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Opinion and Analysis: Law and Justice

Has Maduro Really Dissolved the National Assembly in Venezuela?

What on earth is going on in Venezuela?

Since yesterday, the international media has been ablaze with the news that Venezuela’s National Assembly - one of the five fundamental branches of the state - has been dissolved, quite literally overnight. De facto making Venezuela, well, a dictatorship, according to the mainstream press.

But is it true that the country’s legislative branch has been eliminated in one fell swoop? The short answer is no, not quite.

As usual, there is a grand canyon sized gap between what is being reported in the corporate press and the reality on the ground. Luckily VA is here to clear that up. So let’s start with the facts.

The Facts: Wednesday’s Ruling

The controversy is based around a ruling released by the Supreme Court of Justice (TSJ) this past Wednesday, announcing that, given the National Assembly’s (AN) current “contempt” and “incapacitation” to carry out its constitutional duties, the judiciary will be stepping in in the interim to take its place.

The burning question is: what does the Supreme Court mean by incapacitation, and why does it consider the AN to be in contempt?

The explanation for this goes back to early December 2015, so we ask readers to bare with us as we run through the nitty gritty.

After the opposition won a parliamentary majority in the legislative elections of December 6th 2015, reports emerged surrounding allegations of vote buying in Amazonas state. The National Electoral Council (CNE) launched an investigation in response, while the TSJ made a ruling placing a bar on the four legislators from Amazonas taking office pending the results of the probe. These legislators include two lawmakers for the opposition coalition, the Democratic Unity Roundtable (MUD), an indigenous representative allied with the opposition, and a pro-government legislator.

While this order has been adhered to by pro-government legislators, the opposition has flouted it, not once, not twice, but over and over again.  

The first time was back in January 2016 when the three contested legislators were initially sworn in, although they were promptly removed later the same month. The second time was on July 28th 2016, when opposition legislators took the decision to re-integrate the legislators into parliament in spite of the TSJ order.

Since July, the court has basically assumed that the AN is in contempt, and that its decisions are null, while pro-government legislators have boycotted parliamentary sessions.

This situation has led to the institutional stand-off that you’ve been reading about (although no doubt in slightly more hyperbolic terms) in the international press. In fact, the AN has had not been able to exercise its supervisory controls over the re-approval of President Maduro’s economic decree powers since January 2016, precisely due to this situation.

Since July, there’s been some more to-ing and fro-ing. For instance, the three legislators offered their written resignation to the AN presidency last November as a bargaining manoeuvre in talks with the national government - and then promtly reneged just a few weeks later. Meanwhile, a vote at the AN in January in which opposition legislators agreed to de-seat the three legislators has failed to lead to their removal under conditions established by the TSJ.

These stipulations include officially unseating the three legislators in a ceremony presided over by the AN’s 2016 presidency, which is considered legitimate by the TSJ, and the subsequent re-election of the legislature presidency for 2017. But basically, in legal terms, the National Assembly continues to be in violation of the judicial branch.

In short, when the TSJ was asked to intervene last week by a subsidiary of state oil company PDVSA and decide whether the president can make reforms to mixed public-private businesses without the prior approval of the National Assembly, the court once again echoed many of its preceding decisions by declaring that legislature null. The controversial difference this time was that the judicial body said that it would be standing in for the AN until the situation is resolved.

Despite inaccurate reports from the likes of CNN, the move does not mean that parliament has been “dissolved”. As it stands, the AN still exists, but remains in a state of contempt of the judicial system. Theoretically it can rectify the situation by removing the lawmakers accused of electoral fraud, and continuing to legislate.

The real controversy is whether or not the TSJ itself can assume the legislative role of the AN as a legitimate way out of the deadlock. In other words, can a court actually pass legislation on its own?

Although Article 336.7 of the constitution does give the TSJ the authority to "declare an unconstitutional default in the national, state or municipal legislature... and establish, if necessary, corrective measures," the exact “measures” open to the court aren’t specifically elaborated on. 

Do they include allowing the TSJ to take over the daily affairs of the AN? There’s certainly no precedent for it under the current constitution; but then again, the constitution does establish the TSJ as the ultimate legal body in the country for interpreting the Magna Carta.

If it seems like a complex catch-22, that’s because it is. The situation is also exacerbated by the fact that the act of interpreting the constitution isn’t exactly straightforward, and there’s plenty of grey areas. In fact, even the current attorney general and her predecessor cannot agree on the matter.

While Attorney General Luisa Ortega Diaz this Friday accused the TSJ’s ruling of amounting to a “rupture in the constitutional order,” her allegations were quickly disputed by a former attorney general, Isaias Rodriguez, who said ruling was in accordance with articles 335 and 336 of the constitution.

One thing is certain, however, and that is that the move is a political gift to the opposition, who have taken to social media to call for protests. For them this not only represents the chance to regroup their disillusioned followers around a central demand, but it also allows them to effectively claw back some of the energy amongst their ranks that was lost following the failure of the recall.

Which brings us to the issue of the opposition:

Why Doesn’t the Opposition Just Remove the Three Contested Legislators?

This might seem like the obvious way to speedily resolve the issue, however, given the National Assembly’s record since December 2015, it seems unlikely that they will pursue this course of action. And not just because they have refused to do so so many times before.

Over the past year, the AN has almost exclusively focused on trying to remove Maduro, and overthrow the TSJ,as opposed to effectively legislate for the country.

At the beginning of 2016, when the National Assembly was actually in a position to pass legislation, it managed to approve just four laws. Three of these were subsequently blocked by the Supreme Court for violating the constitution, most notably the infamous Amnesty Law, while their Law for Medicine and Food Bonuses for Pensioners was upheld.

