June 17, 2004
In the 2002 coup, Venezuela’s democratic order was attacked by some of Chávez’s opponents. But today the biggest threat to the country’s rule of law comes from the government itself.
José Miguel Vivanco, executive director of the Americas Division of Human Rights Watch

The Venezuelan government is undermining the independence of the country’s judiciary ahead of a presidential recall referendum that may ultimately be decided in the courts, Human Rights Watch said in a report released today. President Chávez’s governing coalition has begun implementing a new court-packing law that will strip the Supreme Court of its autonomy.

The 24-page report, “Rigging the Rule of Law: Judicial Independence Under Siege in Venezuela,” also examines how the new law will make judges more vulnerable to political persecution and help ensure that legal controversies surrounding the recall referendum are resolved in Chávez’s favor.

“In the 2002 coup, Venezuela’s democratic order was attacked by some of Chávez’s opponents,” said José Miguel Vivanco, executive director of the Americas Division of Human Rights Watch. “But today the biggest threat to the country’s rule of law comes from the government itself.”

The new law, which President Chávez signed last month, expands the Supreme Court from 20 to 32 members. It empowers Chávez’s governing coalition to use its slim majority in the legislature to obtain an overwhelming majority of seats on the Supreme Court. The law also gives the governing coalition the power to nullify existing judges’ appointments to the bench.

Chávez’s supporters in the National Assembly have announced their intention to name the 12 new justices by July and remove sitting justices whom they identify with the opposition. The Supreme Court will have jurisdiction over any legal challenges surrounding the recall referendum, which is scheduled for August 15.

A political takeover of the Supreme Court will also compound the damage already done to judicial independence by policies pursued by the Court itself. The Supreme Court, which has administrative control over the judiciary, has suspended a program that would reduce the large number of judges who do not have security of tenure. It has summarily fired judges after they decided politically controversial cases. And the Supreme Court has allowed the country’s second highest court to shut down by failing to resolve the legal appeals of its dismissed judges.

Chávez’s allies justify the measures as a response to the intransigence of President Chávez’s opponents. They insist that many judges decide cases based on their political convictions rather than the dictates of the law. As an example, they cite the Supreme Court’s failure to convict alleged participants in the 2002 coup.

“Chávez should be working to strengthen the rule of law in Venezuela,” said Vivanco. “Instead his government is rigging the justice system to favor its own interests.”

What makes the developments in Venezuela even more alarming is their potential impact on the country’s already explosive political situation, particularly the tensions surrounding the successful effort of President Chávez’s opponents to call for the national referendum that could end his presidency.

When the country’s National Electoral Council (CNE) disqualified hundreds of thousands of signatures on a petition to authorize the referendum, thousands of people joined street protests, which culminated in violent confrontations with state security forces that left 13 people dead, scores wounded, and hundreds more in police detention. In May, after voters were given the opportunity to verify disqualified signatures, the CNE announced that enough signatures had been collected to force the recall vote.

Whether the current crisis is resolved peacefully and lawfully will depend in large part on the country’s judiciary. It is the courts that must ultimately determine whether the CNE’s decisions are valid—as well as whether the actions of Chávez’s supporters and opponents, in the streets and elsewhere, are legally permissible.

The report offers recommendations to the Venezuelan government for salvaging the independence of the judiciary. Human Rights Watch urged President Chávez to instruct his supporters in the National Assembly to suspend implementation of the new court-packing law immediately and eliminate the provisions that undermine the independence of the judiciary. The Venezuelan Supreme Court should strike down the provisions of the court-packing law that subject the court to the political agenda of the governing coalition. The high court should also take steps to ensure that lower court judges are not subject to political persecution.

The Organization of American States (OAS) should closely monitor the situation of the Venezuelan judiciary. Unless concrete steps are taken immediately to reverse these threats to judicial independence, the secretary general of the OAS should use his authority under the Inter-American Democratic Charter to address the issue. Article 18 authorizes the secretary general to take actions, with the prior consent of the government concerned, to analyze threats to a country’s “democratic political institutional process,” and seek a collective response from the OAS.

During Venezuela’s 2002 coup, the Charter was crucial in mobilizing member states to join the chorus of condemnation that helped restore President Chávez to office. “The Charter helped save Venezuelan democracy from Chávez’s foes during the 2002 coup,” said Vivanco. “Now it could help protect Venezuela from this new threat.”

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