The phenomenon of the legitimate TSJ

By Luis Manuel Aguana

I would like to thank Dr. José Vicente Haro for his excellent article on Wednesday, June 20, published in this blog entitled “¿Is the Venezuelan Supreme Court of Justice in Exile legitimate and constitutional? (see in Spanish at http://ticsddhh.blogspot.com/2018/06/es-legitimo-y-constitucional-el.html). I generally only refer to those materials that I consider relevant to support any argument. However, the subject is so transcendental that I preferred to publish directly the explanation sent to me by Dr. Haro, with an explanatory note.

However, this is not enough. I believe it is necessary to address several aspects that revolve around what I will call “the phenomenon of the Legitimate TSJ” and that are related to the attacks that this institution is receiving from various sources.

Indeed, as I mentioned in the explanatory note prior to Dr. Haro's article, a campaign is being launched to discredit the legitimate TSJ operating in exile, which is paradoxically emerging from local "influencers" linked to the official opposition: why is this happening? What is the real meaning of this? Why, if the opposition itself appointed them in the National Assembly, and then abandoned them to their fate, is they now being attacked by mummification, dismissing their decisions or, worse still, not complying with them?

This is a complex situation that could be considered a natural consequence of the serious process of political decomposition that is taking place in Venezuela and that runs parallel to the final spasms of a way of doing politics in our country for much, much longer than the Chavista revolution has. And something that, in my opinion, is the precise bottom line of the problem: since there has never been a real separation of powers in Venezuela, what is happening with the Magistrates in exile, who have had to  survive and do the work of collaborating to bring the dictatorship out of Venezuela, is showing us in an unprecedented way, a collateral perspective that we had never imagined: a Judicial Power without ties.

Although it is true that the magistrates in exile were proposed by the different political factors of the National Assembly to occupy these high positions - as always happened - an unusual phenomenon is taking place: no political leader like Ramos Allup, Borges, Barboza would dare to pick up a telephone to demand anything from any magistrate, after having left them exposed to being massacred by the lions of this Roman circus of the red-red revolution.

Politicians mistakenly believed that the magistrates would be dispersed in exile and that the issue of those judges legitimately appointed to replace the "express" magistrates of the previous National Assembly would reach that point. And they were wrong. The persecuted Magistrates made a monumental effort to survive in exile, and with the help of many anonymous people have managed to articulate themselves outside the country to deliver legitimate justice. That leaves out the harmful and toxic influence of some parties that think they own the judges because they were nominated by them or owe them that position.

How interesting! This situation has given Venezuelans a Tribunal that only has to do what the Constitution and the law require of them: impartial and conscientious justice, which is the foundation and cornerstone of the rule of law. But that is only the product of the unprecedented effort of the Magistrates of the current legitimate TSJ in exile, so I believe that the Nation will owe them an imperishable recognition for that.

However, this collateral phenomenon described does not yet correct the structural situation. One day, which I hope will be very soon, Venezuela will return to normal and the Magistrates will have to return to Venezuela to occupy their natural positions. And once again, those magistrates who are now acting independently and those who will replace them in the future will be immersed in the harmful and toxic environment of the "as usual" politics of Venezuela, where the influence of politicians on the decisions of judges and magistrates is commonplace. That is why now is the time to make the decisions that will lead us to guarantee the INDEPENDENCE of the Judicial Power. That candy we are now savoring will end when everything begins to be what it used to be. And we cannot allow that from civil society.

Do you think there would have been a historic ruling like the one that emerged on June 13, 2018 from the Electoral Chamber of the legitimate Supreme Court of Justice, declaring the nullity of the CNE's Automated Voting and Counting System for the election of the positions of popular representation of the public authorities and other elections, if the Magistrates had been subject to the influence of the political parties within Venezuela? Never! The parties are still interested in inheriting this corrupt electoral system from the castro-chavismo-madurismo for their own ends.

