—Javier Couso, Universidad Diego Portales
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]
I. It has long been long known by observers of Venezuela’s political process that, soon after President Chávez got into power (in 1999), the executive branch started to co-opt the judiciary, up to the point that it is now considered to be under total government control. This situation proved to be extremely useful for the Bolivarian regime, since it allowed it to exclude popular opposition candidates from important electoral races, attack independent media, and imprison dissidents under dubious charges, all with the excuse that it was only following judicial orders.
In this era of authoritarian use of legal forms in many countries, the recourse to the courts to consolidate political power in the hands of the executive branch has become a common pattern among autocrats. Given this, as Kim Lane Scheppele has pointed out, comparative constitutional scholars should work harder to understand the many ways in which the judicial branch can be controlled by illiberal leaders who want to put the courts at the service of the expansion and consolidation of their power.
II. A few weeks ago Venezuela’s highest court, the Supreme Court of Justice, issued a series of decisions which suggest that (even under a semi-authoritarian regime) the judiciary has to show some restraint and respect for judicial forms in order to preserve at least the appearance of impartiality needed to work at the service of autocrats.
Faced with the unwillingness of the opposition-controlled National Assembly to accept some of its previous decisions, the Supreme Court of Justice of Venezuela issued a ruling in which it stated that “in order to preserve the country’s rule of law” it felt forced to transfer to itself (“or to the entity that the Court decides”) all the powers enjoyed by Parliament, while –in a second ruling, issued the next day— it stripped the members of the National Assembly of their immunity.
The first decision (Ruling 156, issued in March 29, 2017) was the most polemical one, because it literally transferred all legislative powers from the opposition-dominated National Assembly to the government-dominated Supreme Court.
In a fascinating turn of events, however, in less than forty-eight hours the Court was forced to reverse itself, under heavy pressure exerted by both international and domestic actors. While the international condemnation was to be expected (most American states repudiated the judicial rulings just mentioned in the strongest of terms), what was truly surprising was the negative reaction expressed by an important official of the Bolivarian regime itself, that of Attorney General Luisa Ortega. In a public statement issued just hours after the publication of the polemical rulings, Ortega stated that “These judgments show several violations of the constitutional order and ignorance of the model of State enshrined in our Constitution.”
Given the opacity of President’s Maduro’s government, there is – at least for now – scarce information about the debates that took place within the Bolivarian regime concerning this issue, but Attorney General Ortega’s strongly worded condemnation of the rulings suggests that she was not alone in her rejection of such a gross violation of the separation of powers principle.
What is interesting from a strictly constitutional analysis is the complete lack of justification offered by the Court for its new ruling reversing the previous one. Indeed, the legal expression used by the Supreme Court to reverse itself was the word “clarification,” a euphemism which does not even try to hide the fact that instead of a clarification what the later rulings did was to alter the unacceptable rulings issued two days before.
III. What can we learn from the extraordinary set of events that took place in Venezuela a few weeks ago? First, that the use of government-controlled courts by authoritarian or semi-authoritarian regimes is now widespread, from Russia to Poland, and Hungary to Venezuela. This because even in such regimes the courts enjoy at least some aura of impartiality and non-partisanship that may be useful for illiberal governments to expand their power. Second, we can conclude from the Venezuelan case that the very nature of judicial adjudication demands a modicum of restraint from an overt political role in order for those courts to serve the cause of autocrats. Finally, the recent Venezuelan affaire suggests that strong international pressure can allow more liberal members of the governmental elite to come in defense of the most basic principles of democracy and constitutionalism.
Suggested citation: Javier Couso, Venezuela’s Recent Constitutional Crisis: Lessons to be Learned From a Failed Judicial Coup D’etat, Int’l J. Const. L. Blog, Apr. 12, 2017, at: http://www.iconnectblog.com/2017/04/venezuelas-recent-constitutional-crisis-lessons-to-be-learned-from-a-failed-judicial-coup-detat-i-connect-column/