May 3, 2004

Guest Post: Packing the TSJ...again!

by Jimmy Humboldt

Let's be honest here, people love to hate Chavez. Venezuelans are great at pretending that they never voted for the guy, and the country does seem to have forgotten the nasty stuff that went down for years before he came to power. Personally, I'm more than a little skeptical of the opposition's screeching about the "end of democracy" and "takeover of state institutions" on the part of the ineffable Hugo Chavez. After all, he is the president - they're just the guys that tried to overthrow him a bunch of times.

Now, I've given Chavez as much of the benefit of the doubt as anyone. But this week I just about ran out of steam. I ran out of ways to describe this government as democratic or legitimate. In fact I got so pissed I could hardly even see straight, much less have a civil discussion about Venezuelan politics.

Early Friday morning the Venezuelan National Assembly approved the Supreme Justice Tribunal Law, opening the way for the chavistas to pack up the high court with revolution-sympathetic justices.

I'm so bored of the "authoritarian Castro-crony" cliches to describe Chavez that I don't know how to express how much this law flies in the face of democracy. The opposition has churned through the same old stale accusations so many times that the world is desensitized to how serious they are. We've been hearing that Chavez is a totalitarian dictator worse than Hitler for so long that it's hard to make the case competently without sounding like another bleating sheep in the pack.

But here's my honest opinion - the TSJ Law is an obvious threat to democracy. The law expands the high court from 20 to 32 justices, adding 12 news faces that will be designated by a simple 50% + 1 legislative majority, and gives the National Assembly power to fire justices with the same voting scheme.

There are any number of reasons to describe this as unconstitutional - which I'll get to in a minute - but the real reason it pisses me off is not just that Chavez is packing the courts, it's that he's packing the courts for the second time!

Everyone, even the chavistas, agree that when the court was first created in 2000, Chavez's top political advisors packed it full of magistrates they expected to control. Through the standard intellectual gymnastics, this was defended on the grounds that anyone who supported Chavez supported the Revolution, and was therefore patriotic and ergo good for the country.

This analysis sidesteps a fundamental element - the Revolution is a political movement run by a political party, and - according to the little blue book - TSJ magistrates cannot be chosen on the basis of political affiliation. The chavistas assured us for years that of course, the magistrates were completely impartial and only concerned about ensuring the legality of the Chavez reforms.

But unfortunately Chavez let the underhanded, backstabbing Luis Miquilena, the political brains behind his rise, hand-pick "his" magistrates for him. When Miquilena parted ways with Chavez, he took his Supreme Cronies with him. In August of 2003, the TSJ refused to hold a trial for military officers implicated in the 2002 coup - a decision reached as a result of heavy pressure by Miquilena.

Now, here was a moment for the chavistas to step up to the plate and accept defeat. The poetic justice was so evident; the revolutionaries had used the same slash-and-burn tactics that came before them, the same institutional degradation that their movement was built on criticizing. A quick mea culpa could have salvaged the Bolivarian Revolution in the eyes of those with some semblance of critical thought.

Instead Venezuela was treated to a sermon preached from Mount Miraflores about how "powerful economic interests" had bought out the court to ensure that no justice was carried out against the coupsters.

It's like the chavistas forgot they had schemed to bring those justices onto the bench, and had defended them for years against attacks that they had been designated through cronyism. Suddenly, these 11 magistrates became Martians that had somehow, magically, inexplicably, appeared on the bench of the country's top judicial authority.

Instead of an apology for their retrograde politics, the National Assembly launched a witch hunt to fire the magistrates that had voted against trying the officers. That witch hunt failed - the constitution explicitly states that only the attorney general backed by 2/3rds of the Assembly can remove magistrates from the bench, and only after an investigation proving misconduct.

On Friday, the Bolivarian Revolution was officially given permission to re-launch that witch hunt - with the new law, chavistas can fire magistrates at their discretion. Of course, to their credit, they most likely won't need to resort to that - they just have to squeeze 12 more magistrates on to the bench and magically the balance of power shifts back to the Chavez camp - just like in the good old Miquilena days when the court knew how to take orders from the executive without talking back or asking questions.

The 1999 Constitution - you know, the one Chavez keeps in his breast pocket - expressly forbids much of what's in the TSJ law. No sane interpretation of the constitution could allow what they're doing. The legislature is supposed to have a 2/3 majority to ensure there is enough political consensus to change a major (organic) law. Furthermore, the constitution stresses the independence of the branches of government - the assembly can't fire magistrates or hire new ones any more than the TSJ can decree that the assembly should have 200 deputies instead of 165 - and then proceed to appoint 35 new ones.

So this is where I appeal to the best minds of chavismo to explain why I'm wrong? I'm more than willing to listen. The only possible explanation I can see is that the chavistas want control of the high court again, particularly now that Chavez may be facing a referendum, and are not shy about using old-style Venezuelan politics to get it.

I've heard some deputies say the poor TSJ magistrates are so overworked that they need more bodies on each bench to get their work done. But if there really is a need for this, why are some magistrates so violently opposed to it? And if it really is so important, why not develop the 2/3 majority established in the constitution?

Now I have to ask my audience of chavistas brave enough to suffer through pages of ranting on CaracasChronicles - if you were not in government, would it be acceptable for the majority to pack the courts with its friends? Would you consider this democratic behavior if it did not work in your favor? What would be your reaction if Henrique Salas Römer filled the high court with familiar faces from the April 11 coup through evidently extra-legal maneuvers? Would you want a hyper-powerful executive if the executive currently in office were not a friend of yours?