http://www.zcommunications.org/znet/viewArticle/18887
Venezuelan Legal System:
An Interview with Fernando Ramón Vegas Torrealba
September 24, 2008
By Michael Albert
In early September, 2009 I went to Venezuela to give a talk about economic vision at a conference there. I stayed a week, and with Greg Wilpert interviewed numerous people about the Bolivarian Revolution. These interviews will appear in coming days and weeks on ZCom. Here is one we did about the role of the law and legal system, held with Fernando Ramón Vegas Torrealba, justice of the Venezuelan Supreme Court.
– Michael Albert
Okay, by way of introduction, who are you and what is your position here in Venezuela?
My name is Fernando Ramón Vegas Torrealba and I am a justice of the Venezuelan Supreme Court. I work in the Electoral Chamber which has five other Justices, and in total the whole court has thirty two justices in six chambers.
How did you get where you are? Briefly, what is your history?
I was selected by the committee of the National Assembly, people from society, on the one hand, and deputies of the assembly on the other. They do a first screen, then a second, and go through various procedures, and the deputies in the whole assembly make the final selections.
Before you were in the Supreme Court you were…
Just before, I worked for two years with what is called the political police – I was director of education. Before that, I taught in university and also worked at my profession, as a lawyer.
In the U.S. legal system, it is assumed that if a prosecutor and defense council both pursue victory in a fight over the future of the accused or over the dispute) each not caring at all about justice but caring only about winning that fight, the result will be more often than with any other approach, justice. What I am wondering and would like to try to explore is whether here in Venezuela there is any disagreement with that and any inclination toward a new approach to adjudication?
What you describe has been and remains a basic part of the process here too – but there of course really should be justice after the contest.
Our first problem here in Venezuela was that access to justice was very narrow because it was only for people who could pay lawyers, and only people who could feel that they could go to court – because many people are afraid because of the majesty and so forth. So our first task was to widen the capacity of people to have access to justice.
When I told you about how many judges we have in the Supreme Court, it is because we have opened up access and so we have many more cases before the courts. More people can and do come to the courts for justice now.
If I was talking to the planning minister or to someone involved in the economy and I said what is the difference between Venezuela and the U.S., or Venezuela now and Venezuela in the past, they would talk about the new approach to property, the new approach to the organization of work, and the state stores, and so on. They would talk about changes inside the economy. Are you saying that you feel the key thing that is different about the legal system now in Venezuela compared to the past, and even in the future compared to the past, is access?
That is one difference, yes. The other big difference is that we now have an inclination to lean toward the people who have less power. For example, suppose a laborer has a dispute with an owner, or a community member has a dispute with a mayor. Who is the weak party in the dispute? And then what does that imply, when you decide who the weak participant is?
The law, in Venezuela, first investigates and then actually tries to help the weak party. The task is to apply the law, yes, but in a way that will help those who are weaker and poorer, and that will diminish gaps rather than widen them.
What if the case is, one person is poorer, has less education, less means, etc., but is also accused of murder.
Well, that is different. The idea of inclining the law toward aiding the weak is mostly about disputes. On criminal charges the help to the weaker party is mostly about aiding people to defend themselves.
If someone is accused of murder, or some other crime, and is weak, then the law helps him to defend himself. But there is no privilege because of poverty or other weakness, regarding guilt in a criminal trial. The accused gets the same defense, but if guilty, also gets the same punishment, as a rich criminal.
But his defense will be comparable?
Yes, it will be provided by the state, with a lawyer, public defense, etc.
So when you talk about leaning toward justice for the weaker, you are talking about when the courts are resolving a dispute, like a lawsuit?
Yes. Here is an example that the law provides to help the weaker party in a dispute. When a worker has signed a paper with a boss in which the worker has reneged some of his rights, if they are in a dispute, the court ignores it. It is as if the worker never signed it. Because he is the weaker side of the equation, and he has to be defended even as the dispute is addressed. The employer cannot use the document against the worker.
What if the employer has signed a document…
That would be held against him, used as evidence, etc.
Okay, so as changes we have increased access and a bias to protect the weak against the strong.
