Revolutionary justice

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.

Correspondence with a different first world lefty

Foreign philochavistas come in two flavors: the ones who don't know what the hell they're talking about and argue in broad strokes and abstract categories (those damn oligarchs are just angry because finally someone's taking on their privileges!) and the ones who do know what they're talking about - generally because they live here - and argue in good faith. While I have almost no patience for the former, I think it's important to engage the latter. Greg Wilpert, who is decidedly among the latter, writes in about my last post:

------------------

I am wondering if either you are not aware of the threats that prominent government
officials and supporters live under or if you think that such threats are not worth
mentioning. Perhaps you think they are not worth mentioning because you blame
Chavez for creating the atmosphere in which such threats exist?

If you are not aware of the threats, I suggest that you talk to some MVR diputados,
for example. Not too long ago Iris Varela's home was bombed, for example. Shortly
after the brief coup attempt, even an insignificant person such as me received
kidnapping threats via e-mail, for having written the truth about what happened on
April 11 and 12. I've intentionally been keeping a relatively low profile as a result.

The upshot is, I have no doubt that the threats against prominent pro-government
individuals are every bit as common as against anti-government individuals. The
difference perhaps is that the threats against pro-government individuals are
occasionally carried out. Perhaps you don't know about the over fifty campesino
organizers who have been murdered in the past year? There are incidents
happening all of the time, that don't even get mentioned in the government
television, perhaps to encourage the image of a happy Venezuela.

You might think that foreign correspondents should mention the threats against
anti-government politicians; I think they should mention all threats, no matter who is
being targeted - that might at least correct the image of the oh-so holy opposition
and the oh-so evil government. I personally believe that the balance of good and
evil on both sides of the conflict is more or less the same.

Best, Greg
wilpert@cantv.net
----------------

I'll be honest: I wasn't aware of a really broad-based campaign of intimidation against government supporters, though it sounds entirely likely that one exists. I've heard plenty about chavistas being harassed and intimidated when they go to the "wrong" public spaces, and I think that's awful, near-fascist, detestable, and I've argued against it both in private and in public. The overall breakdown of tolerance and civility in society is really one of the worst and most ominous aspects of the crisis.

But I have to admit I find it somewhat hard to believe that the intimidation being metted out to government supporters is anywhere near as systematic and broad as what the opposition is getting. And not because the opposition is good and the government is evil (a view I've argued against repeatedly for months,) but because in order to mount a campaign on the scale of the one opposition leaders are now subject to you really need an organization behind it - you need wiretaps and surveilance capabilities, you need money and manpower and technology and centralized decisionmaking. In other words, you need control of the state.

And this, to my mind, is the key difference, as well as the root of so much of the instability in this country: when a Chávez supporter is threatened, he can call on the state for protection. When an opposition leader is threatened, it's probably the state doing it. Or, at least, someone with the aid, or at the very least the quiescent complicity, of the state. It's the principle of equal protection under the law turned on its head.

If you want to know why Venezuela is so unstable, here's an excellent place to start. The notion that the state ought to protect all its citizens equally, regardless of their political views, seems to me like a minimal requirement for stable democratic coexistence. But President Chávez has never made a secret of his contempt for the idea. From the word go he made it clear, again and again, that he intended to govern for one part of society only, and against the other. For a long time he tried to sell the idea that he would govern for the poor and against the rich. But as anyone with open eyes here knows by now, the real dividing line is purely political: he governs in favor of those who support him acritically and unconditionally and against everyone else.

It seems entirely predictable to me that those who suddenly saw the might of the state turned against them would react with virulent rage. You threaten people, they respond. There's no mystery there. Some of those reactions have gone really way too far, and they've only made the original problem worse, yes. But the original problem hasn't changed, and it won't go away until those who have hijacked the state for their own personal purposes cease and desist.

As Teodoro Petkoff has argued many times, it's entirely specious to say that the government and the opposition are equally responsible for the crisis. Enforcing the law equally, without arbitrary distinctions, is one of the core duties of a democratic state. When a government flouts that duty as comprehensibly as this one has - when it systematically uses state money, state facilities and state power to intimidate critics, all the while giving its supporters carte blanche to do anything they want any time they want, then the minimal basis for stable democratic coexistence are compromised, and the entire edifice of a free society teeters.

And with the edifice we're in teetering, it's obviously crucial not to do anything at all to exacerbate the problem. So yes, you're right, my original post was wrong. At times like these it's very imortant to avoid mindlessly partisan postures. That's what this blog is supposed to be all about, and I was wrong not to bring up the detestable threats made against government supporters in my last post.

But I reject, strenuously, the notion that that means that we can just split the blame down the middle and leave it at that. The Venezuelan state belongs to all Venezuelans equally - all Venezuelans have a right to demand its protection regardless of their political views. It just so happens that the Venezuelan state is momentarily led by someone who vigorously disagrees with that view, someone who's launched a sort of personal crusade against the principle of equal treatment under the law, who sees of the state as a personal plaything, as a political sledgehammer he can use to pound his enemies and a petty cash box he can use to bankroll his friends. So long as we're led by someone who thinks that way, Venezuela will never be both stable and democratic again.

I’ve been thinking more and more about these little stories, these stories that are rarely seen as important enough to get reported abroad, but that underlie the climate of tension in Venezuela. It’s hard for people abroad to quite understand the feel of the crisis here, in large part because stories like these just fly under the radar screen of the foreign press. But they’re important, so I’m going to write about them.

Pressure

It’s 3 am. You hear some strange noises outside your house. Half asleep, you crack the blinds open. You see a man, standing in the middle of the street right in front of your house. He’s looking straight at you. He has a gun in his hand. He points it up into the air. Suddenly you’re very much awake. He’s staring straight at your window. He shoots once into the air, then again, then four more times, quickly. Once he’s emptied his gun he climbs onto a motorcycle and speeds away.

