June 17, 2004

II. International Norms on Judicial Independence

The OAS and the Inter-American Democratic Charter

Democracy is indispensable for human rights, and an independent judiciary is indispensable for democracy.The thirty-four foreign ministers of the Organization of American States (OAS) recognized these propositions when they adopted the Inter-American Democratic Charter in 2001.[1]The Charter defines the "[e]ssential elements of representative democracy" to include "access to and the exercise of power in accordance with the rule of law" and "the separation of powers and independence of the branches of government."[2]

The Inter-American Commission on Human Rights emphasized this link between judicial independence and democratic rule of law in its 2003 report on Venezuela:

The observance of rights and freedoms in a democracy requires a legal and institutional order in which the laws prevail over the will of the rulers, and in which there is judicial review of the constitutionality and legality of the acts of public power, i.e., it presupposes respect for the rule of law.Judiciaries are established to ensure compliance with laws; they are clearly the fundamental organs for preventing the abuse of power and protecting human rights.To fulfill this function, they must be independent and impartial.[3]

It is important to note that the definition of democracy found in the Inter-American Charter and in the findings of the Inter-American Commission was informed in large part by recent history.During the 1990s, several countries in the region saw democratically-elected presidents pursue policies that undermined the separation of powers and rule of law, and thereby degraded their own democracies.In Argentina, President Carlos Menem pushed a court-backing law through congress in 1990, expanding the Supreme Court from five to nine members, and managed to get the new openings filled by his allies.The move assured him an "automatic majority"-as it came to be known in Argentina-that ruled regularly in his favor, often using highly dubious legal reasoning.

In Peru, President Alberto Fujimori undercut the independence of the country's judges through mass firings and the denial of tenure, as well as the passage of laws that circumvented constitutional provisions aimed at guaranteeing judicial autonomy and restricting executive power.Fujimori justified these policies as efforts to combat corruption and inefficiency.But what he succeeded in doing-to an even greater extent than Menem-was to ensure his own influence over the courts.The resulting climate of lawlessness in both countries facilitated the forms of corruption for which both former presidents face criminal charges today.

Venezuela is currently pursuing both a court-packing scheme, similar to that of Menem, and an assault on judicial independence, similar in spirit (if not in scope) to that of Fujimori.As the experiences of Argentina and Peru demonstrate, these efforts do not bode well for Venezuela's democracy.

International Human Rights Treaties

In addition to its commitment to democracy under the Inter-American Charter, Venezuela is party to human rights treaties-including the International Covenant on Civil and Political Rights and the American Convention on Human Rights-that require it to safeguard the independence of its judiciary.[4]What that obligation entails is made clear by a series of "basic principles" on the independence of the judiciary endorsed by the United Nations General Assembly.[5]These principles include:

  • Any method of judicial selection shall safeguard against judicial appointments for improper motives.[6]
  • The term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.[7]
  • Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the conclusion of their term of office, where such exists.[8]
  • A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing . . . .[9]
  • Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.[10]
  • All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.[11]

As this report shows, Venezuela is currently in contravention of all of these principles.In doing so, it undermines its rule of law and severely degrades its democracy.

[1] Art. 7, Inter-American Democratic Charter."Democracy is indispensable for the effective exercise of fundamental freedoms and human rights in their universality, indivisibility and interdependence, embodied in the respective constitutions of states and in inter-American and international human rights instruments."

[2] Art. 3, Inter-American Democratic Charter. "Essential elements of representative democracy include, inter alia, respect for human rights and fundamental freedoms, access to and the exercise of power in accordance with the rule of law, the holding of periodic, free, and fair elections based on secret balloting and universal suffrage as an expression of the sovereignty of the people, the pluralistic system of political parties and organizations, and the separation of powers and independence of the branches of government." (Emphasis added.)

[3] Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Venezuela, December 29, 2003, paras. 150-1.

[4] The American Convention on Human Rights (provides that:"Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of (. . .) any other nature."(Emphasis added.) The International Covenant on Civil and Political Rights (art. 14, para. 1) also indicates the importance of the independence of the judiciary by establishing that: "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law . . . ."(Emphasis added.)

[5] Basic Principles on the Independence of the Judiciary, endorsed by United Nations General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.

[6] Ibid., art. 10.

[7] Ibid., art. 11.

[8] Ibid., art. 12.

[9] Ibid., art. 17.

[10] Ibid., art. 18.

[11] Ibid., art. 19.