There is another dimension, as well. Consider a case with a child and adult. They are not only the object of the process, as we understand the law, but also the subject of the process. So, the child, for example, can talk in the court, no matter what age. The child can speak out as a subject of the process, not only an object.
The constitution says that Venezuela is a state of law and justice, not just law. Is that related to what you have been summarizing?
Yes, exactly.
And are there any other implications of saying it is law and justice, rather than just law?
Well, yes, I think there is more to come, because we are working it. We don’t yet have a finished system. Every day we are providing more elements and features to try to deliver justice to people. The constitutional phrase means that justice has to prevail. In a case if you find a strict application of the law is bringing you an unjust result, you have to work for justice. You have to reinterpret or add to the results.
What would happen if a worker in a private firm came to the court and said I know the law says that it is okay for the employer to pay me the wage I am getting, but it is unjust. I should be paid more, much more. Now what happens?
No no, in this case….
It is true, isn’t it?
Yes, it is true. That could happen, of course…
If I was working, and I knew that this is how the legal system worked, I would be right in here seeking better wages, and much more.
No. you would not, be granted that. Because it is a legal contract…
But the worker is the weak party…
Well, yes, but was the worker kicked out wrongly, or paid less than the agreement? Or forced to do overtime and not paid properly. That would be different. Then the worker could go to court and get redress.
This brings us to another line of concern I wanted to ask about. To what extent does it make sense, or not, for the Bolivarian Revolution to obey laws constructed for an entirely different time and purpose and to abide institutions with those old roots, as well? And that’s exactly what the last situation was. The law says that the owner can pay exploitative wages, and you abide it, at least for awhile. It is a very contradictory situation you are in, it seems to me.
It is transition. If we had already constructed socialism we wouldn’t even need to talk about this. But that is not the case. We still have enterprises owned by capitalists that work under a set of laws that they have to abide. The owner pays a wage, the worker has to labor some agreed number of hours per day. And so on.
But insofar as you are an advocate of the revolution, don’t you feel torn at times?
(Laughs) Well, I wish it could be otherwise, sure. What you are trying to say is am I uncomfortable.
Yes, that is what I am asking.
Well, I am in some cases, but in other cases not. For example, if someone comes up to you and he might get into a fight with his boss, and then the court can behave positively and justly.
So you do the best you can, basically?
Yes. My heart is not so joyous about some cases as others.
What about the fact that the right wing will use the law whenever it is to their advantage and violate it when it isn’t?
They do it all the time…
And doesn’t that frustrate you…
(Laughs) Yes. Of course. They voted against our constitution but now they microscopically examine it to find any technicality they can use.
And the hypocrisy…
Gets you fed up. Tremendously. But what can you do about it? They can say what they want.
That leads to another issue. There are all these newspapers in Venezuela that represent a sector of the population who are opposition, and that are full of all sorts of manipulation and lies and the government has been incredibly patient about the whole thing. What do you think is the root of that patience? Is it free speech, or is it the tactics of how to go about social change successfully? I should say, I suspect it is much more the latter than the former…
(Laughs) Our process is different than the Cuban process, for example. We have free elections here. We have free speech. And the way the media are connected internationally, and the way they are owned, if we were to alter them, all of a sudden we can have a big stone on our head.
One of the things our opponents can’t say, or it is very difficult and duplicitous to say, is that we have a dictatorship. They say it, but it is talking in a vacuum. We not only have elections and people saying whatever they like, we go beyond what other western countries permit in these regards.
But it is one thing to be able to say what you wish, and it is another thing for a small sector to be able to dominate the airways with what they want to say, routinely lying. That’s not the same. Free speech doesn’t guarantee the right to scream in everyone’s ear, which is what the mainstream media is doing.
I keep on telling that to people but not everyone gets it. Some get it though. Many citizens harass newspaper reporters, yelling at them when they venture out into the street, and that’s okay.
That happens?
Yes, all the time. With the TV reporters who folks recognize.
What is your feeling about the disqualification of candidates? It is a very controversial issue and in the U.S. some who have read about it don’t understand it. Could you explain what is the process and logic?
