June 22, 2004

When Venezuelan President Hugo Chavez faced a coup d'etat in April 2002, the international community roundly condemned the assault on Venezuela's constitutional order. Now, as he faces a recall referendum in August 2004, Chavez's own government threatens to undermine this country's fragile democracy through a political takeover of its highest court.

Chavez's recent announcement that he would accept a national referendum to end his presidency received widespread international attention -- as did a poll showing he might actually be able to win it. What received less attention was the law he signed a week earlier that could give him a decisive advantage when it comes time to tally the votes.

The new law expands the number of Supreme Court justices from 20 to 32. It allows Chavez'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 allows his coalition to nullify the appointments of sitting justices. In short, Chavez's supporters can now both pack and purge the country's highest court.

It is this court that may ultimately determine the outcome of the referendum. It will have to decide whether Chavez, should he lose the recall, can run again for president in the subsequent election. And it will have to resolve any legal challenges that arise from the recall vote itself, which is expected to be hotly contested. Pro-Chavez legislators have already announced their intention to name the new justices by next month, in time for the referendum.

Such a political takeover of the Supreme Court would compound damage already being done to judicial independence by the court itself. The Supreme Court has summarily fired lower-court judges after they decided politically controversial cases. It has effectively shut down the country's second-highest court by failing to resolve the legal appeals of its dismissed judges. And it has failed to grant 80 percent of the country's judges security of tenure, which is an essential ingredient of judicial independence.

Chavez supporters justify the court-packing law largely as a response to pro-opposition rulings in a deeply divided court, such as a highly questionable decision that absolved military officers who participated in the 2002 coup. It may be true that some judges let opposition members off the hook after they sought to undermine the rule of law. But Chavez and his supporters should now be taking steps to strengthen the judiciary. Instead they are rigging the system to favor their own interests.

We have seen similar efforts in the region before. During the 1990s Argentina's president, Carlos Menem, severely undermined the rule of law by packing the country's Supreme Court with his allies. In Peru, Alberto Fujimori, as president, went even further in controlling the courts through mass firings and denial of tenure to judges. The subsequent meltdown of democracy in Peru helped inspire the 34 members of the Organization of American States -- including Venezuela and the United States -- to sign the Inter-American Democratic Charter in 2001.

The Democratic Charter authorizes the OAS to respond actively to threats to democracy in the region, ranging from coup d'etats to government policies that undermine the democratic process, and it identifies judicial independence as an essential component of a democratic system. During Venezuela's 2002 coup, the charter was crucial in mobilizing member states to join the chorus of condemnation that helped restore Chavez to office.

Washington has repeatedly expressed concern with the situation in Venezuela. Yet the Bush administration's ability to advocate democracy there was hurt in 2002 when it chose to blame Chavez for his own ouster rather than unequivocally condemning the coup. The best hope now for international influence is the multilateral diplomacy that the administration once endorsed when it signed the Democratic Charter. Specifically, the OAS should use its authority under the charter to press the Venezuelan government to suspend implementation of the court-packing law. The OAS should also offer to mediate Venezuelan efforts to reach a consensus on how to strengthen the independence of its judiciary.

The Democratic Charter has helped save Venezuelan democracy from President Chavez's foes. Now it could help protect it from the president's own policies.

José Miguel Vivanco is executive director and Daniel Wilkinson is counsel of the Americas Division of Human Rights Watch.

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