The Venezuelan Supreme Court in Exile

—Manuel Casas, doctoral candidate, Yale Law School and Rolando Seijas, doctoral candidate, Cambridge University, Faculty of Law

On April 9, 2018 a group of Venezuelan Supreme Court judges gathered in the Colombian Senate to decide whether to initiate a criminal proceeding against Venezuela’s authoritarian president, Nicolas Maduro. The opposition-controlled parliament—the National Assembly—had appointed these judges to the Supreme Court on July 21, 2017. Shortly after their appointment, most of these judges were persecuted by the government and had to flee abroad. Once outside Venezuela these judges have been operating, or trying to operate, as a Supreme Court in exile. The appointments came in the midst of street violence caused by the confrontation between protesting civilians and military and police officers. The protests caused the deaths of at least 100 persons. Its origin was a stalemate between the National Assembly, Maduro and the judicial power he controlled.

In Bogota, the Venezuelan judges decided to allow proceedings against Maduro.

The request to prosecute him was presented by Attorney General Luisa Ortega Díaz. The Judges decided that there were enough grounds to judge Maduro based on the evidence presented by Ms Diaz. She filled documents and presented arguments that showed a corrupt relationship between Maduro and the recently infamous Brazilian construction firm Odebretch. Under Venezuela’s Constitution, a decision by the Supreme Court to judge the president would mean the immediate removal of Maduro from office. This is unlikely to happen, since in Venezuela the government controls all State Institutions. The issue this post addresses, however, is whether decisions from this Supreme Court in exile have any meaningful consequences that might affect the crisis in Venezuela?

1. Is the Supreme Court in Exile Legitimate?

On December 6, 2015, the Venezuelan opposition won a parliamentary election, obtaining two-thirds of seats in parliament. This gave the opposition an opportunity to appoint judges to the Supreme Court. Nonetheless, the government lead by Maduro was reluctant to allow this. Members of the lame-duck, government-controlled National Assembly wrongfully decided to: (i) extend their constitutional mandate for almost two weeks and (ii) rush the appointment of these judges; and (iii) appointed them without the required qualified majority. Indeed, they held a session on December 23 and finished the appointment process in less than two weeks. This significantly violated the Constitutional procedure to appoint these judges. According to the Venezuelan Constitution and the Supreme Court’s Statute, the appointment process should last at least 55 days. This is to ensure sufficient vetting and to allow other institutions and civil society to participate in the process. This, of course, did not happen.

In early January 2016, as soon as the opposition assumed control of the National Assembly, the Supreme Court (packed with the improperly appointed judges) struck down through judicial review every single decision and law passed by the Assembly. The Assembly, for its part, decided to investigate the appointment procedure of these judges. Several of the replaced judges, whose term had not expired yet, came forward and declared they were harassed and threatened so they would resign before the end of 2015. After a year, the Assembly decided to appoint new judges to the Supreme Court. The government persecuted the newly appointed justices. It incarcerated—and purportedly tortured—one of them: Angel Zerpa. The rest of them were fortunate enough to escape into exile. These judges in exile have been capable to meet and held sessions at the headquarters of the Organization of American States and recently at the Colombian Senate.

2. Is a Supreme Court in Exile Viable?

The possibility of this Supreme Court in exile to ever enforce their decisions against Maduro or any other senior Venezuelan official within the country is very low. But we still argue that this Court might have a modest yet relevant role to play in the unfolding Venezuelan crisis. There are a series of actions this Court might pursue that with relevant international backing can impact the Venezuelan government. Support from the international community is key. It can come in two ways.

First, it is possible (albeit unlikely) that States recognize the Supreme Court of Justice as a court in exile. There are precedents in international law recognizing governments in exile. The international community has recognized that legitimate governments might be overthrown by the use of force. Hence, the international community refuses to recognize the new government and provides shelter and recognition to the government that has been forced out. This happened throughout the second world war with the governments of several States invaded by Nazi Germany. It also happened more recently in Haiti after the 1991 coup.

This approach, however, has one main problem: the principle of the unity of the State. The application of this principle entails that it is only possible to recognize the State as a whole. States therefore cannot pick and choose to recognize specific branches of governments. Yet it is possible to argue that a flexible application of such principle is warranted in this case. The underlying principle for the recognition of governments in exile still applies: members of the Supreme Court were persecuted and forcefully expelled from the country. Moreover, unlike other cases involving the recognition in exile of a specific branch of government, here the Supreme Court in exile was appointed in accordance with the applicable Venezuelan laws and by the competent Venezuelan institution (the National Assembly).

A second alternative is for States to enforce the rulings of the Supreme Court in exile. This alternative does not require explicitly recognizing the Supreme Court in exile as something analogous to a government in exile per se, but only recognizing the validity of their rulings. Hence, other government or foreign courts might enforce the rulings of the Supreme Court in exile, following the proceedings generally used for the recognition and enforcement of foreign judgments, without the explicit need to give consideration to the recognition of the Supreme Court in exile as a government in exile.

In practical terms, the recognition of either the Court or the validity of its rulings by the international community might have consequences that hinder the Venezuelan regime. First, the Court may challenge the legal validity of any external financing mechanism pursued by the Venezuelan government. This could generate doubts among relevant lenders. Second, if recognized, the Court might have jurisdiction over both former Venezuelans officials living abroad, and the property of current officials located in foreign countries. Lastly, even though a longshot, it is possible to imagine that several lower courts in Venezuela might choose to follow the criteria of the Supreme Court in exile, creating a sort of judicial disobedience to the government.

The Supreme Court is not bound to become a radical player in the Venezuelan crisis. Nonetheless, with a correct strategy and international backing, it can become an obstacle to Maduro’s government. This is an option that is worth considering, especially when witnessing the hegemonic power of the current Venezuelan regime.

Suggested Citation: Manuel Casas and Rolando Seijas, The Venezuelan Supreme Court in Exile, Int’l J. Const. L. Blog, Apr. 22, 2018, at: http://www.iconnectblog.com/2018/04/the-venezuelan-supreme-court-in-exile