Opponents say it is unconstitutional to disqualify people from being candidates. But they only read parts of the constitution they want to read. Actually, Article 29 describes the basis for investigating violations of the public by officials and applying sanctions. And the Assembly passed a law, including the opposition in the assembly who of course voted, that a person’s participation in seeking public office could be suspended to protect the public. It isn’t a criminal sanction, so it doesn’t involve the due process of courts, but it does preclude the person running for office, it precludes the person being elected to office.
Has this law been used?
Yes, and there is a moral explanation for it. If you mismanaged public funds, for example, what sense would it make to let you run for office where you would have access to even more public funds? Surely, failing to properly manage public funds should preclude future management of public funds.
Well, in the U.S., such violations are more like a prerequisite for running.
(Laughs) Yes, in the U.S. it is an asset to be crooked, but not here. So there is a constitutional basis for the policy. There is a law and a legal basis. And there is a moral basis. More, it is not only people in the opposition who are disqualified from being candidates. In fact, most of the people who have been disqualified are from the government and are allies of Chavez.
So it is primarily about graft and taking money meant for other purposes?
Well, some took money for themselves, yes, but in that case it should be a criminal charge. Rather, disqualification is about not doing the correct use of money, or the proper handling of it, according to the law. It is about cutting corners, or using money for purposes other than those earmarked. For example, there are funds allotted for buying paper. Okay, you have to buy paper. If you buy something else, a car, with those funds, that is a violation. It is a violation even if what you bought wasn’t for yourself.
I will give you an example. The woman who was Vice Minister of the Foreign Ministry when she was a member of a municipal council voted to spend some money that was in the budget for one purpose, for another. It was therefore misuse. And everyone who voted to do that is now disqualified from running for office, including her.
That’s quite harsh. It would include everybody in the U.S. Senate, not one or two Senators, but all of them. What if someone says, yes, instead of spending funds on x, I spent them on y… but the reason was that we didn’t need x and so spending on x would have been counter productive, when the time came, because things had changed from when it was allotted, and so when it was suggested it should be spent instead on y, it made very good sense to do that, for the public.
That can happen. But then you have to go through the correct procedures to make the change. If you don’t, then you are mismanaging, even if what you do would be an improvement over what had been mandated.
Does President Chavez go through the procedures?
He has to…
That wasn’t my question.
Yes, he has to do it, like everyone else. The law provides the solution, because of course as you describe it can make sense to make changes, but then you have to do it properly.
For example, you’ve exhausted the funds to buy paper, but you need to buy paper for kids in school. So you have to re-channel some funds, but you have to follow procedures. You cannot just say, okay, take it from there and that’s the end of it.
I am surprised that even at the executive level it doesn’t happen all the time…
No, they respect the rules not least because they are so scrutinized. But in addition the President has created various flexible funds, by law. So the executive does have some options, but they are allowed options.
Talking about flexibility, what is your feeling about changing the laws so that Chavez can run for office over and over?
Why not?
So you think it is reasonable?
Of course it is reasonable. If someone is doing the job well, people will want him to stay in office. But the constitution from the past says it cannot be for more than two terms so that would need to be changed, if people want to change it.
What is the problem with restricting Chavez to not run again? The problem is that you think after Chavez, what? Who is going to come? Is the new person going to follow the same path? Or will it end? People want a guarantee that the revolution will continue, and right now the best guarantee is Chavez himself. To keep Chavez is the best option.
So you would like to see him elected again in 2012…
Yes.
2018? 2024?
Maybe. Certainly at least one more period. I don’t see who is going to come after him.
But why aren’t there people who are visible and popular, and highly capable?
I think that is common to all revolutions. Revolutions need a leader. Someone to galvanize energy and inspire…
Yes, but past revolutions typically have other things in common also, but you seem to be getting rid of many features you don’t like.
For example?
I don’t know of any revolution that would treat the media the way you have. I don’t know of any revolution that would…
Well, it is the 21st century and we are making our own way. And it is different…
Okay, but then why couldn’t say the same thing about the need to have new leadership?
Because – I don’t see it. I don’t see anyone who is that capable, of whom we could be that confident. I don’t see anyone who can assure us he will keep on going and we can believe it, without doubt.
Does that worry you?
Yes, that worries me, because it could mean that someone would say let’s stop here – or, even worse, let’s go back.