Hence, many people wrinkled their faces when they heard about the decision of the legitimate Supreme Court in their electoral chamber, and are terrified of what else they might decide. They do not feel comfortable with a TSJ that acted "freely" and without their control, and are desperately trying to influence the Magistrates, threatening to ignore decisions that they might take, such as the one we are currently taking in the Constitutional Chamber requesting the appointment of a National Emergency Government (see complete application in Spanish at https://tinyurl.com/y7x87ldb), given the very serious crisis that exists in the country and that the official opposition is not enduring any more delays, such as those that the official opposition wants to impress upon it once again, trying to convince Venezuelans to attend the electoral circus, now illegal, next December that the CNE is calling for precisely because of the ruling of the Electoral Chamber of the legitimate Supreme Court of Justice.

Now it turns out that the politicians are trying to ignore the decisions that the magistrates are fully entitled to take because "they are not suited to their political aims, and that they believe these people? We, the citizens, are the ones who come to these instances because they are not doing the work we have entrusted them with. And now, by right, we are exercising our citizens' prerogative to demand an Emergency Government because Maduro and his regime are murdering Venezuelans.

Do you now understand why paid "experts" are appearing to disregard the validity of the legitimate TSJ in exile? That is why we Venezuelans must handle ourselves with our own criteria and know what is happening so as not to fall into the trap of those who want to continue to subjugate the population in the same way they have done for years, and who are now playing the game of "take off your hands to get me" with the regime but without changing the rules of the game. Had it not been for citizen pressure from an outraged population they would not have approved Maduro's impeachment in the National Assembly, that is the unfortunate reality.

The Judiciary is the one that determines the balance of power in the States. The fundamental contribution of the Founding Fathers of the American nation had to do precisely with these ideas. Thomas Jefferson (1743-1826) contributed in the American Declaration of Independence that the powers of governments derive from their citizens. This single idea is the one that prevails in countries where the rights of their citizens are respected, and it is the one that challenges us from civil society to promote the changes that are necessary to control the power that the rulers have. John Adams (1735-1826) defined that this should be done "within the law".  As a historical reference, Adams is the American leader who said that a Republic should be a government of laws and not a government of men.

James Madison (1751-1836), for his part, conceived the constitutional text as the one that limits the power of the authorities, because his permanent concern was the abuse of power. "Madison realizes very early on that the essence of government is power and that every man has within himself, as well as many positive qualities, a temptation, a predisposition to abuse power, we all know that. (see in Spanish De Padres Principios y Partidos, at http://ticsddhh.blogspot.com/2014/09/de-padres-principios-y-partidos.html).

Another of the American Founding Fathers, Alexander Hamilton (1755-1804), was the author of the idea of the Magistrates' life tenure which he defended with the following argument: "The judiciary is the weakest of the three state bodies, because it does not have the military power that the executive body has, nor the power to dispose of the public treasury and to enact laws, which the legislative power has. It only possesses the power to judge; but with such power it cannot defend itself from the attack of other organisms. One way to avoid such an attack is to ensure that judges who are of good character cannot be dismissed, and thus have the independence to judge the constitutional legality or otherwise of the acts of other State bodies" (see On Lifetime Judges, Luis Enrique Pérez at https://ar-ar.facebook.com/notes/luis-e-perez-e/logos-sobre-jueces-vitalicios/403297803139124/).

These lessons of the world's most perfected democracy are open to any citizen who wants real change in his country. So, if we do not understand that we must have a judiciary that puts limits on the power and is truly independent, we will never recover the Republic. Not now that there's a dictatorship or after we get the country back. And that is what the need is for this National Emergency Government, once it has been established, to have the obligation to convene the Original Constituent Assembly to re-institutionalize the Republic to face this challenge. I am sure the Magistrates in exile know that, but so do we as conscious citizens. May God be with you in your decisions.

Caracas, June 23, 2018

Twitter:@laguana