–Luis E. López Rodriguez, Venezuelan lawyer and LL.M. graduate of Loyola University Chicago School of Law, with research interests in constitutional design, institutional capture, and transitional justice
In February 2026, the Venezuelan authorities enacted a new amnesty law covering certain politically linked offenses committed between 2002 and 2025. Public reporting describes the measure as part of a broader recalibration after January’s extraordinary events—most immediately, the consolidation of Nicolás Maduro’s presidency following the disputed July 2024 elections, in which independent observers and the opposition documented widespread fraud, Maduro’s contested inauguration for a third term in January 2025, and the subsequent wave of arrests and repression against opposition figures and civil society, and, most consequentially, the arrest and extradition of Nicolás Maduro to U.S. custody on federal narco-terrorism and drug trafficking charges—and amid renewed international scrutiny following continued pressure from regional governments and international bodies. Officials have claimed that there are thousands of potential beneficiaries of the amnesty law, while the first available numbers, as reported by the Associated Press, distinguish between releases from custody and the lifting of other legal restrictions.
International and civil society responses to the new law have been measured. The UN Independent International Fact-Finding Mission cautiously welcomed the initiative and urged transparency and public participation, warning that a narrowly framed measure could exclude many people prosecuted for political reasons. Human Rights Watch has stressed a separate but related point: legal relief will not be durable if the coercive infrastructure that enabled arbitrary detention and abusive prosecutions remains intact.
The constitutional question is not whether the grant of amnesty is legitimate or not. Amnesty can be a transitional instrument. The constitutional problem is what happens when amnesty is designed, administered, and reviewed by and within institutions that have been systematically captured. Under those conditions, constitutional review (understood here as any formal legal process by which courts or constitutional bodies assess the validity of legislation against the constitution—whether those bodies operate with genuine independence or not) can stop operating as a constraint and start operating as a gate that manages political outcomes while preserving the appearance of legality. This post argues that captured constitutional review converts amnesty from a transitional relief mechanism into a tool for political sorting—one that grants or withholds legal protection according to the political interests of those who control the reviewing institutions, rather than according to neutral legal criteria.
Institutional capture and what “captured review” means
By institutional capture, I mean two overlapping processes.
First, the co-optation of oversight and adjudicatory bodies through appointments, disciplinary threats, and the manipulation of selection procedures. Second, the instrumental use of law itself to neutralize political contestation. This includes selective enforcement, strategic prosecution, and constitutional adjudication processes that are used against political opponents.
When both conditions are present, constitutional review tends to change function. In this post, “captured review” refers to judicial review that keeps the form of legal reasoning but operates, in practice, as a veto that blocks opposition-initiated measures and a gate that controls access to legal protection—and as a legitimating device for the political coalition that exerts influence over the courts, cloaking political decisions in the language of constitutional principle. The court does not disappear. It remains active. It issues decisions and uses constitutional language. But it functions in the service of the political coalition that controls it, and it determines who receives the benefits of the law and who does not—on grounds that reflect political alignment rather than principled legal distinctions.
This is not an argument about private motives. It is an argument about institutional effects. In a captured setting, familiar doctrinal vocabulary can produce outcomes that reinforce concentration of power rather than constrain it. Amnesty is a useful test case because it forces the system to decide who is eligible for relief and who remains excluded.
Why amnesty works differently under capture
Amnesty appears in political transitions across regions. Under ordinary constitutional conditions, the associated debates about the legitimacy thereof focus on familiar design variables: scope, exclusions, procedure, and alignment with international obligations. These questions matter because the answers determine whether amnesty functions as genuine transitional relief—enabling political reconciliation and the protection of rights—or as an instrument that entrenches impunity and forecloses accountability. They also set the terms on which courts will subsequently evaluate any legal challenges to the amnesty’s scope or application.
Under capture, however, design choices interact with a degraded institutional environment. Three shifts are common in this regard.
First, the body defining eligibility for amnesty can be politically directed. Second, the institution reviewing challenges to the award of an amnesty, typically a constitutional or supreme court, can lack the independence required to evaluate those challenges on their merits. Third, enforcement discretion supplies room to apply amnesty unevenly, generous toward allies while withholding amnesty in relation to political opponents.
The result is a text that looks neutral on its face, but that can produce selectively administered relief. The constitutional status of amnesty becomes inseparable from those who administer it, interprets it, and controls the pathways of review.
The 2016 background and what it illustrates
Venezuela’s previous record of judicial review of amnesty legislation makes this problem—captured review operating through the language of constitutional rights—concrete.
