The Judges are the Thing

The more I look at it, the more I’m convinced that what’s truly important about IACHR’s report on Democracy and Human Rights in Venezuela is its heavy emphasis on...

The more I look at it, the more I’m convinced that what’s truly important about IACHR’s report on Democracy and Human Rights in Venezuela is its heavy emphasis on political meddling in the Judiciary.

Deplorable as the abuses detailed in the rest of the report are, the gutting of judicial independence really is the crux of the matter: chavismo’s generalized inclination towards control-freakery would not rise to the level of outright authoritarianism if citizens had some recourse against state authority though the courts.

It’s the government’s control over the key institution that ought to control it that leaves people entirely exposed to any and every abuse of power. When your prosecutor and your judge are both taking orders from the same person, you find yourself naked, facing a grotesque perversion masquerading as justice. It’s the executive’s control of the courts that, in the end, does most to undermine its claim to constitutional legitimacy. 

In this regard, IACHR’s decision to bear witness of these abuses for posterity is especially noteworthy. When the time comes to answer for the assault on Venezuelan’s constitutionally enshrined civil rights we’ve witnessed over the last 11 years, no chavista will be able to allege they somehow didn’t know. The central assault on our liberty is spelled out front and center, taking up five of the first 15 paragraphs in the Executive Summary to IACHR’s report. 

10. The Commission’s report also refers to issues that affect the independence and impartiality of the judiciary in Venezuela. The IACHR reiterates what it has said on previous occasions: that the rules for the appointment, removal, and suspension of justices set out in the Organic Law of the Supreme Court of Justice lack the safeguards necessary to prevent other branches of government from undermining the Supreme Court’s independence and to keep narrow or temporary majorities from determining its composition.


11. The Commission also notes with concern the failure to organize public competitions for selecting judges and prosecutors, and so those judicial officials are still appointed in a discretionary fashion without being subject to competition. Since they are not appointed through public competitions, judges and prosecutors are freely appointed and removable, which seriously affects their independence in making decisions. The IACHR also observes that through the Special Program for the Regularization of Tenured Status, judges originally appointed on a provisional basis have been given tenured status, all without participating in a public competitive process.


12. In addition to the shortcomings in the appointments process, the Commission observes that in Venezuela judges and prosecutors do not enjoy the guaranteed tenure necessary to ensure their independence following changes in policies or government. Also, in addition to being freely appointed and removable, a series of provisions have been enacted that allow a high level of subjectivity in judging judicial officials’ actions during disciplinary proceedings. Even the Code of Ethics of Venezuelan Judges, adopted in August 2009, contains provisions that, by reason of their breadth or vagueness, allow disciplinary agencies broad discretion in judging the actions of judges.


13. Furthermore, even though the 1999 Constitution states that legislation governing the judicial system is to be enacted within the first year following the installation of the National Assembly, a decade later the Transitional Government Regime, created to allow the Constitution to come into immediate effect, remains in force. Under that transitional regime, the Commission for the Functioning and Restructuring of the Judicial System was created, and this body has ever since had the disciplinary authority to remove members of the judiciary. This Commission, in addition to being a special, temporary entity, does not afford due guarantees for ensuring the independence of its decisions, since its members may also be appointed or removed at the sole discretion of the Constitutional Chamber of the Supreme Court of Justice, without previously establishing either the grounds or the procedure for such formalities.


14. Another issue of concern to the Commission regarding the autonomy and independence of the judiciary is the provisional status of most of Venezuela’s judges. According to information provided to the Commission by the Venezuelan State, in August 2009 there were a total of 1,896 judges, of whom only 936 were regular judges. That means that more than 50% of judges in Venezuela do not enjoy tenure in their positions and can be easily removed when they make decisions that could affect government interests. A similar problem with provisional status also affects the prosecutors of the Attorney General’s Office, since all prosecutors in Venezuela are freely appointed and removable.


15. In its report, the Commission also describes how large numbers of judges have been removed or their appointments voided without the applicable administrative proceedings. After examining the resolutions that voided the appointments of various judges, the IACHR notes that they contain no reference to the reasons why the appointments were canceled, and it cannot be inferred that they were adopted through administrative proceedings in which the judges were given the possibility of presenting a defense. The Commission notes with concern that in some cases, judges were removed almost immediately after adopting judicial decisions in cases with a major political impact. The lack of judicial independence and autonomy vis-à-vis political power is, in the IACHR’s opinion, one of the weakest points in Venezuelan democracy.

You can, of course, ignore this stuff. But not in good conscience.