So, Carlos Fernández got arrested – what’s the big problem? Listening to his speeches during the General Strike, it’s hard to argue he didn’t break some laws. In particular, when he urged people not to pay their taxes, isn’t it obvious that that’s incitement? And it’s not like Chávez went and arrested him personally: a court ordered his arrest. Isn’t that what courts are for?
It’s an argument you might find compelling, but only if you know nothing about the Venezuelan justice system. The story of Venezuela’s courts in the last four years is the story of a systematic, thorough political purge. By now, the vast majority of Venezuela’s judges have been handpicked by presidential cronies – a good number are clearly presidential cronies themselves. Take, for instance, the judge who initially heard the Fernández case. He’s a long-time chavista activist with a murder conviction on his police rap-sheet who, just a couple of months ago, was serving as defense council for one of the chavista gunmen videotaped emptying his gun into an opposition crowd back in April. He’s far from the exception.
It all started in 1999. It’s hard to believe now, but just four years ago Hugo Chávez had 80% approval ratings and the political capital to do just about anything he pleased. As part of his pledge to reinvent the state from the ground up, Chávez launched a so-called “Judicial Restructuring Committee” charged with overhauling the court system. It was a popular decision back then, and understandably so: years of old regime cronyism had left the courts riddled with political picks who took their marching orders from their respective party patrons. The courts were badly in need of a shake-up, and after years of railing against the political subordination of the judiciary, Chávez seemed like just the man for the job.
But the exercise went wrong from the start. Daunted by the prospect of having to investigate each and every judge one by one, the Judicial Restructuring Committee adopted a highly dubious expedient. They decided to just suspend all judges who had eight or more corruption complaints pending against them. Obviously, it was a quick-and-dirty shorthand. Just as obviously, it demonstrated appalling contempt for the procedural rights of the judges involved. While the move certainly cleared away many of the worst cases of judicial abuse, it doubtlessly also included all kinds of “false-positive” – honest judges who’d accumulated several spurious complaints against them and found themselves booted from the bench with no chance to defend themselves. Indeed, some 80% of Venezuelan judges had that many complaints pending against them, and it’s hard to believe that all of them really were corrupt.
The Restructuring Committee had the power to replace the suspended judges with “provisionally appointed judges.” To keep the purge from bringing the court system to a halt altogether, these provisional judges were hired after a superexpedited selection process. And that’s where the trouble started. In typical form, Chávez had named only personal supporters to the Restructuring Committee. Not surprisingly, they selected only chavistas as provisional judges. The result was a mass swap of politically motivated magistrates: out went the adecos, in went the chavistas.
But the abuse went further than that. A normal Venezuelan judge, under the old system, was terribly hard to get rid of. This created some problems – bad apples were hard to dump – but solved others – honest judges were hard to pressure. Though many judges clearly supplemented their income with bribes, and many answered faithfully to their political patrons, at least they didn’t have to worry that they’d lose their jobs if they handed down a decision that displeased their higher ups.
Provisional judges are different: they have no special labor protections. In fact, they can be removed just as quickly and easily as they were appointed by the same people who initially chose them. So by the end of 1999, not only were the vast majority of Venezuelan judges chavistas, but they were chavistas who knew their job security was totally dependent on their willingness to follow the orders handed down by their political masters.
The president and his cronies soon developed a taste for this new brand of judiciary, chuck-full as it was of defenseless provisional judges. The system made it much easier to keep judges on the straight-and-narrow. So provisional appointments – which, as the name suggests, were initially supposed to last only a few months while regular judges could be selected – became, in fact if not in law, permanent. Today, four years after the restructuring drive started, a whopping 84% of the nation’s 1380 judges are provisional appointments.
Keep this in mind the next time you read a story about a Venezuelan judge ordering an arrest of a political leader. The scrupulously neutral language of international journalism contributes to the appearance that these decisions are based on at least a minimum of democratic legality. But when it comes down to it, these judges are not any harder for Chávez to appoint or remove than his minister, and just as beholden to him.
