It looks like the cat is out of the bag: Human Rights Watch has formally joined Venezuela’s opposition. Well, not quite; it is not a formally consummated deal yet, since their latest report does appeal to President Chavez by saying, “the criticisms offered [in the report] [should] not be mischaracterized as a partisan attack.”
Then why has just about everyone who supports the Chavez government taken the latest Human Rights Watch (HRW) report on Venezuela, about the country’s “Judicial Independence under Siege,” as precisely the opposite of what HRW says it is, as a “partisan attack”? Is it because they do not want to deal with the real issues, as HRW’s America’s Director José Miguel Vivanco suggests, or is it because the report actually is a partisan attack – one that is being launched just in time to turn national and international public opinion against the Chavez government as it faces an unprecedented recall referendum a mere two months from now?
This report is just the most recent and most revealing partisan attack against the Chavez government. It begins by basically equating the April 2002 coup attempt with the new Supreme Court law when it says, “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.” It ends by making demands that are typical of Venezuela’s opposition—demands that the government cannot possibly fulfill, such as suspending the new law, which has already taken effect. Then, since such a demand will not be fulfilled, the report, just as is typical of Venezuela’s opposition, takes the issue to international bodies, such as the World Bank and the OAS.
Valid criticism negated by relentless polemic
The HRW report correctly points out that Venezuela’s judicial system has pretty much always been in very poor shape. According to the report, “In terms of public credibility, the system was bankrupt” before Chavez came to power. The report then goes on to describe the efforts of the Chavez government to fundamentally revamp the judicial system, which succeeded to a limited extent, but then fizzled and eventually died.
The report, however, blames the failure on the country’s “political polarization under Chavez,” saying that “country has grown increasingly polarized in response to President Chávez’s policies and style of governance.” This is one of the points where HRW director Vivanco should not be surprised that Vice-President Rangel considers the report to be a partisan attack. According to the pro-government version events, it is the opposition that has caused polarization by not accepting Chavez as the legitimately elected president and by launching a media campaign against the Chavez government. To unilaterally put all of the blame for polarization in Chavez’ shoes, shows quite clearly where one’s sympathies lie, regardless of one’s position on judicial reform.
The substance of the 24-page report (7 pages) is devoted to a detailed and mostly accurate critique of the failure of judicial reform, where most Venezuelan judges are appointed on either a temporary or provisional basis and thus lack any kind of independence. This problem is definitely not one of the issues that government representatives, such as Vice-President Rangel, are trying to hide from. As the report admits,
“Venezuelan justice officials, judges and jurists of all political stripes also acknowledge the problem. In interviews with Human Rights Watch, the Supreme Court president, other Supreme Court justices, the attorney general, the ombudsman, and current and former judges all conceded that the prevalence of provisional and temporary appointments undermines judicial independence.”
Also, the report implies that the situation was no better before Chavez came to power, since only 40% of judges held permanent appointments then. So why does the report’s title then say “Judicial Independence under Siege in Venezuela,” as if this were a recent development under Chavez? Also, the report does not have a single word of praise for the reform effort, even though it acknowledges, in a parenthesis, that “the judiciary has opened new courts in an effort to increase access to justice.” Blaming the Chavez government for problems that pre-date it and not giving credit where it is due are tactics one would expect from a partisan opposition attack, but not from a serious human rights organization.
Mostly weak critique of the Supreme Court law
It turns out, what the report is really about, at least if one were to believe the report’s title, (hence the urgency) is the new Supreme Court Law, to which the second (and much shorter – 3 pages) part is devoted. Here the report raises the exact same criticisms that the opposition has raised of the new Supreme Court law. Also, the report uses quite pejorative language for a presumably objective report, giving the law a nick-name worthy of the opposition, calling it “the new court-packing law,” consistently throughout the report. Again, no one should be surprised if readers mistake such a report for an opposition document.
