A blank check for Chavez?

January 29, 2004


The Constitutional Hall of the Venezuelan Supreme Court made a decision this week that may have a far reaching impact on the country. First some background:


-One of the most curious features of the new Venezuelan Constitution is that it did not establish the number of Justices for the Supreme Court. The Constituent Assembly said at the time that the previous Organic law of the Supreme Court should be used, which consisted of twenty Justices and the previous Supreme Court Law should be used for its functioning. Thus any change to its Law was thought to be a modification of the previous law.


-Organic Laws in Venezuela take precedence over others. They are given priority in their discussion in the National assembly and according to Article 203 of the new Constitution: “All Organic bill projects, except those that are thus qualified by the Constitution on its own, will be admitted by the National assembly by the vote of two-thirds of the members present at the beginning of the discussion of the project of the bill. This qualified vote will be applied to modifications of Organic bills”.



-Chavez’ MVR has made a proposal for a new Organic law of the Supreme Court. Among other things, the bill increases the number of Justices from 20 to 32. If the Chavez controlled majority were to name an additional 12 Justices with its simple majority to the Supreme Court, a Constitutional Dictatorship could be established in Venezuela, since the Court would answer to Chavez’ whims and wishes. A two thirds majority would require 110 Deputies, while Chavez’ MVR only has 83 or 84 Deputies today.


Well, on Monday the Constitutional Hall of the Supreme Court decided by a vote of three to two that “articles of the Organic Law of the Supreme Court can be approved by the votes of half plus one of the Deputies present in the sessions”. Now this is a HUGE change, this says than rather than the 110 Deputies which the Constitution appears to prescribe, you need only 43 votes, since quorum is 84 Deputies and you would need half plus one of those. Not being a lawyer, from what I understand the decision by the court is based on article 209 of the Constitution which says that modifications to bills will be approved by the favorable vote of the majority of the Deputies present.


The decision has been publicly criticized by the two dissenting Justices who say this would give the Chavez majority in the National assembly carte blanche. These two Justices argue that Article 203 says that bills defined by the Constitution can be approved by simple majority (84 Deputies); but that changes to previous bills require a qualified majority and that the new Constitution changed the name of the Supreme Court but did not eliminate it.


The question is whether this will have an impact on the decision for the recall referendum or not. The opposition has been filibustering the discussion of the bill which means that only one article is approved at each session. At this pace, it will be difficult for the National Assembly to approve the new bill unless the regulations for internal debate of the national assembly are modified. Chavez’ MVR has been trying to do this for the eight time in one year, in order to be able to approve the bill without having to negotiate with the opposition. Even if approved, the procedures for selection and approval of the new Justices also take time, prolonging it even more. Thus, it appears to be difficult that the new Law will have an effect on the recall referendum itself even if the decision by the CNE is delayed a month or so.


However, a new Supreme Court could be in place right around the time that the recall vote against Chavez takes place. In that case, the issue of whether Chavez can or not run if he lost the recall vote in the subsequent election,would be defined by the new Court.


While some people believe that the Constitution is vague as to whether a recalled President can run to replace himself, I find the argument contrived. Article 233 of the Constitution defines the recall vote as an “absolute” absence. The same article says that when there is an absolute absence in the first four years of the term, an election will be held to elect a “new” President. This “new” President is not elected for a six year term, but to complete the term of the recalled President. Besides the fact that it seems absurd that a recalled President may run, the terms absolute and new seem pretty clear to me. Moreover, the fact that the new President is there only to complete the term of the recalled one would seem in my logical mind to nail it. But what do I know anyway.


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