June 17, 2004

V. Separation of Powers Under Assault

The National Assembly passed a law in May 2004 that severely undermines the independence of the country's judicial branch.The new Organic Law of the Supreme Court (Ley Orgnica del Tribunal Supremo de Justicia) changes the composition of the country's highest court, as well as its relationship to the other branches of government.

The manner in which the law was passed was highly questionable.The Venezuelan constitution seeks to safeguard the autonomy of state institutions-including the judiciary-by requiring a 2/3 majority vote to approve any modification of the legislation (known as "organic laws") that govern their structure and operation.[45]The National Assembly appears to have violated this provision with the passage of the new law.The governing coalition disregarded the requirement that such laws must be passed with a super-majority of 2/3, passing instead with a simple majority.Moreover, that majority engaged in irregular parliamentary maneuvers, which appear to violate the spirit and perhaps even the letter of the constitution, such as making substantive changes to the law's text after it had been voted on, and fusing multiple articles to avoid a full discussion of each one.

Power to pack the court

The new court-packing law increases the Supreme Court from twenty to thirty-two justices, adding two justices to each of the court's six chambers.[46]The new justices can be designated with a simple majority vote of the National Assembly: a nominee who fails to receive a 2/3 majority in the first three votes can be designated by a simple majority on the fourth vote.[47]In contrast, the twenty current members of the Supreme Court also received at least a 2/3 majority confirmation vote.[48]

Proponents of the law have justified this increase as a measure for alleviating the justices' current workload.[49]This justification is dubious, at best.The four justices (as well as one ex-justice) who spoke to Human Rights Watch all agreed that only two or three of the chambers have any difficulty keeping up with their caseloads (the constitutional chamber and the "political administrative" chamber).[50]According to Supreme Court President Ivan Rincn Urdaneta, the only justification for increasing the number of justices in the other chambers is to help them handle administrative tasks.However, it is not difficult to imagine other means to alleviate the administrative responsibilities of the justices by delegating the work to their staff.Nor, for that matter, is it difficult to imagine ways to alleviate the caseload of those chambers with more cases, such as assigning them more clerks or creating adjunct tribunals to handle cases in which the jurisprudence is already clearly established.

Whatever the justification, however, the impact of the increase on the judiciary's independence is unmistakable.It will allow the majority coalition in the National Assembly to radically alter the balance of power within the country's highest court, ensuring that each of its chambers is controlled by justices sympathetic to its own political agenda.

Power to purge the court

The Venezuelan Constitution seeks to guarantee the independence of justices by granting them a single twelve-year term and establishing an impeachment process that requires a 2/3 majority vote by the National Assembly, after the "citizen branch" (which consists of the attorney general, the ombudsman, and the comptroller) has determined that the justice has committed a "serious offense" (falta grave).[51]

The new law eliminates this guarantee.While the impeachment of justices still requires a 2/3 majority vote, the law creates two new mechanisms for removing justices that do not share this requirement.One entails suspending justices pending an impeachment vote, the other entails nullifying their appointments.

The first mechanism is found in a new provision which establishes that, when the "citizen branch" determines that a justice has committed a serious offense, and unanimously recommends the justice's dismissal, then the justice will be automatically suspended pending an impeachment vote by the National Assembly.[52]The law requires that the president of the assembly call for a hearing and an impeachment vote within ten days.However, such deadlines are habitually disregarded by the assembly, and there is no effective mechanism for enforcing them.Consequently, if the president of the assembly chooses not to bring the issue to a vote, the justice could remain suspended indefinitely.

The definition of "serious offense" for justices is broad and includes highly subjective categories such as "threaten or damage public ethics or administrative morale" and "made decisions that threaten or damage the interests of the Nation."[53]

The National Assembly has also bestowed upon itself the power to nullify justices' appointments by a simple majority vote in one of three circumstances: the justice provided false information at the time of his or her selection to the court; the justice's "public attitude . . . undermines the majesty or prestige of the Supreme Court" or of any of its members; or the justice "undermines the functioning" of the judiciary.[54]

This provision is a clear ploy to circumvent the constitutional requirement that justices can be removed with a 2/3 majority vote of the National Assembly.Calling this action the "nullification of appointment" cannot disguise the fact that it entails firing the justice.

What makes the provision particularly dangerous is the fact that two of the three criteria for "nullification" are entirely subjective and will, therefore, allow the assembly's majority to persecute justices identified with the political opposition.In fact, one member of the governing party of President Chvez, Iris Valera, has explicitly acknowledged this as the law's intent, saying "the 10 coup-backing justices (magistrados golpistas) who supported the de facto government of Pedro Carmona Estanda, should be off the Supreme Court and the new law passed in the National Assembly will achieve this goal."[55]

Implications for the referendum

The packing and purging provisions of the new law-which would be objectionable under any circumstances-are particularly troubling given the current political context.

