On Stage:
The Electoral Chamber and Its Unprecedented Judicial Saga

by Madame Robespierre
(pseud.)

 

"Justice, justice alone, is the foundation of the constitution. Any violation of justice, any corruption of justice, is nothing more than a usurpation, a crime that threatens the freedom of the people." Maximilien Robespierre

01 September 2024

Setting the Stage: The Curtain Rises

 

Welcome, dear curious spectators, to a story where reality seems to surpass fiction, a drama unfolding on the stage of Venezuelan politics. We find ourselves on July 28th, 2024, in Venezuela, on a presidential election day shrouded in a whirlwind of fraud accusations and an alleged cyberattack from North Macedonia aimed at the Venezuelan National Electoral Council (Consejo Nacional Electoral - CNE). A day that would mark the beginning of one of the most unbelievable judicial sagas in modern history.

The first scene opens with a shocking announcement: Nicolás Maduro is declared the winner during the first CNE bulletin broadcast, despite 20% of the votes still needing to be counted, and is proclaimed as the “elected president” a few hours later, without any electoral data being published to support this alleged victory. But, as if the plot could not get more intriguing, Maduro himself, this pseudo-proclaimed and theoretical victor, decided on July 31st, with great showmanship, to file an electoral contentious recourse before the Electoral Chamber of the Venezuelan Supreme Court of Justice (Tribunal Supremo de Justicia - TSJ). The reason? To presumably defend the Venezuelan Constitution, the Venezuelan Organic Law of Electoral Processes (LOPRE), and the Venezuelan Organic Law of the Supreme Court of Justice (LOTSJ), alleging that his unsupported electoral victory had been the target of an unprecedented attack and that a coup disguised as an election was brewing in Venezuela.

Oh, what speed was shown by the Electoral Chamber! In less than 24 hours, decision No. 25 comes to light, admitting Maduro's mysterious recourse to which no one had access, and summoning all presidential candidates to appear before its headquarters on August 2nd. Nine of them showed up, but Edmundo González Urrutia, who was considered victorious by the masses, refused to attend, arguing that his absence was an act of resistance to protect the will of the people.

The curtain on the second scene falls on the same day as the hearing is taking place when the Electoral Chamber, with decision No. 26 in hand, orders the CNE to deliver, within three working days, all records related to the elections. And to keep this spectacle alive, the Chamber committed to working 24 hours a day, every day, until the doubts related to the electoral process were all resolved.

The plot advances to August 5th, when the CNE, obediently, delivers the required documentation to the Electoral Chamber, as was informed by magistrate Caryslia Beatriz Rodríguez in an act broadcast on national television, an appearance worthy of a grand finale act. But, of course, the show must go on, and decision No. 27 orders the initiation of a thorough examination of the submitted material, to be completed within 15 days, extendable. Such efficiency is only possible when the rooster is the one who crows!

Not content with what has been presented, on August 6th, the Electoral Chamber, through decision No. 28, demands the delivery of all electoral documents held by political parties and candidates. And, as in any good play, the climax comes on August 22nd, when the final ruling of the TSJ’s Electoral Chamber sees the light, closing, for now, this fascinating act of the great Venezuelan judicial saga.

With the final scene completed, it is time to begin this performance.

 

Act One: The Incompetence of the Electoral Chamber

And so, we delve into the fascinating world of Venezuelan jurisprudence! In this first scene, the curtain rises to reveal the brilliant article 27, paragraph one, of the LOTSJ. This article, in its infinite wisdom, enlightens us on how electoral contentious claims are filed. It turns out that, according to this glorious legal text, such claims must be directed exclusively against the actions, conduct, and omissions of the Electoral Power’s organs.

But before we proceed, we must get to know our dearest esteemed Electoral Chamber, so in order to illustrate its previous activities, let us swiftly review these delightful examples of how electoral contentious appeals have been used for political purposes in Venezuela.

