In fact the original constitutional violation took place late December 1999 when a country traumatized by the Vargas disaster did not say anything when a few people, clearly having other interests than the thousands of victims of Vargas, threw away the old judicial system to put in place the first wave of partial judges. This was the most important maneuver of chavismo, to hijack the judicial system. A true coup.
Its effect was not immediately felt. In that first batch there where judges who still had an idea of what justice and separation of powers meant, even though they were rather lax on that. We can say today, after the ruling this afternoon from the Constitutional Hall of the TSJ, that the TSJ has now accepted publicly its role as the servile servant of Chavez. In fact, we could have said that a very few days ago when the TSJ also said that some of the enabling laws decrees were "constitutional" even though they are not (such as the changing of the names of constitutional institutions which cannot be done without a constitutional change). This week Chavez demonstrated that after all he did not need that "reforma" of 2007. Except of course for that ad perpetuum reelection business that he will take care of next year probably.
Now, this been written I do not want to pat my back but all has been written and sort of predicted when not predicted outright in many of the posts that wear the label "2008 elections". I will thus not bother the reader with unnecessary repetitions. The question now is what are we going to do as a country. It is absolutely crystal clear that Chavez will impose his will on the country, that he has chosen confrontation now, if not an outright war path. That in the end it only proves his inherent weakness is not the point: he might show how scared he really is when using such rotten ways to secure his power by unjustly banning folks for running for election, but that does not excuse those in front of him to justify Chavez weakness with their own one.
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As a footnote of this post I wanted to bring your attention at something published in the press release of the TSJ on this matter today. I post it in Spanish so that I cannot be accused of manipulative translation. The translated aprts are color matched.
Con fundamento en las consideraciones expuestas en el fallo, la Sala concluye que la restricción de los derechos humanos pude [sic!] hacerse conforme a las leyes que se dicten por razones de interés general, por la seguridad de los demás integrantes de la sociedad y por las justas exigencias del bien común, de conformidad con lo dispuesto en los artículos 30 y 32.2 de la Convención Americana sobre Derechos Humanos.In this note the TSJ states that it is OK to diminish human rights in three cases, and thus according to an Interamerican Human Rights Convention. One is reasons of general interest [Guantanamo?], the second is for the safety of the citizens [criminals, of course] and the third one for the just demands of the common good. This third one really bothers me because this is just a vague wording which opens the door to all sorts of future arbitrariness as new laws can suspend or remove human rights without proper trials, which is the case at hand.
I do not know what the convention says but I am sure that it is not as easy as what the TSJ would like us to believe it is in this ill written press release. Then again the US is getting away with Guantanamo, is it not? But whatever the convention says I am pretty sure that it is only applicable if the body that decides such things is a truly independent body respected by most of society, and by most I do not mean 51%, I mean a good 80%. How else can you speak of common good?
In Venezuela today there are no conditions of a truly impartial umpire and thus the third condition cannot possibly apply, which would be the only one that the TSJ could use in this case, As such the "inhabiltados" defense lawyer have a great opportunity, but also a great handicap because it means that they need to prove that the TSJ is not legitimate, that it is partial. Lawyers in other countries and international boards are very reluctant to get into anything that smell of politics, no matter how clear cut the case might be. Yet trying this way and being successful could bring HUGE dividends...