Venezuela’s Supreme Court and a history lesson

Former Venezuelan president Hugo Chavez and incumbent president Nicolás Maduro Photo: Getty Images

Venezuela has been in a downward spiral since the death of socialist icon Hugo Chavez in 2013. During his presidency, Chavez was a whirlwind of activity, using the price of oil to fund socialist initiatives in his oil-rich but poor nation, nationalising whole industries in the process. His death came at just the wrong time, as in 2014 the price of oil plummeted, and the country plunged into crisis, with food and medicine shortages. Chavez may have been able to troubleshoot the country out of the crisis, but his chosen successor, Nicolás Maduro, is a much more stoic, stable character than his charismatic ‘father’ — and therefore not the kind of person to fix an economic and political crisis such as this. Maduro has instead spent his presidency attempting to retain his hold on power while the nation’s economic and social situation continues to fall, strengthening his own position as president wherever he can while the people he is meant to be serving struggle to have food on the table and stay healthy.

The latest manoeuvre in this depressing story comes from the Supreme Court, which decided to revoke the legislative power of Congress (which now has an opposition majority) and take it for themselves, making themselves a legislative and judicial body. Because the Court is full of Maduro appointees that belong to the ruling Socialist Party, this would mean that Maduro, the head of the executive, has control of all three arms of government. Maduro reversed the Court’s decision a day later, but the scale of the backlash suggests that people find something distinctly wrong with the mingling of the judicial branch of government mingling with the legislative branch of government.

On first glance, this backlash seems fair enough. Montesquieu’s separation of powers is embedded in our perception of political systems, along with being the guiding principle of many constitutions, most notably of France and the United States. But parliaments, government and courts of law have existed for much longer than Montesquieu’s concept of them has and, much like Adam Smith’s market-based society, the reality of separation of powers only really came into being after the theory was written. Separation of powers is today treated as a natural state of affairs, but it — particularly the desire to have each arm totally removed from the other — is a relatively recent phenomenon, and should not be treated as necessary part of a free and just society.

Separation of powers is now viewed as an end in and of itself to such as extent that Britain, which Montesquieu used as an example of separation of powers, is today described as being unusual for having a ‘fusion of powers’. This is generally used in a negative sense, from those who posit that a full separation of powers is a necessity for a free and just society. After all, they argue, does not the fusion of powers mean that one of the arms of government becomes too powerful, absorbing one or both of the other arms for its own use?

There are a couple of problems with this argument. The first is that it assumes that a country with a full separation of powers prescribed in its constitution will forever bind its three arms to stick to its functions and never have a blurring of the lines. To see whether this is true, let’s look at whether this is true in the United States. The US Constitution states that the US Congress is to the sole body for federal legislature, that the US President is vested with executive power, and that the US Supreme Court shall be the head of the judiciary. In light of that, answer this question:

Which of the Congress, President and Supreme Court is the most powerful lawmaking body in the United States?

Speaker of the US House of Representatives, Paul Ryan, thinks it’s Congress Photo: Office of Paul Ryan

I’m sorry, did you say ‘Congress’? Put your hand down, Speaker Ryan, that is incorrect. The US President can veto congressional legislation, and is able to, in essence, make his own legislation through executive orders, which can be so wide ranging as to be the equivalent of legislation. So, in light of that information, I will ask the question again.

Which of the Congress, President and Supreme Court is the most powerful lawmaking body in the United States?

US President Donald Trump believes it is himself Photo: NBC News

I’m sorry, did you say ‘the President’? Hand down Mr Trump, that is incorrect. The Supreme Court, along with its lower courts, are able to overturn executive orders and legislation thanks to their position as the interpreters of the US Constitution and Bill of Rights, which they can interpret however they see fit. Because of this, the Court today is highly politicised. After all, if the Constitution is the most powerful political force in the country, and interpreting it in different ways can lead to completely different political results, then why would you not try to fill the Court with people who hold to your political views? One factor in the victory of Donald Trump was that traditional Republican voters were so concerned with replacing the late Antonin Scalia with another one of ‘theirs’ that they felt that they had to vote for the Republican candidate — after all, a Supreme Court justice can wield power for much, much longer than a US President — to ensure that a worthy replacement would be picked. So, I will ask one last time.

Which of the Congress, President and Supreme Court is the most powerful lawmaking body in the United States?

Chief Justice of the US Supreme Court, John Roberts, knows it’s really him and his fellow justices Photo: The Onion

Did you say ‘the Supreme Court’? Well done, Justice Roberts! That is the correct answer. The US system does not separate powers so well as it claims to, and its most powerful legislative body is its least democratic one. Unaware of the irony, much of the international consternation about the Venezuela Supreme Court taking legislative power for itself came from concerned citizens of the United States.

The reality is that a clean separation of the powers of the executive, legislative and judicial arms of government is impossible, and in trying to create this in their constitutions, countries actually end up making one of the arms more powerful than the others, which is the exact opposite of what they want. This is increasingly true in other countries as well, most notably Britain, but this is happening because they are abandoning their pre-existing systems which were not so concerned with the separation of powers. The British case serves as the second problem with the supposed necessity of the separation of powers.

Until 2005, the Lord High Chancellor of Great Britain had three roles: they were a member of the Privy Council and the Cabinet, representing the judicial system; they were the presiding officer (or ‘speaker’) of the House of Lords; and they were the head of the court system, for which the highest court of appeal was the House of Lords. This is the result of a thousand-year process which began with the English parliament also being the ‘High Court’ of the land, which you can read more about this in my upcoming book. In short, the separation of powers was simply not a necessity in establishing a free and just system of government.

Notice that each of these roles corresponds to a different arm of government, and therefore the position of Lord Chancellor would be anathema to those who believe in the absolute necessity of the separation of powers. As it so happened, the Labour government under Tony Blair believed in the necessity of the separation of powers, and in 2005 put a reform bill through the British Parliament to remove the judicial functions from the Lord Chancellor, and replace the House of Lords’ position with a newly created Supreme Court of the United Kingdom. Their justification for this was that the pre-existing system did not comply with the European Convention on Human Rights, and the new Supreme Court would be, in that it would not actually be the highest court of the land. That honour was actually shifted to the European Court of Human Rights, which has been a thorn in the side of British law for years. This happened under the same government that made the position of Prime Minister more ‘presidential’ in nature. You may draw your own conclusions about why they would choose to do that.

President Blair? Photo: The Daily Express

The ECHR is unrelated to the European Union, so the British government may or may not choose to leave it when they leave the European Union. If they do, the Supreme Court will be the highest court in the land, and its how effectively it is separated from the other two arms of government will be better scrutinised. But its mere existence is unnecessary, a result of the wrongheaded belief that Montesquieu’s theory was actually gospel. Britain, and other governments modelled on it, were able to create just and free societies without the dogma of separation of powers, so much so, in fact, that Montesquieu, writing in the 1750s, pointed to Britain as a model of separation of powers. Such is the effect of political dogma.

The decision of Venezuela’s Supreme Court was, to my knowledge, unconstitutional, because Venezuela’s constitutions is one of the many that set the separation of powers in stone. But the question that should be asked about this is not whether Venezuela is in danger of becoming a dictatorship because

What should be asked is whether the separation of powers caused this political crisis in the first place.