http://www.thedailybeast.com/contributors/raul-stolk.html

11.07.16

 

Will Venezuela’s Impotent Supreme Court Lead to Civil War?

By Raúl Stolk

 

The country’s supreme court has all but extinguished the rule of law—and may ignite a revolution.

 

CARACAS — The sense of abandonment in the streets of Venezuela these days is hard to describe. It goes far beyond the queues outside every single supermarket, the pharmacies stocked with trinkets and toys instead of medicines, the streets made dark and lonely by the self-imposed curfew of fear. Hardworking people wander about, aimless and hopeless, simply asking for help from anyone who can spare, at least, the time to listen to their laments.

There’s a feeling that anything could happen at any moment. There could be a police raid or there could be looting, or you could get shot or robbed, or the National Guard may decide to beat you or put you into custody.

It’s the absolute absence of justice, the absence of the rule of law that one feels, a sense of defenselessness engengered by the same institution tasked with giving citizens order and security: The Venezuelan Supreme Tribunal, the TSJ.

Broadly, the role of the tribunal since 1998, when the late Hugo Chávez came to power, has been tied ever closer to the whims of the Executive Branch.

First, during the early days of chavismo, it green-lighted the political reform that would eventually allow President Chávez to control the other branches of government. This was an act of institutional suicide if there ever was one.

Later on, the TSJ became a political instrument for the government, and this is well documented in every single one of its decisions.

Antonio Canova, a constitutional lawyer based in Caracas, along with three of his colleagues, took on the challenge to review over 45,474 rulings of the Venezuelan Supreme Tribunal to determine whether it was biased in favor of the government.

They published their work in a 2015 study entitled, succinctly, The Supreme Tribunal at the Service of the Revolution. And the results were staggering.

The team of lawyers came to the conclusion that in an eight year period —between 2004 and 2013— the Supreme Tribunal had not once ruled against the Executive Branch.

The consequence is that the natural users of the justice system have flocked away from it, since there’s no guarantee that there will be any sort of impartiality or expeditiousness. Plus, the complete disregard for public accountability has enabled the corruption network that is eating away at public organs. It has infected other instances of the judiciary, such as the criminal courts, and administrative offices of the government like those that control prices and the foreign exchange market.

When Hugo Chávez died and President Nicolás Maduro took office, it was the TSJ that allowed him to run in the elections even when the Constitution explicitly stated that he couldn’t. The court was acting on Chavez’s dying wish.

Late last year, the already subservient Supreme Tribunal was re-packed with chavista judges by the lame duck National Assembly a few days before the new one took oath. The opposition had just won a supermajority in the legislative elections after a landslide vote. But now the TSJ could use its vast powers to check the parliament to reverse almost every legislative initiative pushed forward by the opposition majority.

Just now, the TSJ ruled that the parliament cannot have its own legal representation in court (to fend off challenges before the court) but that it must rely on the Attorney General appointed by the Executive. The current National Assembly is on a choke hold.

Canova believes the Supreme Tribunal has been spearheading this crisis, and that it is crucial that we “take a look not at the decisions that the TSJ has been taking lately to annul the activities of the parliament, but at who is taking those decisions.”

Take Calixto Ortega, for instance. Ortega’s militancy with the government party goes back to the beginning of the Chávez years. In those days, Ortega held a spot in the National Assembly for the government party. It was said of him that he was one of two government party deputies —the other one being Nicolás Maduro— who had the good sense to tend bridges with their opponents. He was easy to talk to and negotiate with, while stirring his scotch and soda with his little finger. His diplomatic manner may have been the reason the Venezuelan government appointed him chargé d’affaires in the United States in 2013. They needed someone who wasn’t allergic to capitalism, and who could serve as liaison with the US when things got tough: someone loyal who could do some damage control when it was required. And he did.

When Hugo Carvajal, a retired general who was appointed to run the Venezuelan Consulate in Aruba, was apprehended by Aruban authorities in 2014, it was Mr. Ortega who was sent to deal with the diplomatic scandal.

The Aruban police reportedly had acted on a U.S. warrant for Carvajal related to an indictment in on drug trafficking charges. He was taken into custody, and the Aruban authorities were about to start the extradition process to the U.S.

Ortega intervened and brought Carvajal back to Venezuela with him. Today, Carvajal holds one of the few seats the government party has in the National Assembly and, in consequence, he’s invested with parliamentary immunity. Even when he was not a visible politician, except for the Aruba incident, the United Socialist Party of Venezuela decided to give him one of the spots they were certain they wouldn’t lose to the opposition.

Ortega could be considered the Tom Hagen, the consigliere, of the chavista regime. There is no doubt of Ortega’s loyalty to the government party, and yet he holds one of the highest spots on the Venezuelan judiciary.

And Calixto Ortega is just one of many characters hand picked by the government party, skipping all protocols and constitutional procedures, and who doesn’t have the merits or experience to hold that post.

In recent days, the government party filed a motion to shut down a referendum put forward by the opposition to recall President Maduro. Considering the tense environment in Venezuela, the referendum has been seen as an escape valve to ease the pressure, and serve as a pathway to resolving the critical economic and political situation.

For the opposition this recall must take place during 2016 in order to be able to call for a new Presidential election. For some factions of the government party close to Maduro, it must be delayed until after January 2017 so the current VP can end Maduro’s term.

The government tries to buy time by saying dialogue is on the table, but as long as it is not conditioned. The opposition agrees to sit down, as long as their conditions are accepted.

Even when the Supreme Tribunal has been systematically blocking every single attempt to resolve the crisis, shutting down the referendum is a card they may want to keep in their sleeve.

The elections authority has until the 26th of July to announce whether the process moves forward or not. If it’s stalled or blocked there is no doubt that the country will be immediately ignited.

The end starts to become clear on the horizon, and it is not so much a matter of “when” anymore, but “how.” The Judicial power may be sleeping with a finger on the trigger of an unprecedented social conflict.