Editor’s note: Venezuela’s legislature, the National Assembly, recently passed a controversial new law of the Supreme Tribunal of Justice (TSJ). Following marathon sessions and article by article votes, the bill was passed. While the opposition says the bill is unconstitutional and will allow President Chavez to pack the court, pro-government representatives say that it is a badly needed bill to improve Venezuela’s judicial system. This is the first in a series of articles on the new law. Next installment will be an interview with constitutional expert and former Supreme Court judge Carlos Escarrá.
There is a presumed Constitutional expert making the rounds in Venezuela’s media with conclusions on the new Supreme Court (TSJ) Bill. After doing my homework and verifying what this “expert” in matters of the Constitution had to say, I ended up with mixed feelings. My conclusion had to be one of these two: either I am an expert myself or he is just a quack. Since I know, as a matter of fact, that I am not an expert, I had to conclude that the opposition Constitutional expert Gerardo Blyde IS a quack.
According to Blyde there were ten violations to the Venezuelan Constitution incurred in this Bill. Let’s take a look at them.
1. The new TSJ law should have been approved with a qualified majority. Art. 203 of the Constitution explicitly says that a qualified majority will apply to changes in any Organic bill like the TSJ Bill. The Bill was approved with a simple majority.
This is in principle true. Article 203 of the Constitution indeed indicates that a qualified majority should approve organic laws, which is 2/3 of the votes. The article refers though to 2/3 of the Assemble members “present before the start of the discussion of the law”. I am not an expert, but the question seems to be rather how many people were present “before” the start of the discussion. The law should have been approved by 2/3 of that number. I have not check but I am pretty sure that is the case.
2. The Constitution establishes in Art. 209 that any report on any proposed Bill has to be approved article by article. Articles were twice approved in blocks.
This is a half-truth. Not every article was discussed. Some were consolidated in longer articles and the Assembly considered that some were already contained in other approved articles. It is very subjective to think that this was illegal. The basic point is that all articles were discussed and approved one way or another.
3. The number of Justices is increased from 20 to 32. The current number of twenty was established by the Constituent Assembly after it approved the new Constitution. This is thus considered a “constituent act” according to Blyde, which implies that only a change in the Constitution can modify it.
This claim is false. Article 262 of the Constitution indicates that TSJ will function in the different Chambers “which integration and competency will be determined by its organic law”. Its organic law, this one being approved, says that there will be 32 Justices from now on.
That is clear enough.
4. All position named by the national Assembly require a two thirds or qualified majority. The Constitution is silent on the majority required for the naming the Justices of the highest Court. To Blyde this implies that the qualified majority extends to the naming of the Justices.
This is pure speculation. The new TSJ Law requires the Justices to be approved by 2/3 of the vote. As a way to increase its efficiency, if the vote is not possible after three tries, the vote will be change to simple majority. The real problem the “expert” has with this issue is that the government has the support of the simple majority in the Assembly. This is his problem, not ours.
5. Art. 264 of the Constitution establishes that nominations to the Court have to be made via a Nomination Committee, chosen by the Judicial power, which will pre-select the candidates so that a second selection is made by the citizens power and then the National assembly will choose the Justices. In the new Bill Nomination Committee is chosen by the National assembly itself and will have Deputies in it. Additionally, it allows the citizens power to override the selections of the Nomination Committee and even consider new candidates.
Our expert is lying again. Article 264 says, “The law will determine the procedure to select the Justices”. It does not say that the Judicial Power will choose the members of the Nomination Committee. The new law does not allow the Citizens Power to override the selections of the Nomination Committee and even consider new candidates. This is nowhere in the new law. Is he lying or is he too smart for our own good?
6. Alternate Justices will not be named for twelve years as established by Art. 264 of the Constitution but for two years.
False! Article 264 does not even mentioned “alternate justices”. Mr. Blyde is an expert indeed, but at lying.
7. The Constitution establishes in Art. 336 that it is the exclusive role of the Constitutional hall of the National Assembly to exert control over the acts of the National Assembly which relate to the Constitution. However, the National Assembly introduces the ability of the Assembly to void the naming of a Justice by simple majority.
This is the same issue he raised in number 4 above, but with a twist.
He really has a problem with that “simple majority” voiding or approving anything.
8. The Constitution states that a Justice can only be removed with a qualified majority of the National Assembly when a Justice commits what is considered a “grave fault”. The new Bill gives the Citizens Power the ability to suspend a Justice until the assembly determines that he should be removed.
Boy! He is not very bright either! I wonder if Blyde would allow an accused rapist to date his daughter until the rapist is found guilty or innocent. Get the picture? I am in favor of the suspension.
9. The Constitution states explicitly that only the president and the Deputies of the national Assembly would need the approval of the Assembly to allow a trial of any of them to decide on their removal. The new Bill extends this approval to military officials, the Vice-President, the Justices and the members of the citizens’ power.
I do not see anything wrong here. He might be still worried about that simple majority. Does he think that the MVR will always have the majority of the seats? This is the reason why some of them believe that the only “solution” is not pacific. Other than that, I do not see his logic in calling this a “violation” of the Constitution.
10. Only the Constitutional Hall can act on its own to rule on a violation of the Constitution because its decision does not necessarily have an interested party but defend the rights of everyone, which goes beyond a party bringing suit. The new Bill allows all Halls to act in this way.
No, he is not bright at all! Per this new Bill, the decision (in their favor!) of the Electoral Chamber approving the signatures that have been now sent to be repaired, and ordering the CNE to call for a referendum would have had a lot of more weight. What is his problem?
Gerardo Blyde is an expert only for the opposition. His job is to raise hell for every single move the government makes. As an “expert”, he does not expect people to question his “brilliant” arguments. However, in Venezuela some people have learned to read and the opposition does not like that. Its leaders are made out of sand and they crumble with a little bit of rain. If we pay attention, an expert like Blyde can be reduced to what he really is: a swindler!