How the Venezuelan Opposition Could Win

Even as top chavistas like Luisa Ortega break ranks with the Maduro government, it’ll take a miraculous series of events to bring down the regime.

Venezuela's chief prosecutor Luisa Ortega Diaz talks to the media during a news conference in Caracas, Venezuela, on May 24, 2017.
Venezuela's chief prosecutor Luisa Ortega Diaz talks to the media during a news conference in Caracas, Venezuela, on May 24, 2017. (Marco Bello / Reuters)

In late March, the Constitutional Chamber of Venezuela’s Supreme Tribunal issued a breathtaking pair of rulings that threatened the foundations of the separation of powers. In their rulings, the judges urged President Nicolas Maduro to jail opposition figures in the National Assembly for treason, illegally authorized him to modify national hydrocarbon policy, and declared that either they themselves, or whoever they appointed, would subsume the constitutional prerogatives of the National Assembly. In other words, they took a stab at nullifying the legislature.

Days later, Luisa Ortega, Venezuela’s chief of public prosecutions, delivered her yearly address to the press and top members of her staff. She did not let the court’s rulings go unaddressed. The decision to undermine and usurp the assembly’s authority, Ortega said, amounted a “clear rupture of the constitutional order.” By withdrawing all powers from the elected, opposition-controlled National Assembly, Maduro had breached the constitution. In itself, this wasn’t exactly a controversial position among most Venezuelans. But for Ortega to say it, from her position as a longtime pillar of the regime, was a bombshell. The gravity of her words notwithstanding, she smiled and thanked the audience as if she had just won a beauty pageant. All around, her staff thundered applause.

Ortega’s words certainly shook Maduro. Until late March, she was still considered a member in good standing with the chavistas, members of the political movement founded by the late Hugo Chávez. Ortega was a key enforcer of so-called “chavista justice,” prosecuting political opponents of the regime, including Leopoldo Lopez, Venezuela’s most-prominent political prisoner, on often-flimsy charges. While some opposition commentators were skeptical of her sudden swerve, dismissing it as a bluff devised by Maduro strategists to show that some semblance of the separation of powers remained, the government seemed caught off-guard, taking several days to deliver a unified response.

Ortega’s reversal, in other words, became the first crack in a fracturing regime. But for the opposition to actually oust Maduro, or at least restore some balance of power, will require more than just a change of heart from one pragmatic public official.

The current round of heavy protests began in April, sparked by dire living conditions and the realization that Venezuela seems to have lurched into full-on dictatorship. Ortega, the key official the government would need to prosecute protesters, began refusing to go along. The prosecutors in her office simply would not move against people for exercising their constitutional right to protest. The regime needed a workaround—and a workaround is what it found.

During the week of April 10, the National Police and National Guard began bringing demonstrators before military courts, subjecting the largely college-age demonstrators to court-martial. In many cases, civilian protesters are arrested, tried, and convicted all on the same day. Many constitutional experts have argued this is a clear violation of human rights; Ortega voiced her concern over these courts-martial in a recent interview with The Wall Street Journal.

On May 18, Ortega blasted Maduro’s proposed solution to the crisis, a constituent assembly that would create a new constitution; this, Ortega said, would only exacerbate the confrontation. Maduro’s plan to rewrite the constitution has been criticized, because it doesn’t comply with the minimum constitutional requirements—a popular vote—for it to be set in motion.

In the past, government violence alone may have been enough to discourage demonstrations. But this time, the protests remain fueled by the deep crisis and the dwindling prospects for Venezuela’s future. Staggering food and medicine shortages and record-breaking inflation have forced many to scavenge through trash for food.

Since the Supreme Tribunal and the executive’s subversion of constitutional order, all eyes have turned towards Ortega. She is in a position of power that grants her several courses of action.

Ortega has a seat on the Republican Moral Council, the main body of the Citizen Branch, one of the five branches of government in Venezuela, along with the comptroller general, and the ombudsman, a man named Tarek William Saab. The council is tasked with oversight of public officials, sanctioning them when applicable. (There are no previous examples of such a sanction, as the council has been dormant until now.) It makes decisions through a simple-majority vote, and, theoretically, could remove Supreme Tribunal judges for serious offenses, such as violating the constitution by usurping the functions of the National Assembly.