In this case, we find ourselves in December 2015. The stage is set for the Venezuelan parliamentary elections, where the Mesa de la Unidad Democrática (MUD) – the opposition coalition at the time – seems to have victory in the bag. But, oh surprise! Partido Socialista Unido de Venezuela (PSUV) – Maduro’s main political party – files a claim before the TSJ’s Electoral Chamber, alleging irregularities, such as supposed vote-buying, that they argued led to the election of specific congressmen of Amazonas State. With drama worthy of a thriller, the TSJ issues a precautionary measure that suspends the proclamation of the elected congressmen in that state, leaving the MUD without its qualified majority. A pure act of judicial irony, which constitutionalist Brewer Carías, one of the main critics of our plot, describes as a “judicial disregard of the people’s will” (for more details, you can read Brewer Carías).

In the second case, we move to November 2021, with a new twist to our plot: During the regional and municipal elections. Freddy Superlano, from the MUD, contested the results of the governorship in Barinas, alleging irregularities. Although the CNE had initially proclaimed him the winner of the elections, the TSJ’s Electoral Chamber intervened with a ruling that ordered a repeat of the elections. The reason? An administrative disqualification of Superlano, which many saw as an usurpation of the Electoral Chamber’s functions over the CNE, who is the true puppeteer of electoral power in Venezuela (for more details, see the chronicles of El País and OEV).

So it is, friends! The scene is set, and the show of the electoral contentious claim continues with unexpected twists and such brilliant interpretations of judicial theater.

In the grand theater of Venezuelan justice, the TSJ’s Electoral Chamber takes center stage once again after the "elected" president Nicolás Maduro filed his recourse on July 31st, 2024, to review the elections. Thus, the debate over the competence and scope of this honorable chamber returns once again to steal the spotlight of legal debate in Venezuela.

Let us remember that the electoral contentious recourse is a legal device intended to challenge the actions, decisions, and omissions of the CNE. An instrument to adjust the course of the electoral ship when the helm strays, as stipulated in article 213 of the LOPRE. Its mission: to ensure that electoral processes navigate justly, avoiding any storm that might cloud its splendid democratic journey.

But here lies the unexpected twist: instead of using this judicial instance to challenge the CNE’s actions, Maduro, who had already been declared the winner of this contest, decides to turn to this same instance to verify the results that granted him his false victory, without his petition challenging any specific action of the CNE or alleging any harm caused to himself or any other party.

In short, what Maduro sought through his actions before the Electoral Chamber was for it to bestow an aura of legitimacy on results that, in essence, remain in the realm of his imagination. It is fascinating how Maduro seems to think that the Electoral Chamber could confer legitimacy on such an evident fraud, revealing that he has a deeply disheartening opinion about the insight of the Venezuelan people and the astuteness of the international community.

Continuing with this intricate plot of “justice,” on August 15th, 2024, nearly two weeks after Nicolás Maduro’s bold incursion into the judicial stage, journalist Vladimir Villegas conducted an important interview with Professor Tulio Álvarez, head of the Constitutional Rights Department at the Universidad Central de Venezuela and Universidad Católica Andrés Bello. Álvarez, with the grace of an expert playwright, unraveled the legal complexities, making it clear that the TSJ’s Electoral Chamber has no role whatsoever in the acts of totalization, scrutiny, and proclamation acts that are exclusive competencies of the CNE.

This argument, which has been ratified by binding jurisprudence of the Constitutional Chamber, as emphasized by Álvarez himself, is based on the sacred principle of the separation of powers, which demands keeping the CNE at the center of the electoral stage, far from the intrusion of the Electoral Chamber.

So, indeed, we have witnessed a dazzling invasion of competencies by the Electoral Chamber. The LOTSJ and LOPRE establish with detailed precision the domains of the CNE and the Electoral Chamber. Nowhere in these regulations is there authorization for the Electoral Chamber to interfere in the scrutiny, totalization, or proclamation process, an exclusive territory of the CNE. The Electoral Chamber’s interference in these phases, rather than an intervention, is a usurpation of functions that tears apart the separation of powers and the autonomy of the CNE.

