A Legislature Court: A Conflict of Interest Averted in Venezuela

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.

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[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.

How to Regain Reputational Capital: The Case of Wells Fargo

How does a firm rebound from the toll taken in reputational capital from a track-record of unethical practices? Paying $175 million to settle accusations without admitting any wrongdoing, such as Wells Fargo did in 2012, does not suffice, but neither does merely admitting culpability without real change going forward. The case of Wells Fargo may provide an explanation for how reputation recovers.

The full essay is in Cases of Unethical Business, available in print and as an ebook at Amazon.com.  

Young Russians Protest Government Corruption

Russia witnessed the largest anti-government protests in more than five years on March 26, 2017. At the urging of Aleksei Navalny, “tens of thousands of Russians—many of them in their teens and 20s—poured into the streets in scores of cities . . . to protest endemic corruption among the governing elite.”[1] The police responded by beating protesters—a barbaric and psychologically pathological response to peaceful protest—and arresting more than a thousand. As the protests were not directed against Putin, but, rather, corruption, the Kremlin should have been a cheerleader rather than antagonist to the protests.

Aleksei A. Navalny at a court in Moscow on the day after the protests. He told reporters that he was “amazed” by the number of cities and by how many people had taken part in demonstrations. (Source: Denis Tyrin/Associated Press)  

Yet personal ties among the elite are by nature enduring. Prompting the protests, Navalny had released a video detailing “a web of dubious charitable organizations that funneled bribes from prominent oligarchs to Prime Minister Dmitri A. Medvedev, allowing him to maintain a series of luxurious estates, vineyards and yachts in Russia and abroad.”[2] The allure of such easy money at the highest level of a government can easily dwarf any desire to reduce systemic corruption inside the system. This can be viewed as private advantage trumping the public good.

Fortunately, young people are sufficiently idealistic to hope for a better, fairer world. “I am glad and happy that a new generation grew up in the country that will not accept such [pro-corruption] atttitudes from the government and wants to feel that they are citizens,” Mavalny told reporters in court after the protests. Middle-aged people can easily slip into the self-fulfilling prophesy that the world cannot be improved much unless the change is in the interest of the political and financial elites. How to hold the most powerful in check is an especially vexing problem for any people, even in a healthy democracy. It is no accident that the elite typically control the media, such as Channel One in Russia. That station ignored the protests—a glaring editorial decision given the station’s duty to report the news.

Had the insiders in the Kremlin been strategizing in an enlightened self-interest, they would have realized that being on the side of the young in opposing corruption would pay off even just in good public relations. Stronger still, rooting out corruption can enhance a government’s stature, and thus the chances of genuine re-electability. Sadly, the old grooves of power tend to lead to clamping down on popular protest regardless of the cause. Rather than aligning, the instinctive reaction is to grasp at the levels of power available to any government: the police power of the state. I submit that a corrupt police state is the downside of politics and even democracy.

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1. Neil MacFarquhar and Ivan Nechepurenko, “Aleksei Navalny, Russian Opposition Leader, Receives 15-Day Sentence,” The New York Times, March 27, 2017.

2. Ibid.

Making a Joke Out of Liberty: Unmasking a Political Travesty

“Land of the free” is a ubiquitous expression that Americans use to describe the United States. Presumably those states esteem liberty as a political value even though it is oxymoronic for a government to voluntarily limit its own power over the governed. Hence, ratification of the U.S. Constitution was predicated on a Bill of Rights quickly to follow. Declaring governmental power to be limited was not enough. That many States have had “mask laws,” many still on the books as of 2017, testifies as to how invasive government power can be precisely at the expense of personal liberty wherein no one is harmed.

In Virginia in late March, 2017, police arrested a man dressed as the Joker (of the Batman comic/movies). The man “was called in for walking around town in the creepy clown villain makeup while carrying a sword.” According to the Virginia criminal code, “It shall be unlawful for any person over 16 years of age, with the intent to conceal his identity, wear any mask, hood, or other device, whereby a substantial portion of the face is hidden or covered, so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth, without first having obtained from the owner or tenant thereof consent to do so in writing.”[1] Incredibly, a tenant with paint (e.g., of a professional or college sports team) on his or her face could not sit out on the porch of a house or a balcony of an apartment without the property owner’s written permission. Even indoors, in the privacy of the person’s residence, such permission would be needed. What room is there for liberty in a society having such an invasive law in spite of the fact that no harm to self or others is involved or even imminent? A slogan cannot hold up to such arduous “facts on the ground.”

Tellingly, the police arresting the man in Virginia “were apparently less worried about the weapon, and focused instead on [the man’s] face, which was covered in white paint.”[2] That priority defies common sense (which is what led me to write this essay). Clearly, a sword is more of a threat than white makeup on a face. Such makeup does not even constitute a mask, for the face itself is still recognizable. I suspect that the law’s true intent comes from the interest that police have in being able to identify people. That is to say, the law privileges a police state over individual liberty.

In the context of political protests, such as those of “Occupy Wall Street” in which New York City police cited protesters wearing masks, wearing makeup or even a mask can be considered part of the right to protest (though not free speech, as a mask is not speech). In the “Occupy Wall Street” protests, the mask used symbolized an aversion to governmental power, as per the influence of private wealth. Wearing the mask was in itself a protest.

Additionally, the right to protest anonymously may also be at stake; it is entirely reasonable to fear being identified by government security agencies simply for protesting peaceably. Furthermore, the requirement that political protests exclude the wearing of makeup or masks is dogmatic in the sense of being arbitrary—unless from the standpoint of a government’s security agency in wanting to be able to identify protesters. Where the protests are against the government, the government’s interest in identifying protesters is fraught with difficulty and is rightly to be questioned in terms of legitimacy.

Liberty not backed up by consistent statutes is meaningless. Statutes on the books contravening harmless actions such as face-painting makes a freedom-loving people a living hypocrisy. Some laws are so needlessly invasive that they cast a pall over rival broad claims of liberty; indeed, going to the extreme against liberty is itself a red flag, rather than a virtue.

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[1] VirginiaCode 18.2-422.

[2] Andy Campbell, “’Joker’ Charged with Felony for Concealing His Face in Public,” The Huffington Post, March 25, 2017.