By Francisco Peregil
El País Internacional – Published April 7, 2014
HRW indicates the country’s Supreme Court is one of the “crudest examples” of lack of judicial independence in the region.
The Venezuelan government can boast the questionable honor of not having faced adverse rulings by the Supreme Court since Hugo Chávez’s government (1998-2013) reformed the organic law of the Supreme Court and appointed new magistrates in 2004. Given the Court’s record during the last nine years, it seems unlikely that the appeal put forth by Leopoldo López – the opposition leader who has been in jail for the last 47 days for allegedly encouraging violence – stands a chance of being upheld. According to the NGO Human Rights Watch, such lack of independence is only comparable to the situation in Honduras, Nicaragua and Ecuador.
Most Latin American Supreme Courts have at some point stood against their governments’ policies. The balance of powers, so healthy in any democracy, has been exercised very visibly in most of the region. In Argentina, for example, the Supreme Court vetoed the judicial reform driven by Cristina Fernández’s government last year. In Brazil, the Supreme Court condemned part of the leadership of the governing Workers’ Party in the case of political corruption known as mensalão. Seven members of the party’s hierarchy are currently in prison. The Mexican Supreme Court declared unconstitutional the so-called Televisa Law, arguing it promoted monopoly practices.
The Uruguayan Supreme Court of Justice declared void the law which prevented impunity for those responsible for the repression during the dictatorship. This was a significant blow for the Uruguayan left and José Mujica’s government. In February 2010 the Colombian Constitutional Court vetoed the possibility for Álvaro Uribe to run as candidate in the presidential elections for a third mandate. In 2012 the Supreme Court of Chile, upheld an appeal lodged by ecologist organizations, and paralyzed the construction of the hydroelectric Project of Puerto Aysen, a government-led initiative. And in 2008, the Constitutional Court banned the sale of the day-after pill, previously approved by Michelle Bachelet’s government. In Bolivia last year the Constitutional Court declared as partially unconstitutional the law of Autonomy, which had allowed Evo Morales government to dismiss several mayors and governors from the opposition. In 2012 the Constitutional Court of Costa Rica repealed the flagship fiscal law of Laura Chinchilla’s government. The examples are many and diverse.
Most Supreme Courts have occasionally ruled against their government’s decisions.
The Venezuelan situation is, however, different from most in the region. José Miguel Vivanco, Director of the Americas chapter of the NGO Human Rights Watch, remarks that the Supreme Court of Justice (TSJ) of Venezuela has become “an appendage of the government” and that it is “one of the crudest examples of lack of judicial independence in the region.” “Since 2004 the Chavez government has manipulated the composition of the high court, filling it with unconditional supporters. The result is a partisan justice, aimed at legitimizing abusive practices, such as the current arrest of opposition mayors”, says Vivanco.
The HRW representative also highlighted the vulnerable situation most judges find themselves in. “The TSJ has powers to appoint and dismiss any provisional judge of the lower courts, which represent the vast majority in the country. This results in a perverse system, where a partisan supreme court can dismiss practically any judge by simply sending a telegram, including the judge currently in charge of Leopoldo López’s case.”
Vivanco thinks that the “most glaring” example of the lack of judicial independence in Venezuela was the arrest of judge María Lourdes Afiuni, in December 2009. “This had a major impact on the judges of the lower courts. Ever since the TSJ was politically taken over in 2004, judges have been cautious of handing out judgments that may upset the government. However, whilst previously they were afraid of losing their jobs, now they are fearful of prosecution for simply following the letter of the law. Nobody wants to lose their job or to be arrested.”
Venezuelan jurist Pedro Nikken argues that the “surrender of independence” by the Court was confirmed in a speech given by magistrate Fernando Vegas Torrealba during the opening of the judicial year on February 5th, 2011. In his speech, Vegas pointed out: “The Venezuelan judicial power has a duty to contribute, within its area of competence, to the effective implementation of state policies created by the national government”; it should carry out “a deliberate and planned line of action conducive to a Bolivarian and democratic socialism (…) This TSJ and the rest of the courts must rigorously implement the law in order to penalize behaviors or redirect causes aimed against the construction of Bolivarian Socialism.”
Honduras, Ecuador and Nicaragua also have unreliable justice systems.
According to Nikken and HRW, the turning point came when judge Afiuni was deprived of her freedom. “This had a devastating effect on the judiciary”, he says. Nicaragua is another country where a president can sleep peacefully, in the assurance that the Supreme Court will not dish out any unpleasant surprises. In 2011, the Constitutional Court declared that Article 47 of the Constitution was inapplicable, thus preventing the possibility of a third presidential period. Daniel Ortega, however, reformed the Constitution and in January Parliament passed a law allowing indefinite re-election.
In Ecuador, President Rafael Correa drove a judiciary reform in 2011, which was endorsed by a referendum. Ever since, neither the National Court of Justice nor the Constitutional Court have ruled against any of Correa’s measures. In 2013, 165 judges were dismissed, 214 sanctioned, 60 suspended and 17 fined by the Council of the Judiciary, which is mostly made up of ex-government officials. “Judges currently are militants of the party in government. If anyone steps out of line, they are dismissed by the Council of the Judiciary,” says Ramiro Aguilar, a lawyer and independent member of the Assembly.
José Miguel Vivanco thinks that the government of Ecuador has used the judicial power to “gag” independent media. A key element allowing this has been the fact that the Council of the Judiciary is “made up of Correa’s ex-officials.”
In Honduras, journalist Thelma Mejía recalls the dismissal, after the 2009 coup, of four of the five magistrates of the Constitutional Court for issuing rulings against the interests of the executive. In a 2013 poll, the Supreme Court was considered as one the worst valued institutions in that country.
Information by Magdalena Martínez (Uruguay), Elizabeth Reyes L. (Colombia), Salvador Camarena (Mexico), Carlos Salinas (Nicaragua) Mabel Azcui (Bolivia), José Meléndez (Costa Rica) and Soraya Constante (Ecuador).
Original source: Peregil, Pedro. “La justicia de Venezuela destaca entre las más sumisas de América.” El País Internacional. April 7, 2014. El País. April 14, 2014.
Main photograph: C. G. RAWLINS (REUTERS)
Translated by #infoVnzla