That’s what worries you about having someone else become President. But what about losing Chavez with so much depending on him, and having no one who can fill in for him?
That would be terrible. And that can happen. He could be assassinated. But I don’t see people who are capable and who could have anything like the connection Chavez has with the poor people of Venezuela.
But given what is obvious, I think, which is that if anything were to happen to Chavez the project would be in great difficulty, the revolution has almost created a situation in which the United States has a very great incentive to kill your president, because it would accomplish so much – even with all the bad publicity and making him a martyr. Whereas if the process going on here had people who could fill in for Chavez, and even people to his left, that would diminish the incentive. For example, why didn’t Chavez in 1998 immediately appoint a Vice President who was more scary to the U.S. than himself? And why not have that person then become more and more visible and popular, so as to be a credible and worthy successor?
Well, in a way, Cuba did that with Raul Castro in the wings behind Fidel. We face a danger, it is hard to cope with, but we are trying. Cuba took care of Fidel for fifty years. We have to do the same with Chavez.
By the way, in the recent election about changing the constitution that we lost last December, had the only issue been giving Chavez the right to run again, we would have easily won. The complication came because people around him said no, as long as we are going to vote on changing the constitution, we should make many needed changes. Add this and add that. 36 Articles. And that complicated the vote.
The opposition had arguments against various parts of the referendum. The reclassifcation of property types was perhaps the biggest problem. It had no use and it provided the opposition a target. They came out with some ads, propaganda, saying that the government was going to confiscate small stores and shops and even Chavez supporters were scared, fearing for their homes, or worrying about not being able to leave things to their children. Who made the mistake? We did.
And you think without the confusing additional points there would have been a victory?
In a vote on the sole question of Chavez running again, yes, an easy victory, about sixty forty.
And so in your view the strong opposition is how large?
Out of the forty percent who would have voted against Chavez being able to run again, there are, I would guess, ten and maybe even twenty percent who could become Chavez supporters. People are confused.
Obviously a key component of the opposition is owners but what else characterizes the opposition? Do you have a feeling for that? What in their background and beliefs causes them to be strongly in the opposition?
People who were located around the dominant political parties before Chavez, who shared in the political spoils at the time, they are the core of the opposition. The rest of the opposition are people who are frightened. They are people who are afraid they will lose their house, lose their car, have to share their house with someone new as a boarder imposed on them by the government, and other crazy fears.
What would you say to a person who argues it is an amazing achievement to be carrying out essentially a bloodless revolution, but the pace at which you are doing it – keeping all the mainstream propaganda organs, keeping the market in place, having parts of the economy subject to the will of owners, etc. – is compromising the benefits and consciousness development you are winning. The pace is such that you may well lose strength faster than you gain strength.
In other words, your advantage is sixty forty now, and while many of the forty could be won over, it is also true that a good part of the sixty is based on policy rather than ideology, so if you keep letting the opposition interfere with policy by lying or in other ways like causing inflation, or blocking some production plans, etc., you might start to lose from your sixty. At some point you have to push through to the conclusion, and if you have to push through at some point, maybe it is better to do it sooner than later?
Well it can certainly happen that support dwindles rather than grows. In fact, effectively it happened with the last referendum. The sixty percent was affected, some of it, by the propaganda. It is very complex to advance and also avoid harsh conflict. It is very difficult. Chavez, for example, is currently putting up some cities which he calls socialist cities.
Cities?
Cities, yes. Yes, a few, with tens of thousands of dwellings, factories, and everything else that goes into a city, like schools, hospitals, and so on. And they are going to try to have socialist relations…
Inside the city?
Yes, inside the city. The factories will be run by the people working in them and also the residents. They are doing a city like that in the mountains, not far from where I live, and I see it, and it is booming into existence. What is Chavez trying to do. It is just a guess, but he is trying to show what it would be like to live under socialism, in a socialist way. He is trying to make a showcase.
The whole revolution seems to be premised on that approach as with the Bolivarian University, Bolivarian health care, Socialist workplaces, etc. Construct an alternative and have it, as a showcase to win people over. Don’t fight head on, construct and grow.
