Chapter 5 - Populism, Constitutional Democracy, and High Courts – Lessons from the Venezuelan Case

Summary

What are the roles of courts in the context of populist government? To what degree – and why – do they collaborate with the initiatives of a populist leader or, instead, use their powers to hold these leaders accountable? Building upon a growing body of work focused on the judiciary and the prospects of the rule of law and populism, this chapter discusses how and to what effect high courts are politicised by populist administrations. It focuses on the role of the Venezuelan Supreme Tribunal (Tribunal Supremo de Justicia, TSJ) under Hugo Chávez (1999–2013) – when this role was transformed – with brief comments about the ‘post-populist’ phase of Nicolás Maduro (2013–present). In particular, this chapter discusses three phenomena that are likely to occur in a variety of populist contexts:

1. (a) crafting a politicised, submissive judiciary, especially via judicial appointments and/or ‘court packing’ incidents;

2. (b) the reactive role of the judiciary vis-à-vis constitutional and legal challenges attempted by political opponents; and

3. (c) the courts’ proactive role in response to requests filed by pro-government actors.

These three dimensions are critical to identify, analyse and build theory around the role of high courts – especially courts of last resort – in the context of weakly institutionalised democracies or hybrid regimes, and can be used to discuss key aspects of the tensions between populist governments and judicial adjudicators.