My daily update this past Wednesday, March 20, included a brief discussion on the trial and incarceration of San Diego mayor Enzo Scarano the day prior. I wanted to revisit this topic today because of what an incredible development it was, and what repercussions it has for the survival of the rule of law in Venezuela.
How did Scarano (and now others) find themselves in this mess?
On March 7, groups representing importing businesses in San Diego, Carabobo, accused mayor Enzo Scarano of being responsible for the barricades blocking roads in the municipality. The barricades, they argued, were harming their businesses, since road transport was being severely disrupted. The barricades were being placed primarely by opposition demonstrators. As a member of the opposition, the accusing groups argued, Mayor Scarano was responsible for the acts of the barricades.
One of the results of this accusation was that on March 12, the Supreme Court ordered the mayors of two municipalities (Gerardo Blyde of Baruta and David Smolansky of El Hatillo) to:
…immediately remove obstacles [and for] public roads and adjacent zones to be made free of garbage and rubble and of any other element that could be used to block [the ability to get around in the city].
… deploy preventative and crime control actions, and as is within their power, promote strategies and policies in conjunction with their communities with the end of guaranteeing and safeguard social peace, liveability, the peaceful exercise of rights and adherence to the law.
This order was later expanded to include the mayors of several other municipalities, including the mayors of Chacao (Ramon Muchacho), Sucre (Carlos Orcariz), Lecheria (Gustavo Maracano), San Cristobal (Daniel Ceballos), and Maracaibo (Eveling Trejo). All of these mayors identify as members of the opposition.
In other words, the Supreme Court was saying, “You’re opposition mayors, these are opposition protests, so put an end to them.”
In the end, Enzo Scarano was sentenced to ten months and fifteen days in prison for violating the Supreme Court order. The law the Supreme Court invoked in its sentence is Article 31 of the Ley Organica de Amparo Sobre Derechos y Garantias Constitucionales, which states:
Article 31.- Whoever fails to obey the order for constitutional amparo given by a judge will be punished by a prison sentence of six to fifteen months in jail.
The writ of amparo as referenced in this law is a legal provision that allows for two things. First, it allows for citizens to claim protection under the law if they believe any of their rights are being violated, even if those rights are not explicitly stated in the constitution of in the law. In other words, when used in this context, it is a kind of blanket action that tells the court, “Be careful! I think my rights are being violated, but I`m not sure which one just yet.” Second, it allows for a judge to claim protection for the constitution against acts by statutes or the state. This is how the Supreme Court managed to send Mayor Scarano to jail.
In other words, the Supreme Court issued an order for constitutional amparo against Scarano (and the other opposition mayors) because it claimed that through their actions – or inactions – they were harming the constitution by virtue of not upholding it. For reasons that I explain in the next section, this means little, since a writ of amaparo cannot legally result in a prison sentence.
It is widely expected that the other mayors named in the Supreme Court orders will soon find themselves in prison. The next likeliest victim of this tactic is Ramon Muchacho of Chacao.
What does this Scarano’s trial mean the rule of law in Venezuela?
Subsequent to receiving the order, Gerardo Blyde filed a request for clarification from the court, since “maintaining public order” in the way the court ordered in a situation of civil unrest is not within the jurisdiction of municipal police. Let me reiterate this point: The Supreme Court ordered Blyde and other mayors to act in an unprecedented way. Municipal police are not trained/equipped/mandated to deal with civil unrest. This responsibility falls squarely within the jurisdiction of the National Guard, which operates under the Ministry of the Interior and Justice.
Without getting into the ambiguous nature of the order (What’s “any other element that could be used to block the ability to get around the city?” A park bench? Garbage cans? Traffic lights? Trees?), there is no legal basis for the Supreme Court of Venezuela to order a mayor to do this. As a municipal issue, there is a legal “chain of command” that must be followed if the principles of justice are to be respected, and the first step “above” the municipality is the state level. So the Supreme Court was tripping over a bunch of legal avenues to get this order out.
A “more normal” route might have been for the Supreme Court issue that same order or a similar one requesting a more thorough crackdown of the protesters via the deployment of the National Guard to the governors of the states in which those municipalities (San Cristobal, San Diego, Baruta) are – Tachira, Carabobo, and in the case of Baruta, the Capital District. State governors have the power to request assitance from and deploy National Guard troops. As such, the order – had it been given to the governors – might not have been so outrageous and unprecedented. I suspect that the reason the order was not given to the governors of these states is because the governors of Tachira (Jose Vielma Mora), Carabobo (Francisco Ameliach) and the Capital District (Jacqueline Faria) are members of the PSUV.
Even if the circumstances surrounding the arrest of Scarano [and now Daniel Cebellos, Mayor of San Cristobal, who is also currently incarcerated] were unambiguous and firmly set in precedent, Scarano’s trial was full of irregularities and ambiguities, and the fact that his sentence is allowed to stand makes a mockery of the Venezuelan legal system.
Scarano’s lawyer, Alonso Medina Roa, said that the Supreme Court gave them 10 minutes to state their defence. These 10 minutes had to be shared between the mayor and Roa. The defence had planned to submit the testimony of 47 witnesses, but the court dismissed 42 out of hand and accepted that of just 5. The trial, from start to finish, took eight hours over the course of a single day.
…the Supreme Court condemned two citizens [Scarano and the head of the San Diego police] without a sentencing trial… A process took place which, even today, the procedural and constitutional regulations [which allowed for it to happen] are still unknown to us. We even asked the [judges] what the norms were, what the regulations that allowed for this trial to happen were, and they did not provide us with an answer.
We started the proceedings without any type of charge [against us]. The proceeding was given a time limit – in other words, the right to a defence was violated, since we were only given 10 minutes between the mayor [and Medina] to defend ourselves.
The wording [used by the judges] resembled that of a trial of amparo, but resulted in a sentencing trial. A sentencing trial where there was no accusation. A sentencing trial where the Supreme Court Judges [acted in a role they do not have].
Alberto Arteaga Sanchez, a Venezuelan legal scholar, said that the trial has “no precedent in the country“, and that to accept its outcome will mean accepting the fact that the government can now imprison any mayor it wants without a coherent legal formula. Indeed, there is evidence that this is exactly what the government intended to do. The next days will tell if this intention is true, now that the other mayors are squarely in the government’s sights.
An independent judiciary is vital to democracy. An independent judiciary acts as a check on executive and legislative power. It provides boundaries on what the other branches of government can and cannot do, usually by drawing from the constitution to set and uphold these boundaries. The rule of law assures that all subjects – regardless of who they are – are equal under the law. The Scarano trial, shrouded in legal ambiguity and confusion, is not symptomatic of a healthy judiciary that works to uphold the rule of law. It is indicative of a judiciary that is subservient to the executive branch.
The answer to the question, “What does Scarano’s trial mean for for the rule of law in Venezuela” is clear. This “trial” – and the ones that are sure to follow – spell an end to the rule of law in Venezuela.