What some people worry about, is when you put up the alternative, that you still have markets and you still have the horrible media, so the alternative will be diminished by the hostile environment that it has to function in and it could be that people decide, given the constraints restricting it, that the alternative isn’t so great. And so, if you put up a socialist city but the construction company working on it is privately held and doesn’t share your goals, and the architects don’t agree with you, and the suppliers for the project are trying to subvert it or make it like the past, not the future, the result is likely to be delayed, and the result might be seriously flawed as compared to putting up the city or alternative institution in an environment where everyone who is participating or providing inputs, etc., is trying to do a fine job.
I have heard, I don’t know for sure, that Cubans are working on the city project. And you can see it from where I live, so it is certainly progressing.
Who knows about this? Doesn’t it strike you as a little strange that you, who are a Supreme Court Justice, no less, and you say, about what is going on and why, that you only have a guess.
No, the guess is about the purpose…
I understand, but shouldn’t you know the purpose? Shouldn’t the whole population know the purpose?
No, it is only a showcase going up.
But why wouldn’t Chavez say to the country, here…
He has in fact said he is going to try to make socialist cities…
So he says that to the country, I guess on the President’s weekly TV show?
Yes.
But he doesn’t say the reason I am doing this is because I hope that everybody will see that this is a better way to arrange our lives and live in cities?
Correct, he hasn’t said that.
And is the reason he doesn’t say that because he doesn’t want to polarize opponents? I don’t understand how the opposition could be the slightest bit confused about what is going on and, in particular, where Venezuela is headed, at least regarding the broad issues they care about. It seems to me they should either be fighting tooth and nail, or leaving.
Indeed, they are doing both…
Okay, but then if they understand exactly where things are going, why shouldn’t Chavez tell the rest of the country where things are going, to enlist peoples’ support and involvement even more?
I wouldn’t be surprised if the opposition was more clear about where things are going than much of the population. For the opposition, given their aims and interests, the country is going to hell.
Maybe Chavez will surprise us one day by showing us and the world a complete socialist city. On his Sunday TV show.
Do you watch the show on Sundays?
Yes. Most Sundays I do.
So that show really is…
…how he communicates with…
…everybody? Even the Supreme Court.
Yes. Even the Supreme Court. In fact, especially the court because separation of powers means we can’t talk with him personally, or even people in the executive branch.
So you get critical news often from the show?
Yes. And this is another reason why Chavez is so critical to what we are doing and how we are doing it.
Take the socialist city. You are saying they are going to construct it and it will have schools and shops and factories and so on, and are you saying Chavez himself is figuring out what all those features should look like, and how they should work? What the social relations should be like? It must involve many more people thinking through all this?
Of course, but there is no denying, I think, that Chavez is central to such projects.
What about recent nationalizations? The opposition has been claiming they are occurring without payment…
But of course it is not true. Expropriation involves payment, and that’s what has been occurring. Confiscation would have no price, but there has been no confiscation. The opposition has started a rumor that expropriation is confiscation, but it is nonsense. The law on expropriation, which we abide, is from 1963. The opposition could challenge the price, the amount that is paid but to claim there is no payment is absurd.
Can we talk about the penal code with the reference to disrespect for public officials being a crime? Imagine tomorrow there was a law passed in the U.S. that said you can’t disrespect government officials. There would be outrage, all over the world, and in the United States too, of course. So what is the difference? Why does it make sense to have such a provision in Venezuela, but not in the U.S.?
The provision exists. It predates us. It was not created by us. What was attempted in the Assembly, that did not happen, was to change the amount of the sanctions, to increase it.
Why not get rid of this provision?
The penal code here is the same, from the past, it hasn’t been changed.
But it is obviously not being enforced. If it was being enforced, all the people who write in the mainstream newspapers would be prosecuted, so why not get rid of it?
Well, we would have to change it – and again, it hasn’t been changed. The only time they tried to change it was to increase the sanction…
I know. That’s why I am asking, why not change it – why not eliminate it?
Probably when we change the whole code – we just haven’t gotten to it yet.
Is there anything you would like to add for a left audience in the U.S. and around the world?
Just that I think it is important to talk to people about what is going on here. There is so much confusion and lies and it would help us for people to understand the truth, and to help us have an environment in which we can move forward.