Of late, Saab, the current chairman of the council, has faced increasing international and local pressure. As ombudsman, according to the constitution, he is one of the few government officials in Venezuela with the power to check the excessive power of the state, and mount an unapologetic defense of human rights. He has a mandate to uphold international human-rights treaties, follow up on human-rights claims, and ensure due process. Not only has he failed to comply with his constitutional duties, but he has served as a buffer to cover up the government’s abuses by becoming its unofficial spokesman. As a consequence, NGOs across the world have urged Saab to take action; the Global Alliance of National Human Rights Institutions lowered the ranking of his office for his failure to speak out against government violence against Venezuelans. Even Saab’s own son has slammed him. On April 26, he posted a video on YouTube in which he read a letter called out on his father to take a stand: “Dad, you know what you have to do.”

To relieve himself of the mounting pressure and reduce his exposure to future criminal charges, Saab could work with Ortega through the Moral Council to defuse the crisis by voting for the destitution of the seven judges of the Constitutional Chamber who were responsible for neutralizing the parliament and igniting the protests—the first step on a long road to sanitizing the government. Then, the National Assembly could name key judges to the high court and new authorities to the National Elections Council.

But Saab, up until now, has refused to swerve. Following Ortega’s comments against Maduro’s proposal for a new constitution, Saab issued a statement saying that the president had the full support of the Moral Council to move forward with the constituent assembly. Moreover, any move the council wishes to make against the Supreme Tribunal judges requires the approval of the National Assembly—currently held in contempt by, yes, the Supreme Tribunal. Hell of a catch-22.

But there are other avenues for making a move against Maduro. Ortega, as head prosecutor, could file a request before the Supreme Tribunal to review the merits to have the president sit trial for forcing an illegal constituent assembly, or for instigating violence against the protesters, which has caused over 50 violent deaths in the past few weeks. This process requires the approval of at least 17 of the 32 judges of the court. Until now only judges Danilo Mojica and Marisela Godoy have spoken out against Maduro’s constituent assembly. They say the assembly would violate the constitution, and that Venezuelans need an electoral option to replace him.

While sources close to the prosecutors’ office have told me that this option has been discussed at length, the fact remains that removing Maduro is a complicated endeavor. It would involve a “pre-trial” process to approve the merits of the accusation, and an administrative process that would require that the National Assembly and the Supreme Tribunal work together. This is highly unlikely at this point, considering that the seven judges of the constitutional chamber and the president of the Supreme Tribunal, who have been sanctioned by the U.S. Treasury Department for their actions to undermine the power of the legislature, still hold significant control over the highest court.

But before embarking on such a high-stakes course, Ortega, far from the hardline chavista she once was, may first move to challenge the constituent assembly in court. Her office has been leading several investigations on government violence during this protest cycle. This puts pressure on the military, which has been largely responsible for the violence. The regime also relies heavily on the military to maintain its hold on power. It may have the last say on the timing and form of a potential transition out of the Maduro era. Whatever the aftermath, the military will still be important players—a fact that that political forces in Venezuela must come to terms with.

On top of this, there have been reports of troops growing restless, as they, too, suffer the effects of the crisis. But the high command has to toggle between this fact, and its political connections to chavismo—which, because of the irregular functions granted to the military, such as the control over food distribution for public programs, have been a great source of profit for many officers. They are in a catch-22 of their own.

On May 24, nearly two months after her first big strike against the government of Maduro, Ortega once again found herself standing at a podium. Shaky and nervous, she discussed the circumstances of the death of a young protester, clarifying that he was killed by tear-gas bomb shot at close range by a National Guardsman—contradicting the government’s version that the victim was murdered by the opposition. The government responded by illegally delegating the task of investigating the crimes related to the protests to a truth commission installed by Maduro; Nestor Reverol, minister of justice, accused Ortega of fueling the conflict, but the political damage had been done.

Ortega’s move may not produce a direct solution, but it is indeed a beachhead for other dissenting chavistas—including those in uniform—to jump ship, and support a negotiated transition with the opposition.

Venezuela has been driven to a dark place where no institutional solution seems to be at hand. And with each day that passes, it’s clear the answer may not be found in laws and regulations.