Looking for all the help he can get
Primero Justicia congressman Richard Mardo was stripped of his parliamentary immunity yesterday. In a 97-68 vote (that’s 59-41 in percentage terms, in case you’re wondering) the chavista majority in the National Assembly (read: Diosdado Cabello and his minions) pretty much took away his popular mandate, and in the process used Article 187 of the Constitution as toilet paper.
What does Article 187 say? Many things, but in number 20, it reads “The temporary separation of an assembly member can only be agreed upon with the favorable vote of a two-thirds majority of the assembly members present.”
Two thirds … is not 59 percent.
It seems clear to anyone that stripping someone of their parliamentary immunity, a necessary condition for doing their job as legislators, is an extreme measure that can and should only be used when the crime being alleged is serious, and the evidence is solid. In the case of Mardo – who is being accused of a variety of financial crimes using allegedly false evidence, never mind the fact that legislators do not administer public money – there is ample doubt about the seriousness of the allegations.
These are all formalities, though.
In taking Mardo out of the picture, what chavistas are doing is trying to intimidate the rest of the National Assembly members into submission. The goal here is to – somehow – reach a two thirds majority by picking and choosing a couple of deputies they want to knock off and leaving in their place substitute deputies who are vulnerable to a good red bribe. The other goal is that Mardo is a front-runner for the mayor’s position in Maracay, a symbolic city for chavismo, home to important military garrisons. With his immunity stripped, is all but certain he will be barred from running.
Regardless, this looms as an expensive mistake for chavismo. It has united the opposition when cracks were starting to appear. It has also stirred its leader – Henrique Capriles has called for street protests this Saturday, the first time he has done so since the April 14th election.
There was no need for chavismo to go after Mardo. The opposition will not let itself be intimidated, and by doing it in a manner so blatantly at odds with the Constitution, they are acting like the dicatorial bullies the opposition says they are – un poco’e enchufaos.
They already had all the power to do anything they wanted, so they didn’t need to sacrifice Mardo. Instead of instilling fear in opposition leaders, by running over Mardo they may have woken them up from their stupor.
Caracas Chronicles 
Maybe it’s hilar-demasiado-fino but my understanding is that Mardo is still technically a member of the AN with voting rights and everything. What they did may be an arroz-con-mango jurídico but I’m not 100% sure they broke article 187.
The real pastel comes later, when the guy is convicted and sent to jail…while still technically being an A.N. member!
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Yet another example of how horribly written was the 1999 constitution.
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The basic problem is that the Constitution, as poorly written as it is, does not specify the amount of votes for impeachment. Just that the TSJ has to ask the AN to let an MP go to trial. So article 187 is the only one that talks about a MP temporary removal from office, but not tied to the actual impeachment. Again, the proper move, I thiiiiiink, should be going to the TSJ and ask for a “recurso de interpretación”, “amparo” or whatever it is needed in this case. Not that it is actually going to work for something… but, at this point, there is nothing to lose anyway.
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Understand that a standard rule of interpretation in Venezuelan Law ( following plain logic) is that where a particular legal consequence has to meet certain requirements , then where the consequences are more severe then the requirement cannot be made less stringent , In other words if to temporarily suspend a congressmans inmmunity you need a 2/3 mayority , then to definitely take away his inmunity you cannot require a simple mayority because a temporal suspension is of less consequence that a definitive deprivation of inmmunity !!
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Is not about the fact that the Constitution is poorly written, many Constitutions in the world are, and this is remedied by reasonable interpretation by the executive or congress and in the case of a dispute by a final interpretation by a independent and competent Court of Law.
Here in Venezuela, every gap, every ambiguous wording of an article is taken by the government to advance an absurd interpretation to fulfill its objectives with a total disregard from the rule of law, and the lack of an independent judicial power to control this (ours is an enabler) is what makes this whole episodes really pointless. Somos una parodia de un Estado de derecho,
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Seriously?
‘[…]remedied by reasonable interpretation by the executive or congress[…]’
I didn’t know these two branches were in charge of ‘intrepreting’ any law.
Well, you know, in Chavismo todo es posible…
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In the vast legal structure of modern states, regulatory agencies that depend on the executive are constantly implementing and interpreting laws, in fact there are several instances when agencies dependent on the executives act as quasi judges in administrative procedures very similar to court trials.
Congress implements and interprets laws and the Constitution when passing laws or, case in stripping a MP from his immunity.
