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CARACAS, Venezuela — Hundreds of thousands of people are clogging the streets of Venezuela to protest a power grab by the country’s increasingly unpopular president, Nicolás Maduro. At least 32 people have died in clashes with police and soldiers, and eight more while looting stores, and the political and economic chaos ravaging one of the world’s biggest oil-producing nations shows no signs of slowing anytime soon.
It would be easy to blame it all on Maduro, who has been looking for ways to sideline the country’s opposition-controlled parliament. The real culprits, though, are the justices of Venezuela’s supreme court, who stunned observers inside and outside the country late last month when they passed a ruling essentially dissolving parliament and taking all of its powers for themselves. That meant Maduro’s United Socialist Party — which effectively controls two of the three main branches of the government in Venezuela — had made the third branch largely irrelevant.
The ruling was reversed on April 1, but the damage was done. Opposition leaders accused Maduro of trying to turn Venezuela into a dictatorship and said the court — nominally committed to enforcing the country’s constitution — had instead shredded the document by carrying out what amounted to a judicial coup.
Americans love to complain about activist judges. The judges on Venezuela’s supreme court are the living embodiments of that, essentially functioning as an arm of an unpopular government. To get a sense of just how completely the court has allied itself with Maduro, take a look at this video of its judges defending their controversial decision eviscerating parliament.
The man in the middle, Maikel Moreno, is the chief justice of the court and a close Maduro ally. The man sitting to the right of Moreno, fidgeting with a pocket-size copy of the constitution, is the vice president of the country. His presence reveals a lot, since the court is supposed to be independent of the executive branch. It isn’t.
The initial ruling had triggered protests, international condemnation, furious attacks by opposition leaders, and even rare public criticism from Venezuelan Attorney General Luisa Ortega Díaz, normally a reliable Maduro ally. She derided the move as “a rupture of the constitutional order."
Amid the outcry, Maduro exhorted the high court to review its rulings. Hours later, Moreno announced that the court had revised the rulings, reversing the most controversial part — in which the court took over parliament’s powers. However, that didn’t change any of its practical implications, since Maduro can still bypass parliament to do anything he wants, including signing foreign financing deals. The revised rulings still explicitly allow him to modify existing laws or bypass parliament entirely any time he considers it necessary to guarantee the stability of the country.
What matters isn’t the content of these rulings — Maduro and his allies in the judiciary have already effectively stolen many of parliament’s powers. What matters is what the rulings show: The Venezuelan supreme court, which should be one of the broken country’s last checks and balances, has been turned into a political weapon.
In Venezuela, the supreme court is a political weapon
The high court’s transformation into an arm of the Maduro government comes at a terrible time for the oil-rich country, which is already mired in a deep economic crisis marked by widespread food shortages and inflation projected to rise by more than 700 percent this year.
Maduro has reacted by attacking opponents at home and abroad. He’s derided the anti-government protesters “as vandals and terrorists” and ramped up his rhetoric against the US, which he regularly says is a decaying empire and a sponsor of terrorism. On Thursday, the Maduro government seized the assembly plant of General Motors in Venezuela, leading the American giant to pull out of the country.
The president, meanwhile, is increasingly acting like an autocrat. His government has blocked efforts to oust him through a referendum and delayed local and state elections. Earlier this month, Maduro’s government banned opposition leader Henrique Capriles from politics for 15 years. Capriles, according to CNN, promptly accused Maduro of acting like a dictator.
Maduro wasn’t always so reliant on the court — or so hostile to his country’s parliament.
When his party had a majority in parliament, Maduro’s government relied on it to rubber-stamp anything it wanted. Security forces would keep the opposition intimidated and, if necessary, imprisoned. The strategy worked perfectly for them. But on December 2015, the ruling party got shellacked in parliamentary elections, with the opposition winning a huge two-thirds supermajority that meant they would have been able to rewrite the constitution, remake the supreme court, and remove government ministers. That’s what the court stepped in to block.
Maduro is a ruthless politician, and he quickly found a way to work around the legislature: relying on the Venezuelan supreme court as his new weapon of choice against the opposition. Little by little at first, and much more aggressively later, he had a handpicked court take over pretty much all of parliament’s power.
“Since 2004, the supreme court has been an arm of the executive branch,” says Antonio Canova, a Venezuelan law professor and constitutional expert.