In 2016, the then-opposition-controlled National Assembly enacted an amnesty law intended to cover political prisoners. Shortly afterward, the Supreme Tribunal of Justice struck it down following a referral for constitutional review. Its ruling invoked victims’ rights and constitutional limits in specific ways: the Tribunal found that the law impermissibly extended protection to conduct categorized as crimes against humanity under international law, violating the constitutional prohibition on amnesty for such crimes (Article 29 of the Venezuelan Constitution), and that it disregarded the rights of victims to truth, justice, and reparation guaranteed under that provision and reinforced by Venezuela’s international human rights obligations. The doctrinal vocabulary looked familiar in the sense that the Tribunal deployed standard constitutional and international law terminology—citing victims’ rights, non-derogable obligations, and proportionality—language that would appear in any serious constitutional adjudication.
The institutional context was different, however—as compared to what one would expect of an independent judiciary applying neutral legal criteria. At that point, the International Commission of Jurists had documented a broader pattern in which the Tribunal had repeatedly blocked opposition-initiated legislation and functioned as an instrument aligned with executive power. The episode is useful here because it shows how constitutional review can become a veto channel in a captured setting: the Tribunal acted not merely as a judicial check but as an effective extension of executive authority, using the referral process to nullify legislation enacted by an opposition-controlled legislature. The content of the amnesty mattered in this respect: the scope of the 2016 law—covering a broad range of offenses that the Tribunal categorized as beyond the permissible reach of legislative amnesty—provided doctrinal material that the Tribunal deployed to justify invalidation, but the outcome was consistent with a systematic pattern of rulings favoring the executive branch against the legislature. The amnesty’s breadth gave the Tribunal the legal hook it needed; the institutional setting determined that it would use it.
Some external actors have treated the judicial dynamics just mentioned as a separation-of-powers problem with concrete consequences. For example, the U.S. Treasury Department announced sanctions on certain TSJ officials, citing actions it described as undermining the National Assembly. One can disagree with the desirability of a policy that imposes sanctions on judges and still draw the constitutional lesson: when adjudication is widely viewed as politically aligned, review becomes part of the struggle for institutional authority rather than a credible forum for rights protection.
The current amnesty law and institutional risk
The 2026 amnesty is different in origin. It is characterized by Venezuelan authorities and initial press reporting as a measure advanced by the Venezuelan political authorities who, following Maduro’s removal and amid the ensuing political reconfiguration, retained control of key state structures, including the National Assembly. Yet much of the judicial institutional architecture remains. Courts whose composition was shaped during the period of the concentrated Chavista governance since 2004—when successive waves of appointments and legal reforms progressively aligned the judiciary with the executive, a process the International Commission of Jurists and others have documented extensively—continue to operate unchanged. Oversight bodies remain contested. Human rights organizations stress that coercive tools and repressive structures do not disappear with a legal text.
The core constitutional risk persists. Even if the legal text seems defensible on paper, the process of applying the amnesty is effected by and through institutions whose independence has not been restored. Eligibility determinations, the timing of releases, interpretation of exclusion categories, and the restoration of rights can all be filtered through compromised channels.
This is what makes the Venezuelan case constitutionally distinctive compared to transitional contexts where independent judicial institutions either already exist or are established before or alongside the amnesty process. As mentioned earlier, the problem is not that amnesty inherently raises difficult questions of legitimacy. The problem is that, in an environment characterized by captured institutions, amnesty can function as political sorting rather than transitional relief. Relief may exist and yet be conditional, uneven, and reversible. It can relieve international and domestic political pressure without rebuilding the institutional constraints—judicial independence, prosecutorial accountability, and oversight capacity—on which durable rights protection depends.
Three practical points for constitutional designers and international monitors
First, a country’s institutional setting is a primary variable in assessing the operation and effectiveness of amnesty legislation. The same legal text can produce different outcomes depending on who administers it and who is asked to review it.
Second, courts that have been captured cannot credibly judge whether an amnesty law passes constitutional muster. Where independent domestic review is not available, transitional frameworks should build in external or mixed oversight for a defined period. Such oversight could take the form of a mandate to the Inter-American Commission on Human Rights or relevant UN Special Procedures to monitor eligibility determinations and the lifting of restrictions, or the establishment of an ad hoc mixed review body with participation from independent international and domestic legal experts whose appointment is not subject to executive control.
Third, amnesty not linked to institutional reform and accountability does not produce transitional justice. It is consolidation of existing power arrangements presented as reconciliation.
Venezuela’s amnesty process may result in releases of prisoners and the lifting of legal restrictions. That outcome matters. But release alone does not resolve the constitutional problem. Until the institutions that administer and review amnesty are reformed, there is no reliable way to distinguish transitional justice from political management.
Suggested citation: Luis E. López Rodriguez, Venezuela’s Amnesty and the Problem of Captured Constitutional Review, Int’l J. Const. L. Blog, Mar. 16, 2026, at: http://www.iconnectblog.com/venezuelas-amnesty-and-the-problem-of-captured-constitutional-review/