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From Judicial Precedent to Judicial Activism in Venezuela: the official date is today

By Daniel Duquenal | Venezuela News and Views

12.03.05 | Today the newly appointed constitutional Hall of the Venezuelan High Court (TSJ) has taken its first major decision. There was no surprise as it was known for a long time that the "reform" of the TSJ had a major aim, to revert an August 2002 decision. The only surprise was that it was not expected to be so soon after its nomination. But to explain such a complex issue it is better to segment things.

The clear facts

The August 14 2002 decision was about declaring that there was no reason to bring to trial a group of military officers that were involved in the events of April 11 2002. The decision was not about whether there was a coup that day. A coup indeed took place, but on April 12 2002, in the afternoon when Carmona read his infamous decree. April 11 was a huge mess where all events played around the announcement of army chief Lucas Rincon that Chavez had resigned in the night of April 11 to 12. To this date there has been no satisfactory inquiry on the words of Lucas Rincon, or the events of April 11-13 for that matter. Lucas Rincon became an important player in the post April 2002 government and now rests comfortably in retirement, out of reach from any judicial inquiry.

Today, THAT DECISION WHICH WAS TAKEN BY THE COMPLETE TSJ and had in the Venezuelan judicial system an imprint of a final decision, HAS BEEN REVERTED BY ONE OF THE HALLS OF THE TSJ, a newly appointed out at that, under a new law.

An example to explain to the US reader (and others)

The United States has in its history many a controversial case in its judicial system. Arguably the most important one in recent history for its effects in US society and politics is Row vs. Wade which established the right to abortion for women.

What happened today in Venezuela is equivalent as an anti abortion president managing to violate the constitution and laws to pack legally the Supreme Court just to reverse that decision. And of course retaining after that a docile Supreme Court that will always rule in favor of the executive branch of government. I am sure that US citizens, no matter what side of Roe vs. Wade they stand, will appreciate the new meaning to "judicial activism" that the TSJ has written today.

The legal implications

Judicial independence was a thing of the past after the new law to organize the TSJ was voted last year. Packing of the court with political hacks soon followed. Seeing obviously unfit folks like Carrasquero or Alvaray reach the TSJ said it all. Today decision is just an "official" date for all citizens in Venezuela to realize what we are now facing. Judicial precedent yields to judicial activism now as any decision can be reviewed as needed. Even the decision of Caldera that forgave Chavez could be reviewed if the composition of the TSJ were to suddenly change again. In other words the government will be able to use judicial activism to take the speedy way to legislate when needed.

Now, the constitution in the famous blue book of Chavez is not worth the paper it is printed on.

If the implications for the Venezuelan citizen are indeed obvious, there are also implications for foreign nationals. Folks wishing to invest in Venezuela would be well advised to watch out: there is no way that they will win a legal fight in Venezuela if the executive power responsibility is involved. They might get partial redress or settlements "out of court" in order to avoid to go to international courts, but they will never win no matter how right they might be. As of today Justice is at the service of the executive and that much is crystal clear for all.

For those who already have investments in Venezuela it would be a good idea to limit their exposure as to their nationals residing in Venezuela, to review insurance policy placing policies outside Venezuela, and to get as business partners people directly linked to the regime.

In other words, as of today there are much better countries where to put your money, unless, for obvious reasons, you are in the oil business.

First reactions

As expected chavismo is gloating, including very, very unseemingly the new president of the TSJ who was not involved directly in that decision although we can be quite certain he orchestrated it. But in all fairness we must recognize that Omar Mora has dropped any pretense at impartiality since he has become the new TSJ head. He has announced "revolutionary" justice and now we are fixed as to what he meant.

The General Prosecutor was doubly pleased. His defeat in 2002 for his incompetent handling of evidence in August 2002 was reversed through politics and not good prosecution techniques. Today's decision distracts for his mishandling of the Danilo Anderson case. In normal countries his incompetence would have had him fired long ago. But it seems that in the bananarian republic it is a good career move to look dumber than the big chief. Even more, Isaias Rodriguez had even the bad taste to announce that the justices who signed the August 2002 ruling could be "investigated", one supposes insuring a 100% favorable court for the bananarian revolution.

Opposition figures simply point out that it was an expected development, that justice can only be found now overseas and that the 1999 constitution has been violated so often that it has become a joke. Even figures that defend that the August 14 2002 decision could be revised point out that today decision is unconstitutional as it places the constitutional hall above the full TSJ court something not in the constitution (there are indeed arguments to justify a reversal of the 2002 decision that would stand in an independent system, but prosecution did not even bother trying that way, preferring to wait for the politicians to change the court make up).

The reason behind it all

In the logic of a regime in its march toward authoritarianism (as a preliminary step toward full dictatorship) such a development is expected and the players know very well what is going on. The reason behind all of this legal chavista maneuvering to eliminate from the political scene any possible opponent to the regime. We saw that everywhere from Stalinist Russia or Nazi Germany to Latin America Pinochet Chile or Castro Cuba. It might be so far a softer and more subtle way to do it, but the result will be the same and it could turn ugly anytime.

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