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Opinion and Analysis: Law and Justice



Venezuela’s legislature, the National Assembly, recently passed a new “organic” law of the Supreme Court. “Organic law” in the Venezuelan justice system means that it is a law that is required by the constitution and emerges from directives set within the constitution. This new law, which regulates the functioning of Venezuela’s Supreme court (Tribunal Supremo de Justicia – TSJ), has among its most important and controversial provisions the increase of Supreme Court judges from currently 20 to 32. Opposition leaders argue that such an increase will allow the Chavez government to pack the court, which currently is evenly divided between Chavez sympathizers and Chavez opponents. Also, the new law stipulates that new nominees can be named by a simple majority, should efforts to name them with a two-thirds majority fail three times in a row. Finally, a third highly controversial provision is that the appointment of judges may be annulled, should it be discovered that the judge does not fulfill all the requirements that the constitution and the law stipulate.

Carlos Escarrá is one of Venezuela’s most respected constitutional experts and former Supreme Court judge. The interview was conducted in his law office in Altamira.

New Organic Law of the Supreme Court

GW: I once asked Ivan Rincon if it was the Supreme Tribunal’s idea to increase the number of judges on the tribunal. He said “no.” I was surprised by this response. What do you think? Do you think it is necessary to increase the number of judges?

CE: Let me say something first to give some background. The court law of 1977 substituted the law of the supreme court of the 1950’s. The court law was designed to regulate an institution of the state, the Supreme Court, with three chambers, plus an additional one that was never created, which was the federal chamber. The constitution of 1961 required its creation, but due to things that happen in this country, it was never created. The court law has two main sections. The first section has to do with the organization and functioning of the court and the second section which has transitional procedures, which would regulate the creation of the administrative review courts and of the superior courts and issues competencies and creates procedures. We spent 27 years with this law on the books.

The constitution of 1999 created a Supreme Tribunal of Justice that is organically different from the Supreme Court.  It has several chambers, a constitutional, an electoral, a social, a full court, and all these types of things create the necessity for a new law of the Supreme Tribunal, which would regulate everything that has to do with the organization and functioning of the Court. The current chambers of the Supreme Court—the number of judges in each—is determined by a provisional statute. That is, the constitution did not determine the number of judges for each chamber nor is there a law that regulates this.

I think in the constitutional chamber and in the political chamber it is enormously justified the increase in the number of judges. This is not the case with the other chambers. I think the electoral, the civil, the penal, and the social chambers put together do not have the number of cases nor issue the number of sentences, that is, they do not even come close to what the constitutional or the political chambers might issue. The electoral chamber issued 220 sentences in the past year, the social chamber also about 200, the civil chamber a similar number. That is, together they do not even reach 1,000 sentences. While the political chamber by itself issued 3,000 sentences and the constitutional chamber almost 4,000 sentences. So, in terms of the volume of work, if that’s what we are going to look at, it is not justified, neither for the social, the civil, nor the electoral, but it enormously justified in both the political and the constitutional chamber.[1]

Another issue that has been very controversial is that the judges can be removed by a simple majority of the National Assembly. Now how is this justified? I don’t know exactly what the constitution says about this, but to my knowledge it does say that high level state officials can only be removed via a “pre-trial of merit.” I imagine that this applies to judges too, no?

The “pre-trial of merit” is needed when you are going to charge a judge with a crime. I believe it is article 266, No. 3. There the “pre-trial of merit” is specified as a necessary step if you are going to charge a judge with a crime. The law consecrates two controversial issues. First, when the moral power of the republic, unanimously—there are three: the attorney general, the human rights ombudsperson, and the comptroller general—when this power declares that there is a failure, the judge is automatically suspended, which then goes to the National Assembly, which then should follow the procedure set out in the law and, where, in accordance with article 265 of the constitution, a 2/3 majority is required to remove the judge.

The point that is being discussed is the automatic suspension, not the removal, which is something that is done by the rule established in article 265. The judge leaves the post while the process is completed. They say that this is a way to get rid of many judges and in face of the dead-lock which exists in the national assembly where neither side has a two-thirds majority, the judge will be suspended for the rest of his life.

