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I. Summary

When Venezuelan President Hugo Chávez Frías faced a coup d’état in April 2002, advocates of democracy in Venezuela and abroad roundly condemned the assault on the country’s constitutional order.  Today Venezuela faces another constitutional crisis that could severely impair its already fragile democracy.  This time, though, the threat comes from the government itself. 

Over the past year, President Chávez and his allies have taken steps to control the country’s judicial branch, undermining the separation of powers and the independence of the judiciary in ways that violate basic principles of Venezuela’s constitution and international human rights law. 

The most brazen of these steps is a law passed last month that expands the Supreme Court (Tribunal Supremo de Justicia) from twenty to thirty-two members.  The National Assembly will choose the new justices by a simple majority vote.  With the new Organic Law of the Supreme Court (Ley Orgánica del Tribunal Supremo de Justicia, LOTSJ), the governing coalition will be able to use its slim majority in the legislature to obtain an overwhelming majority of seats on the Supreme Court.  It will also have the power to nullify existing justices’ appointments to the bench.  It will, in short, be able to both pack and purge the country’s highest court.

A political takeover of the Supreme Court will only 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 fired judges after they decided politically controversial cases.  And it has allowed the country’s second highest court to shut down by failing to resolve the legal appeals of its dismissed judges.  Depriving judges of the security of tenure and allowing them to be summarily fired or prevented from exercising their due process rights violates basic principles of the Venezuelan constitution and international human rights law. 

Human Rights Watch conducted research in Venezuela in May 2004, interviewing current and former judges and justices, justice officials, jurists, legislators, journalists and foreign observers about the legal and practical implications of these practices, as well as the justifications that might exist for pursuing them. 

The president of the Supreme Court, the attorney general and a pro-Chávez legislator all sought to assuage our concerns about diminishing judicial independence by insisting that those wielding authority over judges and justices would show restraint and respect for the rule of law.  Such assurances are beside the point, however.  A rule of law that relies on the self-restraint of those with power is not in fact the rule of law.  

Several officials stressed the need to understand the attitude of President Chávez’s opponents, many of whom—they argued—are unwilling to engage in meaningful compromise or subject themselves to the rule of law.  They insisted that judges and even Supreme Court justices decide cases based on their political convictions rather than the dictates of the law.  As examples they cited the Supreme Court’s failure to convict alleged participants in the 2002 coup and the failure of lower court judges to address allegedly illegal activities carried out as part of the general strike in 2003 that cost the country billions of dollars in oil revenue and did enormous harm to the economy. 

It is true that some sectors of the opposition have subverted the rule of law in their efforts to bring down President Chávez.  It might also be true that some opposition judges allow their political convictions to interfere with their application of the law.  But rather than take steps to strengthen the rule of law, Chávez’s allies and supporters have instead moved to rig the system to favor their own interests. 

We have seen similar efforts before elsewhere in the region.  During the 1990s, President Carlos Menem in Argentina and President Alberto Fujimori in Peru succeeded in remaking their judiciaries to serve their own interests.  The changes ensured their influence over the courts and contributed to a climate of lawlessness that would facilitate the forms of corruption for which both former presidents face criminal charges today.

What makes the developments in Venezuela even more alarming is their potential impact on the country’s already explosive political situation.  Tensions have been mounting for months as President Chávez’s opponents have sought a recall referendum to 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 thirteen people dead, scores wounded, and hundreds more in police detention. 

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.  It is, in other words, the courts that must ultimately ensure that the political conflict does not result in the trampling of people’s freedom of expression and association, due process guarantees, and other basic human rights.  To do so effectively, it is imperative that judges and justices be able to act with the independence and impartiality that are mandated by the Venezuelan constitution and international human rights law.

Main Recommendations

The future of Venezuela’s judiciary is now largely in the hands of its highest court.  To salvage the autonomy of the judicial branch, the Supreme Court should strike down, on constitutional grounds, the provisions of the court-packing law that subject the court to the political agenda of the governing coalition.  To promote the independence of judges, the Supreme Court, in its administrative capacity, should reactivate the suspended program that would create judgeships with security of tenure and ensure full and prompt due process for judges facing dismissal, especially those accused of mishandling politically sensitive cases.

The international community can help.  In recent years, the World Bank and the Inter-American Development Bank have supported projects aimed at improving the administration of justice in Venezuela—from training prosecutors and police to developing court infrastructure.  The most urgent improvement needed now is the strengthening of judicial independence and autonomy.  Without that, other improvements may only help a fundamentally flawed system function more efficiently.  To encourage progress where it is most needed, all future international assistance aimed at improving the Venezuelan justice system should be made contingent upon Venezuela taking immediate and concrete steps to shore up the independence of its judges and the autonomy of its highest court. 

The Organization of American States (OAS) also has a vital role to play.  The Inter-American Democratic Charter, signed in 2001 by foreign ministers of Venezuela and thirty-threeother democracies, authorizes the OAS to respond actively to threats to the democratic order of its member states.  It was this commitment to defending democracy that led the OAS to denounce the aborted coup against President Chávez in April 2002.  Today Venezuela’s democratic order is threatened in a different way, as the judiciary’s increasing vulnerability to political manipulation undermines the country’s rule of law.  Unless concrete steps are taken immediately in Venezuela to reverse this course, the secretary general of the OAS should use his authority under Article 18 of the Charter to take actions, with the prior consent of the Venezuelan government, to assess the situation and possibly seek a collective response from the OAS.   

The ultimate responsibility for the crisis in Venezuela’s judiciary lies with President Chávez and his governing coalition.  To prevent further erosion of the country’s separation of powers, the president should instruct his supporters in the National Assembly to suspend implementation of the new court-packing law immediately and promote legislation that would modify those provisions that undermine the independence of the judiciary.  The president should also be prepared to welcome and collaborate actively with the secretary general of the OAS, should the organization seek ways to help Venezuela address the crisis facing its judiciary.