That’s the worst of it, but only part of a broader pattern. Every day you get death threats on the phone. On email as well. And by fax. They know everything about you. They know where you live. They know where you work. They know your wife’s name, and your kids’. They’re following you. When you park somewhere unusual – a restaurant you don’t usually go to, say – you find notes on your windshield. “We’re following you.” This happens again and again.

Fiction? Not fiction. Just a peek into the daily life of a high-profile opposition activist in Venezuela. (I won’t reveal his identity for obvious reasons.) It’s not an isolated case.

The Chávez government has always hung its claim to respect human rights on the fact that no opposition figures have been murdered or imprisoned in Venezuela. The latter claim collapsed with Carlos Fernández’ arrest last week. The former, thankfully, still stands. But what these claims – and too much foreign reporting – gloss over is the systematic campaign of threats, intimidation and harassment government supporters have launched against all sorts of opposition figures.

The campaign is extraordinarily broad – most opposition politicians and pundits are under threat. Many journalists as well, and almost all private media owners. The threats are sustained, personal, delivered in a variety of ways. They target opposition moderates and radicals equally. Few have so far been carried out, but it’s hard to overstate the way this drip-drip-drip of intimidation poisons the political atmosphere here.

It’s important to keep this in mind when analyzing the private media’s behavior in the crisis. Media owners feel under threat. Personally. It’s not that their ideals are on the line, or their livelihoods. It’s their skin they’re worried about. Together with the high-stress nature of their jobs, the intimidation seem to be pushing some of them over the edge.

“I love my boss,” a friend of mine who works for a major media outlet tells me, “he’s a standup guy who’s taught me a lot. The problem is, he’s out of his mind.” He describes the way the mixture of the president’s threats to move against his company, together with the anonymous threats he keeps getting, have created this kind of siege mentality at the company. “He’s worked his whole life to get to the point where he can run a company like this,” my friend says “and he’s convinced that Chávez is going to take it away from him. He might be right, but the thing is that the pressure’s gotten to him. He’s just not thinking straight anymore.”

That doesn’t excuse the absence of balance in a lot of the media here, but it does help to explain it. They don’t call it psychological warfare for nothing. The unending personal threats, together with sporadic attacks against opposition newspapers and TV stations, are actually driving these people crazy. A lot of media people here have lost their ability to examine the situation in a cool, rational, detached way. The way they see it, it’s not just their livelihoods that are on the line. It’s their lives.

The threats, the torrent of well-orchestrated threats, can’t possibly be a matter of a few rogue chavistas striking out on their own to spook their political enemies. The campaign is too broad for that, too carefully run. If the government had any problem with it, it clearly could have cracked down long ago. Many here are convinced that the state security apparatus is behind it. And as the political violence escalates around the country, most are convinced it’s only a matter of time until these threats start turning into real attacks.

Blurting it out

For a second, I worried it had been a one-off. But reading this AP story I’m more and more convinced that the foreign media’s coverage of the crisis is now shifting very significantly.

Up until a few weeks ago, incidents like last night’s shootout outside PDVSA (two blocks from where I live, incidentally!) were covered in a scrupulously agnostic way – especially by the agencies. You kept running into phrases like “a shootout ensued,” or “each side blamed the other for starting the violence,” or “after an armed confrontation, X people lay wounded” – formulations specifically designed not to place the blame on one side or the other. And last night’s shootout was, at least as I saw it, murky enough that it could, imaginably, have been the work of agents provocateurs. It’s not likely, of course: as per usual, all the circumstantial evidence suggests that it was yet another unprovoked chavista attack, but it’s not entirely impossible that some shady right-wing group could have done it to raise trouble – absent footage of known chavistas shooting, how can you be sure?

In the past, that level of doubt would have been enough to elicit the wishy-washy, non-committal language described above. It drove opposition minded Venezuelans crazy reading stuff like that, because many times the weight of evidence against the government seemed so crushing that refusing to assign blame sometimes bordered on complicity with government-sponsored violence. There were some very unfortunate episodes where chavistas were demonstrably, evidently to blame for serious attacks - more than a couple of incidents were even photographed and videotaped and really left no room for doubt - and yet the foreign papers were just not willing to come out and say it clearly.

That’s one problem we don’t have in the post-Fernández-arrest era. The AP write-up is astonishingly unambiguous in assigning blame over last night’s shootout:

"Gunmen loyal to Chavez ambushed a group of policemen overnight, killing one officer and wounding five others, said Miguel Pinto, chief of the police motorcycle brigade. The officers were attacked Saturday night as they returned from the funeral for a slain colleague and passed near the headquarters of the state oil monopoly, which has been staked out by Chavez supporters since December. After a series of attacks on Caracas police by pro-Chavez gunmen, Police Chief Henry Vivas ordered officers to avoid oil company headquarters. But the funeral home is located nearby.

'We never thought it would come to this,' Pinto said.

Chavez's government has seized thousands of weapons from city police on the pretext that Vivas has lost control of the 9,000-member department. Critics allege Chavez is disarming police while secretly arming pro-government radicals."

Now, the journalists reading this know how the sausage is made. This is not the way you write a story if you mean to leave any doubt in your readers' minds about who's responsible for the killing. It’s a gutsy way to write, really - and refreshing to see in the typically bland AP. It just goes to bolster my theory that Chávez screwed up big time with Carlos Fernández – the speed with which the benefit of the doubt has vanished is amazing. He can expect to get raked over the coals abroad for every little slip up now. Once the media start treating you this way, it’s a matter of time until you end up with full-on pariah status. This shift has been a long time in the making. Now, it’s happening.