First, the new law was supposedly passed under questionable circumstances (the opposition’s role in these circumstances, of a minority attempting to block the functioning of the legislature at any cost is conveniently omitted from the report). Among the more serious accusations leveled here is that an “organic law,” which this is, requires a 2/3 majority to pass the legislature. However, the constitution’s article 203, which HRW cites, says quite clearly: “Any organic law project, except those that this constitution qualifies as such, will be previously admitted by the National Assembly by a two-thirds vote of the members present before beginning discussion of the respective law project.” (emphasis mine) Note, it does not say that a two-thirds majority of all Assembly members is required to pass the law. Only a two-thirds majority is required of those present to begin discussing the law.
Second, the Supreme Court law allows the Chavez government to “pack” the court by increasing its members from 20 to 32. Here it is important to note that the number of judges is slightly arbitrary. That is, the constitution does not specify how many judges should preside over the Supreme Court. The ability of the legislature to specify the number of judges is something that is completely within the realm of the legislative power, just as it is in the U.S. While it certainly will tip the balance of power towards the government in terms of the judges’ sympathies, this, by itself, is not an undermining of judicial independence, as the report suggests. Criticizing this aspect of the Supreme Court law, places Human Rights Watch squarely in sympathy with Venezuela’s opposition, in its effort to make sure that the opposition does not lose its balance of power in the court.
Rather, HRW should have focused only on how this “packing” is being done merely because the legislature has the power to do so, not because there is an objective need for more justices. In other words, on moral grounds this practice is questionable because its basis appears to be Machiavellian. Also, in practical terms, one ought to point out that future legislatures, where the opposition has a majority could, in theory, increase the number of judges yet again, so as to regain its share of power, leading to an ever larger Supreme Court. There ought to be some sort of more or less objective determination, fixed in the law or the constitution, which sets the number of Supreme Court judges. Independence, as I will argue below, is not the issue.
Third, the National Assembly may appoint the new judges with a simple majority instead of the usual two-thirds majority. In an ideal world judges would be appointed by consensus, but since this is not possible, often a two-thirds majority is chosen, as is also the case with this law. However, knowing that Venezuela’s real world is even less ideal, the law’s authors have chosen to make a simple majority a possibility when a two-thirds majority fails after three attempts. Certainly, this is likely to lead to a simple majority approving the judges every time a new one has to be appointed, simply because politics seeks to find the lowest common denominator at every occasion. However, approval by a simple majority is nothing unusual in the world history of judicial appointments, nor is it unconstitutional as the HRW report suggests.
Article 264 of Venezuela’s constitution clearly states: “The magistrates of the Supreme Tribunal of Justice will be chosen for a single twelve year term. The law will determine the procedure for their election.” The report, though, says, “there is disagreement among Venezuelan jurists as to whether this 2/3 majority was or is actually required by the former or current Constitution…” Such a statement, despite the relatively unambiguous constitutional text, raises the possibility that Chavez supporters are committing an illegal act, without providing any proof whatsoever. Again, the partisan nature of the report rears its ugly head.
Fourth, the new law says that a judge, who is accused by the public prosecutor of wrong-doing, will be suspended until the judge’s impeachment trial is completed. This is the first time where it seems plausible to speak of a threat to judicial independence, since the executive could, presumably, launch frivolous suits that never come to trial and thereby indefinitely suspend any and all judges it does not like. Except, there is a catch: under Venezuela’s new constitution, the prosecutor’s office is completely independent of the executive – it constitutes an additional fourth power, besides the judiciary, legislature, and executive (as does the electoral power).
In other words, the executive plays no role in accusing judges of wrong-doing and it also plays no role in adjudicating the issue, since this task belongs to the legislature. So, instead of criticizing the government for endangering the independence of state powers, HRW should be congratulating Venezuela for having just about the only constitution in the world where the public prosecutor’s office is a wholly independent position. No doubt, the opposition says that this independence is a sham, since the public prosecutor was appointed by the president (and ratified by a two-thirds majority of the legislature). But if that is the criteria, then no prosecutor is ever independent of the one who appoints them and the critique dissolves in an effort to hold Venezuela to a higher standard than any other country in the world, which would, again, merely prove the point that partisan politics is the name of the game and not serious analysis.
Fifth—and it is here and only here where we finally get to the actual core of the report’s topic of “judicial independence”—the law opens the possibility that the appointment of judges, who falsified their resume in order to meet the relatively tough requirements for a Supreme Court appointment, may be nullified unilaterally by the legislature. Also, the appointment may be nullified if 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.