Two weeks after the 2015 election, the outgoing government-controlled legislature appointed 13 new justices to the supreme court in the lame-duck sessions (the court has 32 in total). Never mind that there were no actual openings on the court; instead, 13 of the existing justices decided to “voluntarily” retire. Never mind as well that the ruling party’s bloc in parliament lacked the constitutionally mandated two-thirds vote to appoint justices; the supreme court ruled they could do without it.
At the time, it seemed odd that the government felt the need to replace those 13 justices, since all of them were government loyalists. That was by design: In 2004, the government gained control of the supreme court by modifying the law that regulates it, allowing the government to increase the number of sitting justices from 20 to 32 and fill those jobs with political cronies.
Canova, along with three co-authors, published a book in 2015 that analyzed 45,000 of the court’s rulings in cases tied to the executive branch between 2004 and 2013. They found that in all those years, the court never ruled against the executive. Not once.
The International Bar Association and the International Commission of Jurists have criticized the Venezuelan courts for their lack of independence and said the rulings pave the way for human rights abuses by the government. The two groups have joined other watchdog organizations in raising these issues at the United Nations Human Rights Committee.
The court took a lot of liberties when interpreting legal precedents and jurisprudence to make sure its rulings always went the government’s way. According to Canova, the court regularly contradicted itself, and numerous rulings went against basic legal precepts.
“The justices would point to an established precedent or jurisprudence and use it to justify a ruling, and in a following case they would use the same precedent as a justification to issue a completely opposite ruling to the previous case,” Canova says.
The strange case that triggered Venezuela’s current political chaos
The legal drama that ignited Venezuela’s political crisis began in early 2016, after Maduro’s party suffered devastating electoral losses in parliamentary elections. Maduro’s allies on the supreme court promptly stepped in to block three opposition lawmakers from being sworn in — just enough to ensure the opposition didn’t have the supermajority it needed to make major changes to the country.
Here’s where things get dramatic: The opposition-controlled parliament swore them in anyway. The justices then ruled that parliament was in contempt — an extraordinarily broad attack at a co-equal branch of government. The opposition has agreed to remove the three deputies to get itself out of the court’s crosshairs, but the justices have rejected the moves as insufficient. Put another way, parliament tried to surrender; the court refused to accept it.
The court went even further in late March 2017, setting new limits on parliamentary immunity and giving Maduro the ability to modify existing laws — taking away one of parliament’s most important powers. For good measure, the court ruled that Maduro could change the law that regulates the oil sector and to sign new oil joint ventures with foreign companies. Finally, it effectively dissolved parliament and assumed its powers. The court’s reasoning: Parliament remained in contempt of court because of the unresolved fight over the three lawmakers.
Maduro is more powerful than ever, but his country is more fragile than ever as well. The biggest challenge comes down, as so many things do, to money.
Maduro badly needs foreign money. Can a friendly court ensure he gets it?
Maduro now needs the court to give him the powers — which are almost certainly unconstitutional — to negotiate and sign deals designed to raise enough money to keep the country from defaulting on its foreign debt.
After years of mismanagement, Venezuela is going through a deep economic and humanitarian crisis. While most analysts expect the country to make the big foreign debt payments due in the coming months, there are fears that it won’t be able to pay what’s due after that. A default on its foreign debt could mean having oil shipments and assets abroad seized by creditors. The government is running out of options to raise funds: It has already drained its foreign reserves, sold its gold, cut its imports drastically, and mortgaged half of its stake in Citgo, the US subsidiary of the country’s state-owned oil company, to Russia.
Venezuela could raise funds by forming new joint ventures with foreign oil companies, or issuing more foreign debt. The problem for Maduro is that those deals require congressional approval from the parliament that he’s worked hard to sideline and that his supreme court tried to dissolve.
While the court recently ruled that the government doesn’t need this approval, foreign financiers, multilateral organizations, and other countries have balked at lending money without congressional signoff.
That might be a smart play politically. Opposition lawmakers have warned that deals signed without their approval will be considered null and not be honored by a future government led by them. With Maduro’s approval rating hovering around 20 percent, and presidential elections slated for late 2018, his ouster by the opposition seems like a real possibility.
With his poll numbers plummeting, many Venezuelans are wondering whether Maduro will keep his job and what tricks he’ll need to pull to do so. One thing is clear: Whatever he does, the country’s supreme court will be there to rubber-stamp it.
