The Constitutional Chamber’s Recent Decisions to Enable Legislative Elections in Autocratic Venezuela

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—Raul A. Sanchez Urribarri, Senior Lecturer in Legal Studies, La Trobe University (Melbourne). Email: r.sanchezu@latrobe.edu.au.

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In recent weeks, the Constitutional Chamber of the Venezuelan Supreme Tribunal (Tribunal Supremo de Justicia, TSJ), issued key rulings in support of President Nicolás Maduro’s regime, in his quest to recover the control of the country’s parliament, overcome the ongoing political and economic crisis, and further cement his authoritarian rule.  The decisions allowed for designations of the National Electoral Authority (CNE), and the subsequent interventions (and virtual takeover) of two of the most important opposition political parties: Acción Democrática (‘Democratic Action) and Primero Justicia (‘Justice First’).

Venezuela has been openly denounced as an autocracy – with over 60 countries refusing to recognise President Maduro’s May 2018 election and claim to power, including the United States and a large number of European and Latin American countries, recognising instead the legislature’s (National Assembly) President’s Juan Guaidó as the country’s legitimate president since January 2019.  The unprecedented constitutional crisis remains unsolved to the present day, with Venezuela still nominally under two presidents: One with effective control of the regime but without electoral legitimacy (Maduro), and another (Guaidó) whose interim claim to the Presidency and push for a constitutional transition and ‘ceasing Maduro’s usurpation’ has not been effective, despite major international recognition and support.  Moreover, there still is a ‘Constituent Assembly’ in place which, although largely inoperative and disengaged from constitutional politics, remains an important institution in this unstable political context.

In Venezuela, the Supreme Court is a veritable ‘bulwark of authoritarian governance’ (Ginsburg and Mustafa, 2008) in a longstanding context of ‘abusive constitutionalism’ (Landau 2013).  The most important role in recent years has been providing judicial support for the regime’s refusal to recognise, engage with and accept the National Assembly’s existence as a branch of power controlled by opposition parties. The legislature had been rendered inoperative by the Court since the beginning of its current term in January 2016, after the political opposition took over the Assembly following its victory in the November 2015 legislative elections.  Shortly after the election, the TSJ’s composition was swiftly recrafted by the departing Legislature (then in hands of the ruling party), ensuring that there was a majority of justices who weren’t only pro-government, but also willing to secure Maduro’s control and preventing any kind of adverse political reform (much less any threat to Maduro regime’s survival).  Ever since, the Supreme Court as a whole -and particularly the Constitutional Chamber- functioned as a judicial mechanism to eviscerate the National Assembly’s existence, functioning and effectiveness (See Perez Perdomo and Santacruz, 2016).  Here, we are not talking about cases that truly involved adjudicating genuine constitutional questions surrounding the National Assembly’s composition, performance and legislation; but rather a deliberate blockade of the Assembly meaningful constitutional role. 

Despite a substantial decrease in the raw number of constitutional cases that arrive at the Constitutional Chamber, particularly since 2010, and the well-documented fact that the Court as a whole is perceived as an arm of the executive branch, in a context with dismal perceived rule of law standards, the Chamber continues to receive and decide cases of major political significance, as part of the country’s dynamics of ‘autocratic legalism’ (Corrales 2015). The government and its allies continue to refer cases to the Court to solve key political questions, and the Court’s decisions continue to make an impact in the country’s political arena. Arguably, no other authoritarian country has recently exhibited such high levels of judicialization of politics, with a range of decisions relevant for controlling the opposition, enhancing governance and safeguarding the regime’s legitimacy with respect to critical actors (Sanchez Urribarri 2020).  This role has included the judicial of repressive actions by different levels of the judiciary (Capriles et al 2020). 

The recent rulings are really good examples of the TSJ’s ongoing role in Venezuela’s authoritarian context.  On one hand, the TSJ’s Constitutional Chamber took a critical step in paving the way for holding the elections of the country’s Legislative Branch, the National Assembly, by appointing new members for the National Electoral Council. In ruling 0070 on June 12, 2020, the Constitutional Chamber decided a case filed by petitioners associated with minority political parties willing to participate in legislative elections organised by Maduro’s regime – notwithstanding ongoing negotiations between the political opposition and the regime. The Court decided to declare the ‘legislative omission’ of the National Assembly to designate the members of the National Electoral Authority (CNE), and went ahead and appointed such members as an ‘indispensable measure, with the purpose of preserving the constitution’s supremacy, and the Republic’s peace and stability’. The designation of the National Electoral Authority’s directive members is a constitutional prerogative of the National Assembly, and was a vital point of contention between the Maduro government and the opposition in their efforts to find a solution to the ongoing constitutional crisis. The regime’s decision to move ahead with the designations via the Constitutional Chamber’s intervention, instead, reflects its will to find a solution that suits only its immediate and long-term interests, allowing to control the electoral contestation arena and define and structure a political opposition that does not challenge the legitimacy of its rule.

On this note, the Constitutional Chamber’s rulings 0071 and 0072 take a decisive step on this direction. These rulings were issued in response to constitutional petitions directed at suspending the designations and functions of the existing directive members of the Primero Justicia and Acción Democrática opposition parties, respectively, for alleged irregularities in their designation and exercise of their prerogatives.  The decisions suspended the parties’ existing directives, appointed other ad hoc members with alleged will to cooperate/collaborate with the regime, ordered the parties’ reorganisation and allowed the new authorities to propose candidates and make use of the party’s name to contest elections, among other decisions. Whilst this kind of ‘judicial intervention of opposition parties’ has happened before, it is the first time they take place against two of the four most important parties of the organised political opposition, as a deliberate attempt to eliminate their effective political participation and the representation of the interests of their constituents. 

These are very important judicial interventions by the TSJ that merit attention in comparative perspective.  The Venezuelan Supreme Court’s position within the institutional structure of Venezuela’s authoritarian regime offers valuable lessons for scholars of law and courts in authoritarian societies. Based on recent caselaw and a history of collaboration with Maduro’s regime, we can rest assure that this role will remain critical throughout its effort to consolidate and institutionalise their rule in the coming years.

Suggested Citation: Raul A. Sanchez Urribarri, The Constitutional Chamber’s Recent Decisions to Enable Legislative Elections in Autocratic Venezuela, Int’l J. Const. L. Blog, July 3, 2020, at: http://www.iconnectblog.com/2020/06/the-constitutional-chamber’s-recent-decisions-to-enable-legislative-elections-in-autocratic-venezuela