforementioned chambers, we found only 1,732 rulings in direct control trials on actions or omissions of public authorities. Of that total, 570 were issued in constitutional appeals against acts of the Government and other authorities, and 26 in constitutional appeals against laws, and no appeal on constitutional grounds was sustained requesting the repeal of any policy or measure of national importance issued by national public authorities.”
Experts detected rulings where “claims of people against acts or omissions of public authorities were dismissed, and the Court supported explicitly or implicitly the position publicly assumed by the government or other national authority just before the judgment on the case was rendered.”
“Only in 12 rulings the Supreme Court questioned the actions of the National Electoral Council (CNE). But 89 percent of those judgments were in favour of the ruling party or its allies against parties or allies of the opposition; in other words, out of every nine judgments rendered by the Electoral Chamber in national matters, eight were rendered in favour of the ruling party,” he added.
The list of irregularities is long, according to Herrera Orellana. “The Supreme Court acted as single-instance criminal court to imprison and remove mayors in the exercise of their duties (Daniel Ceballos and Enzo Scarano), ignoring popular will; it dismissed deputies in office through fraudulent interpretations of constitutional provision (María Corina Machado); it allowed members of the National Armed Forces to be members of political parties (the case of the Institutional Military Front (FIM)) and took measures to deepen and extend the politicisation of the rest of the judiciary with the appointment of political actors as Argenis Chávez, brother of the late President of the Republic, as head of the Executive Directorate of the Judiciary, and giving priority to Bolivarian University graduates for positions of provisional judges, mainly in the criminal area.”.
The investigation conducted by NGO Un Estado de Derecho warned about another anomaly that undermines justice in Venezuela: “The vast majority of judges have no job stability; they are temporary judges and can be removed from office through notifications without due process.” During the evaluation at the Committee on Social, Economic and Cultural Rights, held in Geneva in June 2015, the Venezuelan State acknowledged that 66 percent of the 2,200 judges in the country are in temporary positions.
In addition to expressing their sympathy with the revolution, judges block claims against high officials of the chavista government and actually defend them. Regarding the claims published in international media that linked the president of the National Assembly, Diosdado Cabello, to drug trafficking, members of the Plenary Chamber issued a statement condemning the “conspiracy attacks against the Venezuelan State” and expressing their support to the deputy “for his high-quality institutional work he has done with great sacrifice, dedication, courage and a deep commitment to fulfil the sovereign will of the Venezuelan people.”
The actions of the Constitutional Court deserve a special mention. “The Constitutional Court is the instrument that has been used to resolve political issues, to the point of becoming the criminal court that convicted and imprisoned two mayors elected by the people for acts that were considered crimes at the time of the decision, and as such, subject to investigation by the Prosecutor Ministry and criminal courts. The Constitutional Court is not just another chamber in the Supreme Court. In fact, it has become the ‘supreme’ entity at the Supreme Court,” says Arteaga Sánchez ironically.
Sosa Gomez adds that “the Supreme Court, and in particular the Constitutional Court, has gradually taken us to the time of institutionalised inequality. This means that Venezuelans who are not with the ‘revolution’ or feel disenchanted with socialist militancy, have become socially invisible.”
The former president of former Supreme Court presents an indicator of the credibility crisis of the Constitutional Court, namely the drastic decline of the claims of constitutional rights filed before this court. “At first, over 3,000 claims were filed in one year, and today the number is under 500, of which very few are properly examined unless the government has a political interest. The expectation of a judiciary devoted to guarantee constitutional rights is only in the paper of our constitution, not in the judgments.”
The latest appointments of judges have followed the same strategy devised by Carreño in 2004: no own goals. In December 2014, the chavismo brandished Article 38 of the Organic Law of the Supreme Court, which they approved themselves, to select judges by a simple majority, without having to discuss with the opposition in the National Assembly.
“The selection process did not meet the parliamentary procedure of appointment of senior officials of public authorities, as they were appointed by committees of judicial nominations composed mostly of deputies from the ruling party and members of pro-government civil organisations, and by an absolute majority of members of the House and not by a two-third majority of the deputies,” said Herrera Orellana.
By keeping Venezuelans who oppose the revolution out of the debate, chavistas have appointed members of the United Socialist Party of Venezuela (PSUV) and officials of the national executive branch as “biased judges.” “Those who make it to the TSJ do so because of their revolutionary and socialist position, regardless of professional merit, which some certainly have, but are undermined by political pressure from the government,” said Arteaga Sánchez.
These deviations have taken a toll on Venezuelan democracy. “Any judicial decision builds on the absolute deformation of the institutions, of the powers of the branches of government. The functions of other entities are usurped and abused regardless of the essence of judicial independence, ignoring the constitution,” concluded Sosa Gómez, who lashes out at the judges who “are aligned with the dictates of a supposed socialist ideology that is anything but constitutional.”
The opinion of the former judge is overwhelming. “In this process of institutional decay afflicting the country, the Supreme Court has contributed with judgments that increasingly legitimise constitutional violations.”