The new [un]constitutional order in Venezuela

Getty Images. F. Parra

By Acceso a la Justicia

Venezuela arrived in 2021 as a de facto State forged by institutions that, over the last two decades, have risen against the Constitution. This has allowed the authorities of the Government party attached to the power, in addition to imposing their political model definitively.

This process of institutional breakdown, repeatedly denounced, has been accelerated since the opposition won the parliamentary elections in December 2015, at the point that Nicolas Maduro´s Government deployed its artillery to prevent and neutralize the constitutional faculties of the Legislative, as well as reinforcing control in all areas of the life of citizens and the consequent elimination of their rights and constitutional guarantees.

Nowadays, all subjection or subordination of the institutions to the constitutional rule and international human rights treaties in force in Venezuela has been eliminated. In fact, the Executive branch is above the rest of the public branches, basically because the Supreme Court of Justice (TSJ) has allowed it, permitting to seize an absolute power, promoted particularly by the Constitutional Chamber decisions, that differ greatly from the content and spirit of the Constitution.

To describe the factual institutional reality that exists in Venezuela, it is enough to review some of the situations that have occurred throughout this period, which not only represent a violation of the constitutional order, but have also led to the creation of a parallel state organization that openly clashes with the organizational and functional platform contemplated in the Constitution, with the purpose that the Executive branch governs without any type of control or obstacle.

1.- Expedited appointment of the Supreme Court judges

The appointment of the authorities of the country’s highest court has been outside the constitutional frame at the same time that Chavismo began to govern since 1999. However, in 2015 it would reach its zenith when the National Assembly, dominated by the ruling party on the last year of legislature, thirteen main magistrates and twenty substitutes were appointed, deliberately omitting the constitutional procedure and the legislation related with the TSJ.

Additionally the thirty-two main magistrates of the Supreme Court of Justice, appointed since 2010, very few meet the minimum professional requirements to hold these positions. This maneuver would be one of the key actions of Maduro Government, because by controlling the judiciary branch, stability and permanence in office have been guaranteed.

A third of the thirty-two magistrates of the Supreme Court were former government officials or have relatives in it, while only two have opposed decisions that openly favor the interests of the Government.

2- Irregular appointment of the electoral rectors

Another notorious example of violation of the constitutional text occurs when, in an illegitimate way, the Supreme Court has decided during the last seventeen years to assume the appointment of the members of the National Electoral Council (CNE), above the provisions of the article 296 of the Constitution. This article determined the appointment procedure for the electoral rectors, a faculty that corresponds to the parliament by the vote of 2/3 of its members.

Since 2003, the Constitutional Chamber has appointed all CNE rectors, both main and substitutes. A practice repeated in 2005 after a partial renewal of its members, and then in the appointments of 2014 and 2016. Only two occasions the Parliament has made the appointment (2006 and 2009).

As if all this were not enough, in 2020 this Constitutional Chamber monopolized the absolute control of this function, after expressly appointing and swearing in the five main members and ten alternates of the body. Guaranteeing government control in the parliamentary elections held on December 6 of that same year, in which the official coalition (Gran Polo Patriótico) would comfortably prevail by more than 67% of the votes.

Due to this practice, the Constitutional Chamber has taken over the electoral administration, imposing a CNE of partisan dominance and in favor of the national government interests.

3- Arbitrary appointment of the Republican Moral Council

Another worrying situation is the appointment of the members of the Republican Moral Council (Ombudsman, Public Ministry and the Republic General Comptroller), made without complying with the guidelines established in the Constitution.

Since Hugo Chávez assumed power in 1999, he sought to dominate all the public powers of the country, and the National Constituent Assembly (ANC) was a key piece for this. The ANC was subjected to the designs of the former president, and with the argument that it was supra-constitutional, it imposed on the authorities of each of the organs that make up the new Citizen Power, regardless of what the constitutional text said.

The same situation arose when the parliament elected in 2000 promoted a law for the election of the members of the public powers, in which the representatives of the organized sectors of civil society would be excluded, in violation of Article 279 of the constitution. This has allowed the Miraflores Palace to have under its control the Legislative branch, responsible, among other aspects, for the criminal investigation, the fight against corruption and the defense of human rights.

These changes would take a new level in 2017, when the ANC summoned by Maduro, without following the constitutional procedure and usurping the exclusive power of the sovereign in order to neutralize the parliament, decided to appoint the heads of the Ombudsman’s Office, the Public Ministry and the Comptroller General of the Republic.

Is important to emphasize that a few days after its installation, the ANC dismissed the attorney general, Luisa Ortega Díaz, and appointed the ombudsman, Tarek William Saab as head of the Public Ministry and his deputy as substitute defender, after the former prosecutor fall out of favor with the national government for his statements against the Supreme Court due to judgments 155 and 156 of the Constitutional Chamber, which had stripped the AN of its powers and declared it in disobedience.

4- Fraudulent elections of 2017, 2018 and 2020

Another irregular case that leaves the configuration of a de facto State in total evidence is the holding of electoral processes in the country during the years 2017, 2018 and 2020 outside the Constitution and international standards, through arbitrary procedures used by a CNE that, indisputably, favored the ruling party to the detriment of the opposition, the will of the electors and democratic alternation

The election of the Constituent Assembly (July 2017); governors (October 2017) mayors and municipal councils (December 2017); the presidential election and of representatives to the states legislative councils (May 2018); and the recent parliamentary election (December 2020), were marked by different constitutional and legal violations, such as the outlawing and judicial intervention of opposition parties, the disqualification of opposition leaders, blackmail with the food boxes of the Local Committees of Supply and Production (CLAP), the installation of partisan outposts near the voting centers so that voters could check with the illegal “Carnet de la Patria” and the modification of the electoral system.

These actions affected the transparency, integrity, and impartiality of these elections and have called into question the legitimacy of the elected authorities. Therefore, it was no surprise that the United Socialist Party of Venezuela (PSUV) swept all elections, even that Maduro himself was re-elected as president in a process marked by a series of electoral crimes, upon being summoned by the ANC of In an early manner and on a date contrary to the democratic tradition of Venezuela, apart from being sworn in illegitimately before the Supreme Court, a body that lacks the power to swear in officials elected by popular vote.

Special mention should be made of what happened in the parliamentary elections of December 6th, 2020, designed to suit the political interests of the Maduro Government by the CNE, failing to comply with the minimum standards to guarantee a fair, free and transparent process.

The scenario described allows us to affirm that in Venezuela there is a deep institutional crisis that has turned the rule of law into a de facto State, where all public branches are illegitimate and unconstitutional, since none of its authorities has been designated or selected according to the norms constitutional nor respecting the most basic principles to guarantee their autonomy, democracy, checks and balances, and aggravatedly, under the approval of the Supreme Court.

And to you Venezuelan, how does it affect you?

Unfortunately, 2021 arrives for Venezuelans with an institutional setback, which is accompanied by the humanitarian tragedy and the ravages of the COVID-19 pandemic, facts that expose an inefficient government that does not address the continuous claims of citizens to the serious and complex crisis that is being experienced, nor does it use its power to reestablish the broken institutionality.

The implantation of institutions omitting the provisions of the Venezuelan Constitution only confirms the breakdown of the constitutional order and, consequently, the rule of law, respect for human rights and democracy.

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Originally posted in Spanish on Acceso a la Justicia

Translated by Xavier Rodríguez Franco