[Venezuela] A lawyer immune to legal reasoning

The remodeling of the legal profession into rhetoric

18–10–16

Certainly the constitutional lawyer Hermann Escarrá has been a controversial person for a long time in Venezuela; former accuser of ex President Hugo Chávez for human rights violations and brother to Chavismo’s unexpectedly departed and former Attorney General Carlos Escarrá, the more politician than jurist today has displayed a never-before-seen high respect for Hugo Chávez’s thinking and his Bolivarian vision (which he strongly opposed during 2007’s constitutional reform proposal) ever since the new opposition-controlled National Assembly was proclaimed in January. The lawyer’s inexplicably abrupt ability to change political positions rapidly earned him the reputation to become inspiration for cartoonists and YouTubers alike.

During an interview given this week to Unión Radio (a nationally broaden radio circuit) Escarrá referred to parliamentary immunity in Venezuela alleging that it protects representatives from criminal prosecution derived of statements made solely within the Chamber destined for deliberation and debate at the Federal Legislative Palace.

This legally-unfounded and conveniently restrictive interpretation is the kind to be expected from a pure politician. Let me explain why with relevant Venezuelan legal basis.

The Venezuelan Constitution devotes two of its provisions to parliamentary statute:

“Article 199. Representatives to the National Assembly are not liable for votes and opinions cast exercising their duties. They will only be held liable towards the electorate and the legislative body in accordance with this Constitution and Regulations.”
Article 200. Representatives to the National Assembly will be granted immunity exercising their duties.”

Article 199 refers to parliamentary privilege, in Venezuelan jurisprudence’s terms “irresponsabilidad parlamentaria” or “inviolabilidad parlamentaria”; It constitutes a protection to legislators from criminally prosecutable statements made exercising their duties. Meanwhile article 200 grants parliamentary immunity, a procedural benefit when facing criminal prosecution for actions performed exercising legislative duties.

It is to be understood that in the first case no legal prosecution can flourish although in the second it can, but only when the legislative body allows it.

Now, this immunity (latu sensu) composes an exception to the constitutional principle of equality against the law, reason why the Constituent decided to restrict its range of application in 1999 from that of its former act (Constitution of 1961) incorporating the expression “exercising their duties” in both cases.

As I have explained in other posts the principal rule to interpret law in Venezuela is found in the Civil Code of Venezuela (1982) establishing the “intent of the Legislator” as main guidance for interpretation added to the literal sense of his words. There is little doubt to be had on whether the expression “exercising their duties” involves a spatial restriction or a functional one. If a case is to be argued in favor of the spatial restriction thesis, a word of intent in that direction must be found either in:

  • Constituent discourses (drafts, explanatory memorandums, constitutional preamble)
  • Venezuelan jurisprudence (what other judges have argued to be the intent of the Constituent)
  • Doctrine (what jurists have argued to generally be the intent of constituents)

If a word cannot be found in either source, what could be the reason for such an authoritative statement arbitrarily restricting the already recently (1999) functionally-restricted parliamentary statute?

Well…

A purely political one probably related to press conferences held overseas by legislators invoking the appliance of the Inter-american Democratic Charter, chore which resulted in accusations of contempt and requests directed to the Supreme Tribunal of Justice demanding a constitutional interpretation in order to annul parliamentary immunity.

In Chavismo’s Venezuela, political whim seems to equal legal basis.

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