I don´t understand if you mean that the only final and binding interpretation of the law in a state is by a Court, but all power branches of a modern state are constantly implementing, interpreting and reconciling a vast number of complex laws and regulations that sometimes contradict themselves, in many instances without Court intervention.
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Your usage of the term ‘interpreting’ is by no means the legal version of it; but instead a more general meaning.
But since there is no much about this that could acrue to the Mardo case, I think is not necessary to make a fuss of it. Your second intervention suffices.
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I think you are confused. What I think you consider the “legal version” of interpretation is a judge’s interpretation of a law which is only a subtype of legal interpretation. As a matter of fact, Executive Agencies such as Ministries of Labor, issue rulings interpreting the meaning of obscure provisions, many scholarly articles are interpretations of law. I’m not making a fuss about it, just kindly providing some perspective to the vast knowledge you usually exhibit when opining about every single area of expertise in the blog.
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Dear cacr210,
My scarce wisdom about legal subjects in general probably makes me the issue of a well deserved ridiculization; if that’d be the case, I kindly ask you to spare me the pain.
I understand ‘interpretation’ as an attribution of the judiciary. Our clash, however, can be on whether you are talking about Anglo-Saxon doctrine, whereas I’m talking about a Latin, Roman derived system.
If you look at carefully, the fact that law interpretation is so rigid in Latin systems is demonstrated by the fact that jurisprudence is not even obliging unless the Supreme Court gets involved. A citizen can easily go and introduce an interpretation petition it he feels an administrative body has extralimit itself on interpretation of a rule or statute.
That migh not be the case in a common law system.
But in general I think you are right when express a system of legal interpretation must not be limited to the judiciary faculty of interpreting. Although I think that doctrine can have a role in interpretation, it’s up to a judge to use it.
There’s no need for a rebuttal about my ‘vast knowledge’ on your last paragraph. In fact I seldom make comments on the blog lately. Probably my first comment was a bit extralimited on the way I expressed myself. I apologise for that.
Many thanks for your inputs.
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The TSJ decision that authorized the antejuicio de mérito, established that the stripping from parliamentary immunity of Mardo by the Assembly would barred him from holding office (A blatant violation of Human Rights Treaty that states you can only be barred from holding public office by a final decision from a Court of Law)
http://www.tsj.gov.ve/decisiones/tplen/julio/38-16713-2013-2013-000060.html
“Del mismo modo, siendo que con el allanamiento de la inmunidad parlamentaria se tendrían por cumplidos los trámites necesarios para el enjuiciamiento, operaría de pleno derecho la respectiva suspensión e inhabilitación para ejercer cualquier cargo público durante el proceso penal, de conformidad con lo dispuesto en el artículo 380 del Código Orgánico Procesal Penal.”
I guess the interpretation that Diosdado and his band of thugs will follow, based on the TSJ decision, is that he is no longer a MP and is barred from holding public office (running for office in Maracay)
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It’s a good thing CACR has this pesky habit of, y’know, bringing actual information to these debates…
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It’s funny – we’re arguing judicial technicalities when we’re being held up at gunpoint by armed thugs. It’s OBVIOUS that a simple majority should not be enough to strip someone of their immunity, even if the Constitution is not crystal clear about this. Having said that, Article 187 clearly sets a precedent about the requirements to kick someone out of the AN.
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Perhaps the Villegas interview of Diosdado was a way to humanize his guest and allow him to spin his top to justify what he did to Mardo, never mind the Constitution.
Otherwise, I really hate the cheesy attempts by Mardo to portray himself as crucified. (Much in the same vein Chávez used a crucifix, during electrified junctions in public opinion.) Mardo’s play may or may not help reverse the impetuousness of Godgiven’s decision. But still, nobility of character is not what I would associate with Mardo, in this instance.
Another take: http://daniel-venezuela.blogspot.ca/2013/07/mardicidio.html
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“Henrique Capriles has called for street protests this Saturday, the first time he has done so since the April 14th election.”
This makes me nervous. If you’re going to demonstrate power you’d better be prepared to go all out. Those demonstrations on Saturday had better be massive and vocal, or there will be a considerable loss of credibility. This is a very dangerous move on Capriles’ part.
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I think this would be a great chance for the opposition to prove, outside the country, that venezuelan institutions are not democratic, but instead a series of State apparatuses that only acts according to the will of a political party instead of the rule of law.