The prime target of any packing and purging efforts is likely to be the electoral chamber of the Supreme Court that, under the Venezuelan constitution, has jurisdiction over all legal disputes surrounding electoral activity.The chamber currently contains two members (out of three) who are identified with the opposition and voted to order the CNE to count the disqualified signatures on the referendum petition.By appointing two new justices to the chamber, the governing coalition will be able to tip the balance its own way.(The electoral chamber handles the fewest cases and, by all accounts has the least need for additional justices-which may explain the insistence on expanding the number of justices in all the court's chambers.)

Simultaneously, justices who fall into disfavor with the governing coalition could be subject to removal.The attorney general has already opened investigations into the electoral chamber's handling of the referendum case.It is unclear whether or not the suspension provision of the new law would be applicable should the "citizen branch" determine that the justices had committed a "serious offense."The attorney general told Human Rights Watch that he believed that the new sanction could not be applied retroactively.[56]In any case, the fact that the justices are under investigation for their rulings on the referendum issues sends a clear message that they will face similar scrutiny-and possible sanction-for any future decisions on this controversial topic.

[45] Art. 203, Constitution of the BolivarianRepublic of Venezuela.

[46] Art. 2, Ley Orgnica del Tribunal Supremo de Justicia.

[47] Art. 8, Ley Orgnica del Tribunal Supremo de Justicia.

[48] While there is disagreement among Venezuelan jurists as to whether this 2/3 majority was or is actually required by the former or current Constitution, most agreed that Supreme Court nominees generally did receive such a vote.

[49] Human Rights Watch telephone interview with National Assembly member Calixto Ortega, May 6, 2004.Human Rights Watch interview with Supreme Court President Ivan Rincn Urdaneta, Caracas, May 13, 2004.

[50] Human Rights Watch interviews with Supreme Court President Ivan Rincn Urdaneta, Caracas, May 13, 2004, Juan Rafael Perdomo, Caracas, May 13, 2004, Supreme Court Justice Blanca Rosa Marmol, Caracas, May 13, 2004, Supreme Court Justice Carlos Martini, Caracas, May 14, 2004.Human Rights Watch telephone interview with former Supreme Court Justice Carlos Escarr, May 16, 2004.

[51]Articles 264-5, Constitution of the BolivarianRepublic of Venezuela.Article 265 states: "Supreme Court Justices will be subject to removal by the National Assembly by a super-majority of two-thirds of its members, after a hearing is granted the affected party, in cases of serious offenses found by the Citizen Branch, in accordance with the law."

[52] Art. 23, Number 3, Ley Orgnica del Tribunal Supremo de Justicia. "Supreme Court Justices will be subject to suspension or removal from their responsibilities, in cases of serious offenses, by the National Assembly, following the petition and determination of offenses by the Citizen Branch.In case of removal, the [decision] must be approved by a super majority of two thirds (2/3) of the members of the National Assembly, following a hearing for the Justice.At the moment that the Citizen Branch determines that an offense is serious and unanimously seeks removal, the Justice will be suspended from his or her post, until the definitive decision of the National Assembly.Likewise, [the Justice] will be suspended if the Supreme Court declares that there are grounds to prosecute him or her; in which case, this measure is different from the suspension sanction established by the Organic Law of the Citizen Branch."

[53] Art. 11, Ley Orgnica del Poder Ciudadano."The following are considered a serious offense on the part of Supreme Court Justices: 1. When they attempt to harm [atenten], threaten, or damage the public ethics and the administrative morale established in the present Law . . . . 4.When they adopt decisions that attempt to harm [atenten] or damage the interests of the Nation."

[54] Art. 23, Number 4, Ley Orgnica del Tribunal Supremo de Justicia: The National Assembly, by a simple majority, will be able to annul the administrative act by which a Justice is appointed, principal or substitute, when this person has supplied false information at the time and for the purposes of his or her nomination, which prevented or distorted the fulfillment of the requirements established in this Law and in the Constitution of the Bolivarian Republic of Venezuela; or when the public attitude of these, which [sic.] aims to harm [atente contra] the majesty or prestige of the Supreme Court, of any one of its Chambers, of the Justices of Judicial Branch [sic.]; or when it aims to harm [atente contra] the functioning of the Supreme Court, one of its Chambers, or the Judicial Branch."(Emphasis added.)

[55] National Assembly member Iris Varela, quoted by government news agency, Venpres, May 3, 2004.("[L]os 10 magistrados golpistas que apoyaron al gobierno de facto de Pedro Carmona Estanga, deben quedar fuera del Tribunal Supremo de Justicia y la nueva Ley aprobada en la Asamblea Nacional, servir para lograr ese propsito.")

[56] Human Rights Watch interview with Attorney General Isaas Rodrguez, Caracas, May 14, 2004.