The second point is that the national assembly revokes the act of naming the judge when that judge has provided false information in his resume or some such. Of course, in the end one is removing a judge. And, one is not demanding a two-thirds majority. This is why the opposition has questioned the law. The people who support the government, however, have indicated that, in reality, one is merely revoking the act of naming the judge because when the judge was named it was done so on the basis of false information, such as if a judge says, “I am doctor of law and professor,” when in reality he is neither. The constitution and the law establish pre-requisites in order to be judge. If you lied in order to become a judge, and you actually do not fulfill the requirements, then the naming was vitiated. Obviously, this could be a way by which, in a bad political practice, one would make ridiculous the two-thirds majority requirement of article 265 of the constitution.

So you don’t think that this provision would make the Supreme Tribunal dependent on the National Assembly?

First, historically the judges have always come in to office and left as a result of political accords. In some cases this was more obvious and in some less so. Of course, if you want a strong rule of law, you need an independent and autonomous judiciary. All indications in today’s Venezuela are that all judges, from the Supreme Court to the last judge, have all taken politically partisan positions, which has made them dependent on one or the other of the two sides that are in conflict in this country. What is even more serious, in some cases, they have become dependent on economic sectors, which have taken it upon themselves to promote and maintain judges in their positions. I believe that all provisions that go against judicial independence are bad. Obviously that weakens the rule of law. If this law, indirectly, brings with it more dependence, one would have to question it.

But one thing is the law and another is the people who apply the law. When I was named to the Supreme Court during the transition year, I recall that people were saying, “this is a person who cannot be controlled.” I am with the process,[2] no doubt about that. But, it is one thing to be ideologically with the process and another is that in your condition as judge you would distort justice in order to favor a lie or something. When the Miquilena case[3] came up, I abstained my vote because I believed the Miquilena was responsible and at that moment Miquilena was the strong man of the government. He dominated the executive more than Chavez himself. In the end, it has been shown that he turned out to be a person who is not committed to this process. Still, at the time everyone, when they counted the votes, thought that I would vote in favor of Miquilena because “Carlos is with the process,” etc. The ethical and juridical reasons must prevail, when you are in the position, over any other reasons, independently of your ideological position. Not that you would lose your political positions and become a eunuch or a person without a vision for the state.

Corruption in Venezuela’s judicial system

I recall that in a recent TV talk show you talked about corruption within the judicial system. Perhaps you could say something about that. What is the situation like now, in the judicial system? Has it improved since Chavez has come to power or is there still much corruption in the system?

I think there still is much corruption, as much as or more than before. Unfortunately, in the judicial system one has not done the work that should have been done. The Venezuelan judicial system always was the Cinderella of the state powers, in the sense of, “as the last thing we’ll take care of the judicial system,” without realizing that the judiciary is the actual support of the rule of law and of the rule of justice. When we began, in the Supreme Court, in the year 2000, I was the one who had to coordinate the Supreme Court with regard to its restructuring. This is where we organized the contests for the court positions. Dr. Rene Molina, who was in charge of the court inspector and advisor, did a very good job, with regard to the substantiation of indictments against corrupt judges. Dr Echeguerra was the prosecuting attorney. There was a point when the country saw us as the three musketeers: Javier, Rene, and myself. Our principal problem was to create a judicial power that was solid, honest, capable, with regard to transmitting justice to the citizenry.

In July of 2000, the Executive Directorate of the Magistrate was created and with it the judicial commission. It established, in its norms, that those who presided over a chamber of the Supreme Court could not preside over the judicial restructuring commission. This was an elegant way of getting me out of the commission, since I was president of the political chamber of the court. Once the contests for the nominations was over, a regime of provisional appointments began, where the members of the judicial commission—with representatives from both the opposition and the government—divided up the country amongst themselves. Such that, for example, the judges for criminal courts from this part of the country would render tribute to certain Supreme Court judges. Civil judges of another part of the country to others, and so on, through the entire system.

The idea of breaking with the tribes, with the judicial mafias, which was the original idea, which animated us in all of this, unfortunately not only was not done, but now you have tribes and mafias with new faces. You have a judiciary that is truly weak and cowardly and fearful of making decisions. These cannot be the characteristics of a judiciary in any part of the world.