While it is quite justifiable that an appointment should be “nullified” if it was obtained under false pretenses—this is nothing unusual in the world of labor law—it is much less plausible for the other two cases, where an actual trial ought to be held. No matter which way one looks at this issue, this section of the law does indeed undermine the court’s independence. It makes the court dependent upon a simple majority in the National Assembly. For the sake of preserving judicial independence it would make more sense if such cases were dealt with via an impeachment procedure, which requires a two-thirds vote of the legislature to be successful.
The main problem in the discussion of Venezuela is that there is some confusion as to what the term “independence of powers” means. It can either mean that each branch has it own unique worldview and has no sympathies with or biases in favor of the other branches. This is the usage of the concept that the HRW report and Venezuela’s opposition employ. In this meaning of independence, one would certainly be justified to say that that there is little independence between the executive, the legislature, and the public prosecutor. But, one would have to say that in most countries of the world there is no or little independence between powers, as, for example, in the U.S. the three branches of the state are all controlled by sympathizers of the Republican Party.
Another, in my view more valid, use of the term independence refers to the absence of institutional dependencies between the branches. That is, while each branch exerts “checks and balances” with respect to the other branches, no branch can arbitrarily dismiss or influence, via the threat of sanctions, another branch. Looked at this way, Venezuela’s five branches of government (the constitution adds the electoral power and the moral/public prosecutor power to the usual three) are as independent from each other as in any other country in the world.
Long report and little substance or urgency
In the final analysis, the entire 24-page report hinges on a valid critique of the last two points in this very last paragraph of the new Supreme Court law. But in order to get there, the entire report had to be couched in language and accusations that could do nothing but provoke a virulent response from the pro-Chavez camp. As a result, HRW ends up torpedoing the entire critique. This is a real shame, since I am certain that a different approach would have produced a more favorable reaction in the government. Instead, HRW chose to issue a highly polemical report that contributes nothing to resolving the issues that the report raises.
A response by the Venezuela’s Foreign Minister, Jesus Perez echoes this sentiment, when he says, “the preemptory and prepotent tone with which Vivanco attempts to give instructions to the Supreme Tribunal of Justice translates into an exalted and grandiloquent attitude that hardly accords with his condition as foreign observer of our national reality. Since he did not come to our country to dialogue, but rather to utter baseless accusations, Vivanco cheapens his organization…”
Still, it is entirely possible that Venezuela’s Supreme Court, which is required by the constitution to automatically verify the constitutionality of the Supreme Court law, will invalidate the only provision named above that reduces the court’s independence. After all, the judges who will rule on the issue will know all too well that they too might be subject to those provisions of undermining “the majesty or prestige of the Supreme Court.” Opposition arguments that the Supreme Court is merely a rubber stamp for the Chavez government have no validity either. Last year the constitutional chamber, which is said to be pro-Chavez, annulled some very important elements of the Land Law, which made the redistribution of privately held land much more difficult.
A history of bias
It would be nice to think that the HRW report was a slip-up in what is otherwise a virtuous record in HRW’s defense of human rights in Venezuela. However, HRW has shown itself to be biased to an amazing extent with regard to Venezuela under the Chavez government. For example, during the 2002 coup attempt HRW issued a statement on April 12, the day that “transition president” Pedro Carmona issued his decree in which he dissolved the constitution, the legislature, the courts, and just about all other state entities and named himself president. That day HRW merely appealed to the “transition authorities” to behave themselves, but did nothing to condemn the wholesale dissolution of all constitutional guarantees; nor did they demand from the international community to apply the OAS Democratic Charter to isolate Venezuela diplomatically. The current report, however, while not going so far as to call for sanctions, does recommend that certain provisions of the Democratic Charter be applied to Venezuela now. This pattern, of disproportionately strong criticism of the Chavez government compared to both the opposition and to other governments in Latin America, is a pattern that HRW has pursued for quite some time now.
 See Al Giordano for an in-depth comparison to the U.S. justice system and a discussion with one of the advisors to the report.