And so, in a twist worthy of the best theaters of the absurd, the Electoral Chamber embarks on an unscripted performance by accepting the "elected" president’s request, who acts under the representation of the Office of the Attorney General — even though he introduced the recourse as an individual person and not as president — and fully engaging in the usurpation of the CNE’s functions regarding the electoral results.

Despite the fact that the CNE released a partial bulletin on August 2nd, it still has not completed its work as required by LOPRE, which grants the CNE up to 30 days to complete its task. Therefore, accepting a claim to certify electoral results prematurely is nothing more than a bold invasion of competencies by the Electoral Chamber, an act that defies both logic and legal reasoning.

In his masterful intervention, Professor Tulio Álvarez also highlighted three crucial points:

• The voting act, which is preparatory in nature, culminates in the election, a precise sequence that includes scrutiny, totalization, and proclamation. These acts, according to the Professor, are so perfect and successive that they do not admit substitutions. If they are not followed in order, the final proclamation is void. In summary, the Electoral Chamber, no matter how grandly it dresses its capabilities, cannot replace the CNE in its electoral jurisdiction.
• The political purpose of the electoral recourse is to remove the publication of results by the CNE from the discussion. A discussion that was resonating in various international spheres, causing concerns for Maduro and his allies. And so, the appeal sought to transfer this battle to the courts, transforming the debate into a magnificent parade of weak legal arguments that seek to distract attention from the real issues: the annulment of the proclamation and the absence of verifiable published results.
• The final legal objective of the recourse is to certify the electoral results provided by the CNE without a thorough, transparent, and believable verification process. But the question that remains unanswered is: what electoral results or materials does the Electoral Chamber intend to certify when it is the exclusive responsibility of the CNE, the supreme organ of Electoral Power in Venezuela, to do so? It is nothing more than a monumental waste of public resources and time for the Electoral Chamber to grant itself the authority to hear a non-existent recourse, which will inevitably end in a decision that can be annulled due to its flagrant illegality and unconstitutionality.

Professor Álvarez astutely emphasizes that, according to the LOPRE, custody of electoral material is in the hands of the National Armed Forces and is only returned to the CNE in cases where a formal challenge is made against the result proclamation of a candidate, something that has not occurred in this case. When the Electoral Chamber proceeded to request from the CNE electoral material that, by law, was not supposed to be under its custody but under the surveillance of the Armed Forces, and when the CNE proceeded to deliver said material, a flagrant usurpation of functions by the Electoral Chamber and the CNE from the Armed Forces of the Republic was revealed.

This, of course, assumes that the material delivered actually corresponds to that of the elections of July 28th. If this is not the case, we would be faced with even more disturbing legal implications, which for now we will leave to the imagination.

Furthermore, the author cannot help but point out that the decision of the Electoral Chamber ordering the delivery of the electoral material by the wrong body reveals a dazzling degree of ignorance of electoral legislation on the part of the magistrates, who, in their sublime incompetence, have stripped the electoral jurisdiction of its prestige.

In this enigmatic case, the petition for appeal, like a well-kept secret, has not been diligently published before the Venezuelan people, who, as interested parties, have been left in the dark. Only a few lucky individuals, including Professor Álvarez, have had access to this mysteriously precious document.

Not even the candidates summoned to appear before the Chamber were able to look at the text of said recourse before being forced to sign a legal document on national television, without the possibility of review by their lawyers. This detail, widely observed during the broadcast, was later confirmed and denounced by the candidates Enrique Márquez and Antonio Ecarri, adding additional touches of drama to this judicial tragicomedy.

