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Court-Packing Law
Threatens Venezuelan Democracy
by José Miguel Vivanco and Daniel Wilkinson
of Human Rights Watch
Article published in The Washington Post and
available at http://hrw.org/english/docs/2004/07/07/venezu9015.htm,
dated July 7th 2004
When Venezuelan President Hugo Chavez faced
a coup d'etat in April 2002, the international community roundly
condemned the assault on Venezuela's constitutional order. Now,
as he faces a recall referendum in August 2004, Chavez's own
government threatens to undermine this country's fragile democracy
through a political takeover of its highest court.
Chavez's recent announcement that he would
accept a national referendum to end his presidency received widespread
international attention -- as did a poll showing he might actually
be able to win it. What received less attention was the law he
signed a week earlier that could give him a decisive advantage
when it comes time to tally the votes.
The new law expands the number of Supreme Court justices from
20 to 32. It allows Chavez's governing coalition to use its slim
majority in the legislature to obtain an overwhelming majority
of seats on the Supreme Court. The law also allows his coalition
to nullify the appointments of sitting justices. In short, Chavez's
supporters can now both pack and purge the country's highest
court.
It is this court that may ultimately determine the outcome of
the referendum. It will have to decide whether Chavez, should
he lose the recall, can run again for president in the subsequent
election. And it will have to resolve any legal challenges that
arise from the recall vote itself, which is expected to be hotly
contested. Pro-Chavez legislators have already announced their
intention to name the new justices by next month, in time for
the referendum.
Such a political takeover of the Supreme Court would compound
damage already being done to judicial independence by the court
itself. The Supreme Court has summarily fired lower-court judges
after they decided politically controversial cases. It has effectively
shut down the country's second-highest court by failing to resolve
the legal appeals of its dismissed judges. And it has failed
to grant 80 percent of the country's judges security of tenure,
which is an essential ingredient of judicial independence.
Chavez supporters justify the court-packing law largely as a
response to pro-opposition rulings in a deeply divided court,
such as a highly questionable decision that absolved military
officers who participated in the 2002 coup. It may be true that
some judges let opposition members off the hook after they sought
to undermine the rule of law. But Chavez and his supporters should
now be taking steps to strengthen the judiciary. Instead they
are rigging the system to favor their own interests.
We have seen similar efforts in the region before. During the
1990s Argentina's president, Carlos Menem, severely undermined
the rule of law by packing the country's Supreme Court with his
allies. In Peru, Alberto Fujimori, as president, went even further
in controlling the courts through mass firings and denial of
tenure to judges. The subsequent meltdown of democracy in Peru
helped inspire the 34 members of the Organization of American
States -- including Venezuela and the United States -- to sign
the Inter-American Democratic Charter in 2001.
The Democratic Charter authorizes the OAS to respond actively
to threats to democracy in the region, ranging from coup d'etats
to government policies that undermine the democratic process,
and it identifies judicial independence as an essential component
of a democratic system. During Venezuela's 2002 coup, the charter
was crucial in mobilizing member states to join the chorus of
condemnation that helped restore Chavez to office.
Washington has repeatedly expressed concern with the situation
in Venezuela. Yet the Bush administration's ability to advocate
democracy there was hurt in 2002 when it chose to blame Chavez
for his own ouster rather than unequivocally condemning the coup.
The best hope now for international influence is the multilateral
diplomacy that the administration once endorsed when it signed
the Democratic Charter. Specifically, the OAS should use its
authority under the charter to press the Venezuelan government
to suspend implementation of the court-packing law. The OAS should
also offer to mediate Venezuelan efforts to reach a consensus
on how to strengthen the independence of its judiciary.
The Democratic Charter has helped save Venezuelan democracy from
President Chavez's foes. Now it could help protect it from the
president's own policies.
José Miguel Vivanco is executive director and Daniel Wilkinson
is counsel of the Americas Division of Human Rights Watch.
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