Today we have over 3,000 judges. I am one of those who believes that we need to declare a judicial emergency and put an end to the entire judiciary and start all over again. We need to establish a temporary obligatory civil service so that lawyers – there are some very good ones in Venezuela – temporarily would have to provide an obligatory civil service. Many lawyers say, well, here at my desk I earn 50 times more than as a judge. Well, that’s the contribution they have to make to the country while a true judicial school is created, real judges are formed, and there is a real system for filtering them. In other words, that the job that must be done is truly done. This is a job of deep cleaning and fumigation. This is a process that could last two or three years.

Dissolution of the administrative review court

Another thing that the opposition criticizes much is the dissolution of the first administrative review court (corte premiera administrativa de lo contencioso).[4] Could you explain that decision?

In January of 2000 the first administrative review court was constituted. The naming of the judges corresponds to article 184 of the court law, which says that it is the political chamber of the Supreme Court which does this. I was the president of that chamber at the time. As president, together with the judges José Tinoco and Ignacio Cerpa, we convoked a competition, a closed one, but it was a competition in which about 45 legal professionals participated. We then made a unanimous nomination for the court. In June of the same year, due to some strange occurrences involving the judicial inspector and a partner of his, an accusation was directed against the newly named judges of the first administrative court and this issue was taken to the full Supreme Court, the plenary chamber. The plenary, on the basis that this administrative court was the only court no one in the country controlled, decided that the naming that the political court made was null and void and they would proceed to make new nominations. I abstained in the decision. Strangely Dr. Cerpa, who had participated in the initial naming was one of the instruments of removing this competency from the political chamber. So the plenary named new judges for the administrative court. The judges that were named in August 2000 included individuals who neither complied with the necessary scientific and academic requirements nor with ethical requirements. There were people who had been highly questioned, such as Perkins Rocher, Juan Carlos Apitz, among others. The consequence that this first administrative court, since September 2000 until September 2003 was considered to be the most corrupt court in the country. It was a court in which some judges did business with people who had been partners of theirs. So, as a result, a number of irregular cases accumulated there. On this basis, the political chamber, which is the appeals court of the first administrative court, had already reversed various sentences and ordered disciplinary measures, due to inexcusable legal errors. There were errors that not even the clumsiest lawyer would commit. 17 cases were initiated. In five of these it was proven that there was corruption, where people on the court had received money, where they had deposited the checks, etc. The full court thus decided to revoke the naming of the judges of the first administrative review court and to submit them to disciplinary measures and to then convict them.

In December of last year, there was an agreement, one of the few of the full court, to create a first and a second administrative review court. A competition was initiated where, as far as I know, over 120 people participated. However, since the court is deadlocked ten to ten, they have not proceeded to name the new judges. Those who had left, left for a good reason. These were people who were fundamentally corrupt, where people said, “go to the first court and they will charge you a toll” and so on. Also, judicially speaking the quality of their decisions was terrible. I think it was necessary to get out of this.

For the past eight months a new court has not been named now. What this demonstrates is how relatively unnecessary this court was or how relatively lacking in credibility. If it were an important court for the country, then it could not possibly have been blocked for all this time.

The Supreme Court and the recall referenda

When the decision was made to suspend the consultative referendum of February 2003, it was the electoral chamber that made this decision. But now, it is the constitutional chamber that is deciding issues that have to do with the referenda. What is the justification for this?

In the case of the consultative referendum a decision was made in January 2003. It was an injunction for various reasons. First, the National Electoral Council (CNE) was not properly constituted. According to the constitution, the CNE must consist of people who are not members of any political groups. At the time there was Mr. Pizani, who was an activist of the opposition. He originally removed himself, but then later reinstated himself. There were other individuals who were members of Acción Democratica. So there were problems with the constitution of the body. Secondly, there were problems with the formulation of the referendum question. The question that was going to be asked as part of the consultative referendum in reality contained a recall referendum. This, in turn, had some errors in that for them the consultative referendum was binding. No consultation is binding, though. In any case, there was a combination of problems. The electoral chamber at the time issued a restraining order and suspended the referendum process. So why was the electoral chamber the competent chamber for this case? The problems with the referendum that were raised were, first of all, problems of illegality and secondly they were sub-legal acts of the CNE.