How? Introducing in the TSJ a recourse of constitutional protection (recurso de amparo constitucional). We all know that the TSJ in the Constitutional Chamber will elaborate a half-assed argument that the 2/3 majority doesn’t apply to this case. But in doing so, the opposition will have a much stronger precedent, that our institutions are blatantly acting against democratic principles and the Law itself, something that can be seized by Capriles in the argument that, no matter how right he is, the institutions in Venezuela only answer to a power structure and not to the true nature of a democratic society.
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I think this argument has been sufficiently proved in the past, with no major consequences. Besides, where are you going to show these blatant and irresponsible violations of the constitutional text? The OAE?
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Here we go again, protesting for a cause that ordinary citizens will have a hard time understanding. From the big picture Chavistas come out tough on corruption and the opposition is defending someone accused of it.
I know that the evidence was chimba, and that they are violating a reasonable interpretation of the law…. Details, details. At a macro picture we are being played like a fiddle.
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Very true. Most ordinary citizens are utterly ignorant and uninformed and this won’t move them at all.
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How about the fact that an innocent man, and father, is being condemned for a crime he did not commit? Is that moving enough?
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The ‘frog on a hot plate’ analogy is the dangerous predicament facing all Venezuelans — whether they realize it or not, whether they are currently plugged in to those in the ascendancy or not.
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The point is why make a fuss about this man unfair treatment and not make a fuss about normal citizens that, for example, have to pay bribes to the police or authorities?
Defending the weakest and not the strongest, in my humble opinion, will give people more compelling reasons to join the opposition.
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For some yes. For many others, probably not.
a.) Some will just believe the government’s lies as they have, and don’t have access to other information viewpoints
b.) Some Chavistas could care less about rule of law and democracy, they enjoy seeing the opposition persecuted
c.) This is not the first time something like this has happened. Why protest now?
d.) Will people risk their safety or their livelihoods taking part in a protest that won’t change anything?
e.) Others will view it as some fight over a ‘techinicality”
If people don’t regularly take to the streets to protest the crime, corruption, inflation, incompetence, and blatant dishonesty of the government already why should this move them?
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I agree with JotaE I think the autor of this post is being way too optimistic by saying that the opposition will be united about this subject, I find more likely that the chavista get away with this winning the maracay mayoral race in december and the vast majority of municipalities, I hope to be wrong but that’s my feeling at this time, let’s see how events unfold
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Yes, you are right to be cautious. If course it would be a “coup” (excuse the pun!) for chavismo to win Municipio Girardot in December but the purpose of going after Mardo is to open up the whole Pandor’s box on OJ corruption.
Now that mardo has lost his immunity it opens the door for the source of the Millions of bolívares he received to be investigated.
Where did they come from? Many of the checks were deposited in Muncipio Sucre (Ocariz’s patch). There0s talk that some of this money has come from ilegal fx dealing or even from narcos in Colombia.
This will all unfold and before the December 8th elections.
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Do you think, o sage one (well, except for your false call on Chávez’s health), that there’s enough time, before December 8th, to look at corruption and nepotism issues within chavismo? Or do you folks need longer than the 14 + years you all have been in office?
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Maybe he received millions from the sale of human organs.
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Um, you can investigate a Diputado all you want without removing his/her parliamentary immunity. You just can’t charge them of a crime. See, FIRST you compile the evidence, THEN you make the accusations. (It´s called due process of law)
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Arturo: “Now that mardo has lost his immunity it opens the door for the source of the Millions of bolívares he received to be investigated.”
So, using your logic, police should be able to remove anyone’s rights to open the door to investigate them in any way they need to prove them guilty of anything they thus find? Dang.
—
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Yeah, I was thinking the same thing. Most people don’t really care about some legislator getting stripped of his immunity. Maybe it’s cynicism and a feeling that “somehow he’s guilty” or maybe people get caught up in the day to day struggle of not getting killed. Whatever it may be this sort of stuff just doesn’t really get people worked up like it should. Penas ajenas and all that.
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http://www.animalport.com/Animal-Sounds/Frog.html
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There were no technical nicities when the whole of the AN was suspended on 12 A 2002. Earle Herrera explains it very well http://www.youtube.com/watch?v=IFccl4oAOz8
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well I guess you could say that chavez wasn’t very technical either when he tried to obtain power in 1992 so I think that chavists should call it even on the coups matter (not counting all the times chavism used the laws as toillet paper in the last 14 years)
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