Judicial Reform in Venezuela
The recent passage of a
new Supreme Court law, and subsequent international response, has drawn
attention to the process of judicial reform in Venezuela. Some recent
commentary in the U.S. would suggest that the problems of the Venezuelan
judiciary are 1) new; 2) worse under the Chávez government than under its
predecessors; 3) the product of a failure by the Chávez government to
meaningfully address these issues; 4) or an attempt to subjugate the courts to
the executive branch. These assumptions fail to stand up to scrutiny.
Judicial Reform: Background
It is widely recognized
that Venezuela’s judicial system had very low credibility prior to the Chávez
government. In a recent report, Human
Rights Watch (HRW) notes that “When President Chávez became president in 1999,
he inherited a judiciary that had been plagued for years by influence-peddling,
political interference, and, above all, corruption...In terms of public
credibility, the system was bankrupt.”[1]
HRW points out that most Venezuelan judges have been appointed on either a
temporary or provisional basis and thus lack in independence. The report notes
that Venezuelan officials recognize this: “Venezuelan justice officials, judges
and jurists of all political stripes also acknowledge the problem…[T]he 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.”[2]
The report further notes that the situation was not appreciably better before
the Chávez government, despite the misleading representations by the
opposition. In 1997 only 40% of judges
held permanent appointments.[3]
Accomplishments of Judicial Reform
under the Chávez Administration
Since taking office the
Chávez Administration has attempted to address these problems. In its recent
report, HRW acknowledges that “the judiciary has opened new courts in an effort
to increase access to justice.”[4]
In 2002, Inter-American
Development Bank's (IDB) magazine noted that the 1999 judicial reform
streamlined sentencing and strengthened defendants' rights. When President Chávez took office, 75
percent of prisoners in Venezuela had not yet been sentenced. Three years later, less than 43 percent of
prisoners had not yet been sentenced. Caracas law professor Gonzalo Himiob
Santomé, a consultant of the IDB in Venezuela, noted that previously a suspect
could be arrested and held for 16 days before charges were brought against him.
“Now a suspect must be called before a judge within 48 hours.”[5]
In December 2003, the
World Bank reported that “The [judicial] reform effort has made significant
progress – the STJ [Supreme Court] is more modern and efficient.” It further
noted that the “overall clearance rate[6]
increased by about 30-40 percent in 1997 – 2002. Also, its decision
publications which took 7 years are now available immediately via Internet, and
its management of lower courts has improved...[For example,] average duration
of cases from filing to disposition in collection of money disputes in civil
courts... has declined from 790 days to 237 days...”[7]
The New Supreme Court Law
The new Supreme Court law
allows the National Assembly to appoint the new judges with a simple majority
instead of a two-thirds majority, when the legislature has failed to achieve a
two-thirds majority after three attempts. Approval by a simple majority is not
unusual by international standards – a simple majority of the Senate is required
to confirm a nominee to the U.S. Supreme Court. Article 264[8]
of Venezuela’s Constitution 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 new law also allows the government to
increase the size of the court from 20 to 32. The Constitution does not specify
how many judges should preside over the Supreme Court. Legislators supporting
the new law argue that the current number of judges is insufficient for the
caseload of the court; unlike the U.S. Supreme Court, the full Court does not
preside over every case, so increasing the number of judges increases the
Court’s capacity.
HRW and others claim[9]
that the new Supreme Court law, as an “organic law,” requires a 2/3 majority to
pass the legislature. However, the Constitution’s Article 203, which HRW cites,
says that a two-thirds majority is required of those present to begin
discussing the law, not that a two-thirds majority of all Assembly members is
required to pass the law. The law reads as follows: “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.”
The new law says that a
judge who is accused by the public prosecutor of wrongdoing will be suspended
until the judge’s impeachment trial is completed. However, under Venezuela’s
Constitution, the prosecutor’s office is independent of the executive. The
executive plays no role in accusing judges of wrongdoing; also, it plays no
role in adjudicating the issue, since this task
belongs to the legislature.
The new law allows that
the appointment of judges who falsified their resume in order to meet the
requirements for a Supreme Court appointment may be nullified by the
legislature. It is reasonable that an appointment should be “nullified” if it
was obtained under false pretenses.
However, the new law also
allows an appointment to be nullified if the Justice’s “public attitude . . .
undermines the majesty or prestige of the Supreme Court” or of any of its
members, or if the Justice “undermines the functioning” of the judiciary. The
vagueness of these provisions has been widely criticized.[10]
It is quite possible that Venezuela’s Supreme Court, which is required by the
constitution to automatically verify the constitutionality of the Supreme Court
law, will invalidate these provisions. Indeed, the Court has often invalidated
laws passed supported by the Chavez Administration in the past.
Failure to Allow Prosecution of Coup
Leaders
Some might wonder what reasonable
argument Venezuelan legislators might have for wanting to replace some members
of the Supreme Court. In 2002, the Supreme Court did not allow the prosecution
of people who led a military coup against the elected government. It is
reasonable for legislators to consider this an impeachable offense. Indeed,
failure to allow prosecution of coup leaders constitutes a major threat to the
rule of law, and indicates to some that the Court is already politicized, in
favor of the opposition.
U.S. Precedents on Judicial
Impeachment
In 1970, Republican
Congressman Gerald Ford called for impeachment, under the provisions allowed by
the U.S. Constitution, of a U.S. Supreme Court Justice. Rep. Ford stated: “...
an impeachable offense is whatever a majority of the House of Representatives
considers it to be at a given moment in history; conviction results from
whatever offense ... two-thirds of the other body considers to be sufficiently
serious to require removal of the accused from office.”[11]
Prior to the impeachment
of President Clinton, the House of Representatives had impeached 15
individuals, including a president, 12 judges, a senator, and a Cabinet member.
The Senate convicted 7 of the 15.[12]
National Lawyers Guild National Vice President Nathan Newman noted that “Most
were impeached for acts of personal impropriety but a number of others have
been impeached strictly for their official conduct. The early history of the
Republic saw a number of politically-charged judicial impeachments…It is
relatively clear that the framers of the Constitution saw impeachment as an
important political check on the judicial branch.”[13]
William Taft, who served
as both Chief Justice of the Supreme Court and President of the United States,
said in remarks made to the American Bar Association: “Under the authoritative
construction by the highest court of impeachment, the Senate of the United States,
a high misdemeanor for which a judge may be removed is misconduct involving bad
faith … or recklessness in his judicial actions, or in the use of his official
influence for ulterior purposes. By the liberal interpretation of the term
"high misdemeanor" which the Senate has given there is now no
difficulty in securing the removal of a judge for any reason that shows him
unfit.”[14]
Conclusion
While some fair
criticisms can be made of judicial reform in Venezuela and of the new Supreme
Court law, it should be recognized that the problems of the judicial system
predate the Chavez Administration. This Administration has made significant
progress towards improving the judicial system in Venezuela, and most of the
provisions of the new Supreme Court law are not fundamentally different from
comparable U.S. law. As the above-cited reports indicate, both the World Bank
and the Inter-American Development Bank have constructive relationships with
the Venezuelan government in the area of judicial reform. The U.S. government
and international human rights organizations are more likely to assist positive
reforms of the judicial system in Venezuela by working constructively with the
government, than by adopting rhetoric that positions them with the most
confrontational elements of the Venezuelan opposition.