In May of last year, the agreement was signed between the opposition and the government and one of the points was that any elections would have to be governed by a new CNE. As you know, a recourse of omission was filed and the constitutional chamber named a new CNE and when it named it, it gave normative powers to the CNE that, according to the constitution, really belong to the National Assembly. This has resulted in some questions. I said back then—and it was the opposition at the time that fell upon me—when I said that what the constitutional chamber did it should not have done. Back in August 2003 the opposition was very happy with the people who were named and with the powers they were given. I said, “Look, you are giving them legislative attributions that should normally be exercised by the National Assembly and under exceptional circumstances by the President, via the law-decrees,[5] but never a body of this nature. And the constitutional chamber can even less delegate such a responsibility to a body when it does not even have that power itself.” So everyone fell upon me.

So what happened? The current CNE is acting directly under the mandate of the constitution, not of a law. The acts of the current CNE are thus diametrically different from the acts of the previous CNE, when the consultative referendum was the issue. The normative powers of the CNE are the same as has the national assembly. Due to an error, in my opinion, on the part of the lawyers, perhaps more due to the influence of the media more than anything else, the opposition wanted to concentrate all the challenges on the issue of unconstitutionality. In accordance with article 266, No. 1 of the constitution, the last part of article 334, and with article 336, No. 4, it is undoubtedly the constitutional chamber that has control over constitutionality. This is the difference between the two referenda and the two situations.

Do you think there will be a decision from the plenary of the Supreme Court with regard to the competency of the different chambers in the matter of the recall referenda?

I think that decision will not come about in the short term. Unfortunately, this is a political decision and politically the judges are evenly divided, ten to ten. There will be a tournament of efforts to excuse individual judges. I think it will be very difficult for a decision to come about and if it does, it will reaffirm the competency of the constitutional chamber in this case. The electoral chamber is competent in the law-based cases. It only is competent when the act is indirectly related to the constitution and directly related to a law.

The concept of justice in the 1999 constitution

Do you think that there is a new concept of justice in the new constitution of 1999 or is it more about implementing a system justice that did not exist previously?

With regard to the concept of justice in the constitution, I issued various interpretations when I was Supreme Court judge. The concept of justice in the constitution first of all forms part the state itself—the social, democratic, rule of law, and rule of justice state. Secondly, the constitution says that justice is an end of the state, according to article 3 it is a value of the state, and according to article 253 and 254 it is a public service that the state must render. Justice in the constitution of 1999 is a pivotal element in order to make sense of the rest of the constitution. This definition of the state of justice brings with it a different mission than the one the judge would have. That is, the judge must make sure that justice prevails above all else. Article 257 of the constitution says that the judge must find justice and must obviate unsubstantial formalities within the process. Article 334 says that justice must prevail over laws that violate these constitutional principles and values. There is a directive for the judge, from the point of view of the constitution.

There is a radical difference in the concept of justice between the constitution of 1961, where the word justice is mentioned perhaps twice, and the constitution of 1999, where the word justice is not only mentioned thirty times, but it is also the center for understanding the state. Justice, from the point of view of the judiciary, from the point of view of the actions of the executive, has a very important connotation. The whole social vision and the actions in favor of the excluded and the social programs and the missions[6] and so on – the role that justice is supposed to have with regard to the actions of the state, is a central axis in the constitution of 1999.

[1] The new Supreme Court law increases the number of judges in the political, civil, penal, social, and electoral chambers from three to five and in the constitutional from five to seven.

[2] The “Bolivarian Process,” as the political project of the Chavez government is often referred to.

[3] Luis Miquilena, one of Chavez’ most important political operators in the first three years of Chavez’ presidency, who was accused of corruption in 2000/2001, left the government in late 2001, and joined the opposition during the April 2002 coup attempt.

[4] This court was disbanded in October 2003, following a full Supreme Court decision. The opposition argued that it was dissolved because it issued a number of decisions that Chavez supporters opposed, such as one against the Cuban doctors of the Barrio Adentro program. The Supreme Court, however, said it disbanded this court because of numerous allegations of corruption.

[5] Venezuela’s constitution (both of 1961 and of 1999) allow the president to pass “law decrees” if authorized by the National Assembly to do so on certain pre-determined issues. This is what the assembly did, for example, with the 49 laws Chavez passed in November 2001.

[6] The missions of Barrio Adentro, Robinson, Sucre, Mercal, Ribas, etc., which are the government’s educational, health, and service programs geared towards the poor.