The situation is just as bad in the Supreme Tribunal, though there the story is a bit more complex. Chávez continually says it’s absurd for people to charge him with controling the Supreme Tribunal, because the tribunal has ruled against him on a couple of high-profile cases. That, he implies, is living proof that he’s purer than pure and never set out to subjugate the court. The truth is far less flattering than that: he did try, it’s just that he was too clumsy to pull it off.
Following the approval of the new constitution in 1999, the old Supreme Court was fired en masse, and a brand new Supreme Tribunal was selected. The appointments required a two-thirds majority in parliament, which Chávez didn’t have. He had no choice but to cut a deal with some of his opponents in the National Assembly to select a new court. To their eternal shame, Acción Democrática and Proyecto Venezuela decided to play ball.
The parliamentary deal to select a new tribunal was old regime politics at its worst - a stereotypical smoky room deal. Between them, the three parties had the required 2/3rds of parliament needed for the appointments, so they more-or-less divvied up the court the way a butcher might cut up a salami. Since MVR had about 70% of the three-party-coalition’s seats, they claimed 70% of the 20-member court: 14 magistrates. AD had about 20% of the seats, so they got to pick their four magistrates. Proyecto Venezuela, as the junior partner, got to pick two. This is not speculation: I’ve heard AD leaders, who were later excorciated by the opposition for playing along on this, defend themselves publicly by saying that only by cutting a deal could they block Chávez from appointing a 100% court. “At least we have a few magistrates,” they say.
Each of the Supreme Tribunal magistrates selected in this way know precisely which party they owe their appointment to, and which party they have to take orders from. Years of angry chavista denunciations against these sorts of shenanigans were left by the wayside. It was, as one pundit memorably put it – “more of the same, but worse.”
The problem is that Chávez screwed it up. Big time. He outsourced the task of picking “his” magistrates to Luis Miquilena, who was his then right-hand man back then. He thought he could trust him. But Miquilena picked personal buddies for the job, some of whom obviously saw him, and not Chávez, as the real boss. Eventually, as Chávez’s governing style became more erratic and authoritarian, Miquilena jumped ship. And when he did, he dragged some of the Supreme Court justices along with him.
That, in essence, is why Chávez has lost some cases before the court: Miquilena has enough pull over a few of the magistrates to turn them against Chávez on selected occasions. So, in a sense, Chávez is right: he doesn’t totally control the tribunal – not anymore. But that’s hardly because either he or the magistrates underwent some sort of mystical conversion to Montesquieu’s liberal vision. The magistrates are still puppets, it’s just that one of the puppeteers switched sides.
Of course Chávez finds this situation intolerable: the very notion that an important branch of government could fall outside his control runs directly counter to the autocratic spirit that animates his whole government. So he’s had his cronies at the National Assembly hatch a plan to expand the number of magistrates from twenty to thirty, together with expedited new methods for appointing magistrates that would allow him to pick ten new, this time reliable, candidates to solidify his wavering majority in the tribunal. It’s shameless court packing. But then, shame is in short supply in Caracas these days.
The move would also solidify his control of the lower courts. Since the new constitution came into force, the Judicial Restructuring committee was wound down and responsibility for managing the nation’s courts now lies with the Supreme Tribunal, through something called the Executive Directorate of the Magistracy – DEM, after its Spanish acronym. Control of the Supreme Tribunal means control of the DEM, and through it, of all the lower courts. So packing the Supreme Tribunal allows Chávez to strengthen his control of the lower courts, and to continue to pack them with provisionally appointed cronies.
In short, the judicial system has become, like the rest of the Venezuelan state, a presidential plaything. The orders to arrest Carlos Fernández and the PDVSA strike leaders are patently, transparently political decisions, bits extracted whole from presidential speeches. These courts, which act with such frightful celerity when it comes to prosecuting the president’s opponents, slow to a glacial pace when it comes to prosecuting the president’s friends, even when those who have been videotaped shooting into crowds of unarmed civilians. To summarize the government’s judicial philosophy: if you call an opposition march you go to jail, but if you empty your gun into that march, you’re a revolutionary hero, and your lawyer is appointed judge.