Venezuela's then-Vice President Nicolas Maduro and National Assembly President Diosdado Cabello attend a ceremony to mark the opening of the judicial year at the Supreme Court of Justice in Caracas, Venezuela on January 21, 2013. 

© 2013 Reuters

(Washington, DC) – Latin American leaders should press Venezuela to suspend plans by outgoing lawmakers to pack the Supreme Court with government supporters, Human Rights Watch said today.

If the re-packed court behaves the way it has for the past decade, it will almost certainly seek to block such efforts, which could provoke a major constitutional crisis that will only further undermine the rule of law in Venezuela.

José Miguel Vivanco

Americas director

On December 6, 2015, the political opposition won 112 out of 167 seats in the National Assembly. On December 8, the current president of the National Assembly, Diosdado Cabello, said the outgoing National Assembly would appoint Supreme Court justices to fill existing vacancies on the 32-seat court before the newly elected legislators take office on January 5, 2016.

“Venezuela can begin to reverse more than a decade of authoritarian rule by restoring the independence of the Supreme Court,” said José Miguel Vivanco, Americas director at Human Rights Watch. “But this opportunity to restore the court’s role as a check on the executive and a guarantor of basic rights will be squandered if Diosdado Cabello succeeds in his plan to re-pack the court.”

In 2004, a pro-government majority in the National Assembly increased the number of Supreme Court justices from 20 to 32 and appointed government supporters to the new seats, including several who openly pledged their commitment to advancing the government’s political agenda while on the bench. Since then, the court has rejected the principle of separation of powers and repeatedly ruled in favor of the government, validating its growing disregard for human rights.

Most recently, in December 2014, the pro-government majority in the National Assembly appointed 16 Supreme Court justices – 12 permanent and four substitutes – to fill existing vacancies. Justices are appointed for a 12-year term.

Under the existing system, the independence of lower court judges is also threatened. More than 60 percent lack tenure and may be removed under procedures controlled by a Supreme Court commission without due process guarantees, the United Nations Human Rights Committee concluded after its review of Venezuela’s compliance with the International Covenant on Civil and Political Rights in June 2015.

Venezuelan authorities have used the justice system’s lack of independence to punish media outlets and jail critics, including prominent political opponents such as Leopoldo López, recently sentenced to almost 14 years in prison, and lesser-known people who publicly questioned government policies.

The National Assembly must now appoint 18 permanent justices to the Supreme Court, including 13 to fill vacancies created by justices who requested their retirement in October 2015, reportedly a year before their terms ended.

On December 8, a special commission created within the National Assembly to carry out the selection process published a list of candidates. The commission must elaborate a shorter list of candidates that will be sent to the “Citizen Branch” – made up of the ombudsman, the attorney general, and the comptroller general, all government supporters – which will select a final short list of candidates to be voted on by the full National Assembly. The pro-government legislators currently have the simple majority they need to appoint justices, but to do so they would have to rush the process without complying with legally established terms for the selection process.

The Constitutional Chamber of the Supreme Court has the power to annul laws adopted by the National Assembly.

“In theory, the new supermajority in the National Assembly should have the votes to overhaul the Supreme Court and restore the independence of the judiciary,” Vivanco said. “But if the re-packed court behaves the way it has for the past decade, it will almost certainly seek to block such efforts, which could provoke a major constitutional crisis that will only further undermine the rule of law in Venezuela.”

The critical importance of judicial independence and its centrality to rule of law and human rights cannot be underestimated, and the international community has a critical role to play in securing an independent judiciary in Venezuela, Human Rights Watch said.

The Inter-American Court of Human Rights has stressed that, “there exists an inseparable bond between the principle of legality, democratic institutions and the rule of law” and that, “one of the principal purposes of the separation of public powers is to guarantee the independence of judges.” The special rapporteur on the independence of judges and lawyers has underscored that, “the principle of the separation of powers ... is the bedrock upon which the requirements of judicial independence and impartiality are founded. Understanding of, and respect for, the principle of the separation of powers is a sine qua non for a democratic State...”

The Inter-American Democratic Charter, signed in 2001 by foreign ministers of Venezuela and 33 other democracies, authorizes the Organization of American States to respond actively to threats to the democratic order of its member states. The charter states that the essential elements of representative democracy include “the separation of powers and independence of the branches of government.”

The Ushuaia Protocol of Mercosur, a regional agreement ratified by Venezuela in 2007, states that the “full validity of democratic institutions is an essential condition” for integration among state parties. Another Mercosur protocol called the Montevideo Protocol, ratified by Venezuela in 2013 but not yet in force, reiterates the member states’ “commitment with the promotion, defense, and protection of democratic order, the rule of law and its institutions, of human rights and fundamental liberties” as “essential and indispensable conditions” to belong to Mercosur.

“This is a critical test for how regional and other governments are going to respond to the Venezuelan people, who voted overwhelmingly for change, but whose voice may be undercut by cynical efforts to further enfeeble the institution designed to protect their rights,” Vivanco said.