Although opposition supporters would blame the Supreme Court, the National Assembly’s failure to pass legislation has mostly been because so much of it has been so blatantly unconstitutional. Their efforts to retrospectively shorten Maduro’s term last year, or to declare the president’s abandonment of post earlier in January, are two prime examples of this.

The game plan here is quite clear: the opposition wants to create as much friction with Maduro as possible while establishing itself as a victim of his creeping authoritarianism. It doesn't want to legislate.

In this sense, whether intentional or not, the TSJ’s latest ruling will play right into the opposition’s hands. In fact, it’s perfectly reasonable to argue that is in the opposition’s interests for this stalemate to continue: it provides them with a short term political purpose and also serves as fuel for their accusations surrounding Venezuela’s descent into "dictatorship" in the international arena.

What about the government?

Reacting to the crisis on Friday night, President Nicolas Maduro revealed that he had called for an immediate meeting of the National Security Council to address the stand-off between the two powers, while vehemently denying that democracy is under threat in the South American nation. Nonetheless, Venezuela’s Ministry of Defence has yet to make a statement regardin the ruling, generating speculation that the TSJ decision has provoked a crisis at the heart of Chavismo.

Internal crises aside, what can we expect the TSJ to do with its new legislative power? Frustratingly, the answer is probably something along the lines of “nothing”, as it’s clear the TSJ’s decision isn’t part of some kind of larger master plan on Maduro’s behalf.

Unlike the opposition, which has used its platform at the AN as a space to galvanise political wills to its ranks instead of legislate, for the government the opposite is true. In the political arena the national government has retreated from attempting to win the battle against the opposition by deepening the revolution as a hegemonic project that resonates with its rank and file, and has increasingly fallen back on a defensive, legalistic position.

Maduro has made almost no observable effort over the past year to tackle the roots of Venezuela’s most pressing issues, such as the economy, crime and corruption, and the government appears to have no clear roadmap out of the current political/economic crisis, let alone any obvious plans for advancing with the revolution. The closest thing to a short term game-plan is simply remaining in power.

On the one hand, an optimist could say the Maduro government is just trying to hold on and live to fight another day, while legitimately taking advantage of legislative mechanisms to stave-off the opposition’s reactionary advances. On the other hand, grabbing at available straws and flailing around while the opposition sets the agenda doesn’t exactly bode well for advancing in a revolutionary direction. Especially with some exceptionally worrying economic initiatives and the controversial Orinoco mega-mining project lurking in the background.

Reactions and Potential Impact

It’s obvious that there is a deep institutional crisis in Venezuela, as well as a situation of profound uncertainty, and the immediate future of the country is extremely unclear.

While Wednesday’s decision immediately infuriated the opposition, with prominent leaders of the right-wing accusing the TSJ of being part of a coup, Venezuela is also now also facing renewed international blowback. Right-wing governments in Brazil Argentina, Mexico, Colombia, Chile, Guatemala and Panama have all expressed strong concerns over the state of Venezuela’s democracy. Peru has already pulled its ambassador from Caracas, and the US has described the court’s decision as a “serious setback for democracy in Venezuela”.

This is just a three days after the OAS held an extraordinary session to address the stand-off between Venezuela’s branches of government and its alleged “democratic crisis”. Despite the fact that there seemed to be little appetite for suspending Venezuela from the organization earlier in the week, there is now renewed speculation the Organisation of American States might invoke the Democratic Charter, which could leave Venezuela more isolated than it’s been in decades.

Meanwhile, the reaction on the streets of Caracas is mixed. On the one hand citizens report that they are continuing with their day to day activities unphased, but on the other there are unconfirmed reports of opposition activists distributing fliers calling for mass civil disobedience. The last time that happened was in 2014, when dozens of people were killed after armed anti-government groups took to the streets. The majority of those killed were either government supporters, members of state security forces or innocent passersby.

As of Friday, there were also more unconfirmed reports of a massive exodus of opposition leaders from the country. Former presidential hopeful and Miranda Governor Henrique Capriles, right-wing firebrand Lilian Tintori, a handful of AN members and other prominent opposition personalities have all supposedly quietly left Venezuela in recent days. To say this is a tense moment for Venezuela would be an understatement. As Jesus Puerta pointed out in an Aporrea piece, “It must be recognised that the situation is not normal.”

Meanwhile social movements such as the Bolivar and Zamora Revolutionary Current have denied that there is a rupture of constitutional norms, while throwing an important critique into the heart of the debate. Primarily, that the ongoing stand-off between the two branches of Venezuela’s representational government mask the real task at hand: to build a functioning, community-based and direct democracy. A horizon which they say is increasingly being lost from sight.

To summarise, Wednesday’s TSJ decision is the result of a long running dispute with the AN, which could be resolved at any moment by the legislature, if it just removes a group of lawmakers accused of electoral fraud. Unfortunately, the opposition controlled AN seems not only disinterested in resolving the conflict, but also wants to deepen it, as part of its campaign to delegitimise Maduro and destabilise the country. Whether or not the TSJ can actually assume legislative power remains unclear, though the decision already looks like a bad outcome for the government. It’ll likely hurt Venezuelan internationally, while also fanning the flames of discontent back home. Moreover, far from being reduced to a dictatorship, Venezuela looks well on its way to re-establishing itself as yet another neoliberal, representative government in Latin America at the general elections in 2018 thanks to the government's inaction. And that’s the most worrying part.