Fundamentally, a court differs from a legislature, so it
would be strange were a state’s supreme court to take it upon itself to act as
the state’s legislature as well. In late March, 2017, Venezuela’s Supreme Court
did exactly that, ignoring the qualitative difference between interpreting
contested law and legislating. The court wrote that lawmakers in the
legislature were “in a situation of contempt,” and that as long as that
situation lasted the justices would “ensure that parliamentary powers [are]
exercised directly by this chamber, or by the body that the chamber chooses.”[1]
Understandably, Julio Borges, the head of the legislative Assembly, exclaimed, “They
have kidnapped the Constitution, they have kidnapped our rights, they have
kidnapped our liberty.”[2]
Luisa Ortega, the Attorney General,” wrote that the court’s decision
represented “a rupture in the constitutional order.”[3]
This was true both in regard to the basic, or fundamental distinction between
judicial review and legislating and democracy itself.
The president and Chief Justice of Venezuela. An presidential over-reach? (Source: Reuters)
It was no mere coincidence that Borges’s party was not that
of the state’s president. Importantly, both the legislators and the president
had been democratically elected (assuming fair elections). To make this point,
Borges added, “The people chose us through a popular vote.”[4]
So for the justices to declare that legislative powers could be exercised
directly by the court represents an affront to representative democracy.
Tellingly, in the wake of popular protests, the Court
reversed parts of its decision only days later. In an address, the court’s
chief judge insisted that the “decisions of the court have not divested the
Parliament of its powers.”[5]
The Court had suppressed parts of the prior decision to nullify the legislature
and allow the court to write laws itself. The chief justice said the Court is “only an
arbiter” and thus should not be in conflict with other branches of government.[6]
I would add that a court should not take on the functioning of another branch,
for besides the risk to democracy itself, jurisprudence is qualitatively
different than law-making and execution of the law. Interpretation of a law
presumes that the latter has been promulgated and enacted for there to be a
conflict over it. Additionally, to both enact and interpret the same law would
occasion a conflict of interest wherein the judicial interpretation would favor
the legislative intent. In fact, the interpretation could simply be a
continuation of the intent! So in the
end, the separation of powers not only protects democracy, but also prevents a
conflict of interest in governance.
[1]
Nicholas Casey and Patricia Torres, “Venezuela
Muzzles Legislature, Moving Closer to One-Man Rule,” The New York Times, March 30, 2017.
[2]
Ibid.
[3]
Ibid.
[4]
Ibid.
[5] Nicholas
Casey and Patricia Torres, “Venezuelan
Court Revises Ruling That Nullified Legislature,” The New York Times, April 1, 2017.
[6]
Ibid.