After a thorough examination of the text, Professor Álvarez revealed that this recourse was not at any time a request to challenge the proclamation act (the only legal recourse possible at this time). It was, in reality, a request focused on the verification of the electoral material and the verification of the alleged hacking from North Macedonia, a scandal that has been denied by various sources, including the government of North Macedonia itself. This type of request has no legal backing in Venezuelan law or jurisprudence.

In addition to the above, the judicial drama intensified with a stellar performance on August 23rd, 2024, when Professor and former Magistrate of the TSJ Juan Carlos Apitz, current Dean of the Faculty of Legal and Political Sciences of the Central University of Venezuela, in an interview with journalist César Miguel Rondón, proceeded to masterfully explain that the sentence in question is absolutely null and void, according to art. 138 of the 1999 Constitution, which states that any usurped authority is ineffective, and its acts are null. He emphasized that neither the Constitution nor the LOTSJ grant the Electoral Chamber the extraordinary power to verify the results of the CNE.

In light of the events, I can affirm that the Electoral Chamber does not have jurisdiction to address the electoral contentious appeal. Why? Because, quite simply, there is no act to study. First, there is no valid act of proclamation given that the irreplaceable processes of scrutiny and totalization were never completed. Second, the electoral material is under the custody of the National Armed Forces and can only be transferred in the event of a formal challenge to the proclamation, something that has not occurred here. In short, any attempt by the Electoral Chamber to assume exceptional powers, not provided for by the Constitution or the law, is nothing more than a usurpation of functions of other independent Public Powers.

As a final act in this legal drama, I feel obliged to address the precarious argument of the “Jurisprudential Dialogue” presented by the Electoral Chamber in its ruling. A desperate, almost comical feat that searched for some glimmer of jurisprudence across the entire juridical sphere that could provide an iota of legality to its “competence.”

To this end, the Electoral Chamber of the TSJ, seeking to justify the unjustifiable, has decided to invoke the legendary “jurisprudential dialogue” to attempt to demonstrate that it can have unusual competence in cases such as the present one. According to the Chamber’s decision, cases in Brazil, Mexico, and the United States have acted as its illustrious precedents. However, what these references offer us is a parade of distractions instead of a series of applicable legal arguments.

To understand why this resource is as weak as a cardboard set, it is necessary to know what “jurisprudential dialogue” really implies. This technique, as Ayala Corao (2012) illustrates, is a fine dance between courts of different jurisdictions. It takes place when a court creates a jurisprudential precedent by citing and examining judgments from other courts to enrich its own decision. This may be applicable as long as the analysis of these other judgments is pertinent and useful (Ayala Corao, 2012: 21-23).

On the other hand, F. Reviriego (2012) explains that jurisprudential dialogue can occur in supranational, indirect, or direct contexts and can assist in the interpretation of rights (Reviriego, 2012: 382-383).

Now, the Electoral Chamber has tried to disguise its incompetence by interpreting jurisprudential examples from Brazil, Mexico, and the United States. But here lies the issue: the Chamber has failed to offer a true jurisprudential dialogue. Why? First, the facts are not comparable: in our case, there was no act emitted by the CNE to challenge. Second, the jurisdictions are dissimilar: these countries have electoral courts with comprehensive powers, while in Venezuela, the CNE is the supreme organ of the Electoral Public Power. And, finally, in the examples cited, officially published electoral tallies and results that could be challenged actually existed, something that is not even in sight here, given that the CNE has not yet officially published the tallies and disaggregated results in question, although it has been over a month since the election.

In short, the Electoral Chamber's attempt to legitimize its intervention through this technique is as effective as a curtain that does not cover the scene.

And so, my dear and avid readers, as the drama unfolds and secrets emerge from the shadows, we can only wonder what twists and turns tomorrow holds. Until then, keep your wits sharp and your ears open, for this saga still holds surprises that I will soon reveal. We will meet again very soon for the second act of this work, starring our illustrious Venezuelan electoral judicial authority.

Yours truly,

Madame Robespierre