JUDICIAL INDEPENDENCE THREATENED IN VENEZUELA: THE REMOVAL OF VENEZUELAN JUDGES AND THE...

I. INTRODUCTION

"The court simply committed suicide to avoid being assassinated. But the result is the same. It is dead."

-Cecilia Sosa G?mel,

Former President of the Supreme Court of Venezuela

Venezuela is currently embroiled in a struggle to combat judicial corruption in

an era of political and legal reform under the leadership of controversial President Hugo Ch?vez. The country has implemented dramatic reforms aimed to advance the integrity and effectiveness of the courts through the promotion of judicial independence. Judges' insulation from pressure from outside sources, including private interests and the government, is central to the success of the rule of law. Critics, however, charge that the reforms in Venezuela have undermined the ability of judges to remain independent from the political branches of government. While President Ch?vez and his supporters champion the reforms as rooting out corruption in the judicial system, opponents claim that the widespread removal of hundreds of judges is evidence of government intimidation designed to achieve favorable rulings. The current debate in Venezuela is dramatically polarized between groups that see the judiciary as "dead," a mere instrument of the country's dominant political forces, and groups that praise the government's innovative efforts to eradicate corruption.

This Article examines rule of law reform and judicial independence in Venezuela, focusing in particular on the numerous removals of judges from all levels of the judiciary. To begin, I will examine the political background of Venezuela under President Ch?vez. I will then review the concept of rule of law reform and the importance of a strong, independent judiciary in modern democracy. Third, I will look at international standards for judicial independence to see what role or influence international institutions have in Venezuelan reform. Finally, I will examine Venezuelan domestic law to analyze whether the procedures and justifications for the removal of judges are properly followed or whether critics' claims of rampant politicization of the judiciary are accurate.

The central inquiry surrounding Venezuela's judicial reform is whether the modifications are a good faith effort to bolster the rule of law and eliminate corruption or an underhanded attempt by the current administration to procure more political power and control.

II. BACKGROUND

Venezuela is currently experiencing a tremendous amount of change. President Hugo Ch?vez Fr?as has implemented scores of reforms across the board in order to reduce the economic disparity between the wealthy and poor in this oil-rich country.2 However, while President Ch?vez has successfully prevailed in several elections, survived a coup attempt in 2002, and defeated a referendum aimed to remove him from office, his populist reforms have not been well received by everyone in Venezuela. Critics maintain that in order to execute his dramatic reorganization of Venezuelan society, Ch?vez has become a constitutional dictator acting under the pretext of social progress.3

Hugo Ch?vez was elected President in 1998, after serving jail time for a coup attempt in 1992. He left prison a hero to the poor and disenfranchised of Venezuela and early in his presidency enjoyed approval ratings of over 80 percent.4 While President Ch?vez's economic reforms were not dramatically different from the free market changes that occurred across Latin America, Ch?vez's rhetoric made the middle class fearful that he would reduce protection for private property.5 In addition to pursuing his new economic agenda, Ch?vez also challenged the established political tradition. Ch?vez refers to his political agenda in revolutionary terms, a challenge to the power of the entrenched elite.6 In 1999, Ch?vez successfully ushered in the ratification of a new constitution and the country was renamed the Bolivarian Republic of Venezuela, reflecting the President's admiration of the Latin American revolutionary, Simon Bolivar.7

Among Ch?vez's controversial reforms has been the overhaul of the Venezuelan judicial system, which was part of the new constitution. In order to eliminate the "cancer of corruption"8 in the Venezuelan judiciary, to date over 300 judges have been dismissed or suspended.9 Judges have been removed for charges ranging from failures to process claims quickly enough to accusations of taking bribes.10 Those who oppose Ch?vez, however, suggest that corruption is only part of the reason the President has targeted the judiciary and that the charges against judges are only a pretext to eliminate those who have made decisions that are unpopular with the government. To them, his goal is to place political sympathizers on the bench so as to eliminate challenges to controversial legislation, to protect Ch?vez supporters that face prosecution, and to punish the opposition, especially those involved in the 2002 coup attempt to remove Ch?vez from office. The removal of the vice-president of the Supreme Court, Franklin Arrieche, highlights this discord between President Ch?vez's supporters and opponents. Arrieche refused to step down in June 2004 after a simple majority of the National Assembly, as opposed to a two-thirds majority as was previously required, voted to remove him from the court.11 Arrieche, a critic of Ch?vez, called his removal an effort to undermine the autonomy of the High Court and a violation of democratic rights.12

A cursory examination of the situation in Venezuela reveals nothing remarkable about its judicial process. It is short-sighted to expect that the judiciary be completely void of any political inspiration. In the United States, for example, President George W. Bush nominated Judge Samuel Alito for a position on the Supreme Court despite critics' claims that the President was catering to his conservative supporters.13 While there may be disagreement surrounding a judicial nomination in the United States, the President is not prohibited from nominating judges that share his political perspective. Critics allege that what is more controversial in Venezuela is not the appointment of judges that are politically aligned with Ch?vez, but the removal of judges who are not supporters of the President. In contrast to the United States, where the Supreme Court justices remain on the bench regardless of changes in executive partisan politics, judges in Venezuela purportedly are removed for not following the dominant political agenda so that they may be replaced with more appealing candidates. The debate between President Ch?vez and his opponents presents the question: Is the removal of so many judges a function of eliminating corruption, or is it an effort by the government to intimidate and control the judiciary?

III. RULE OF LAW REFORM

The generally accepted definition of the rule of law states that government should respect the laws of a nation and recognize the decisions of the judiciary.14 Adherence to the rule of law also requires equality before the law, indicating that the judiciary should not be for sale or easily manipulated by the government.15

Overall, Latin America has made great strides in recent history, overcoming the military regimes of the 1980s and embracing democracy and the rule of law.16 However, Latin America still maintains the remnants of its authoritarian past, and the institutions and culture of the region have not caught up to the ideals of the modern political environment. Institutions are "overly politicized, centralized, and bureaucratized," making reform a struggle.17 One of the major goals of Latin America reform efforts is to increase judicial independence in order to create more efficient, equitable, and transparent systems of justice.18

Judicial independence is not primarily for the benefit of an individual judge or the system as a whole; it is to protect the citizens from a miscarriage of justice.19 If judges are unable or unwilling to act according to the standards set forth by the law, the people can have no assurances that they are protected by the law or that there is any legitimacy to the laws. Furthermore, independence should not be assessed only on the basis of formal structures, but also on an examination of the actual behavior of the judiciary.20 Institutions are meaningless if they are frequently acuteumvented by political or private actors. For Venezuela, there are sufficient legal mechanisms to protect judicial independence. The issue is whether the Venezuelan government and culture respect and follow those procedures.

Reform of the judicial system must both hold judges accountable and allow them to act independent of various pressures from the government, colleagues, the public, and private business interests.21 Judges ought to be able to give an explanation for their decisions within the framework of the law, which would be an indication that they are not making an arbitrary ruling based on a personal agenda. Even subtle or indirect undue influence on a judge compromises the integrity of the judiciary. Furthermore, simply because a judge is not told specifically how to rule in every decision does not mean that his actions are independent. The judges appointed by former Peruvian President Alberto Fujimori are a powerful example of a subtle interruption of judicial independence. Under Fujimori, the judges acted according to the President's particular political agenda, eliminating an independent decision-making process.22 Reform efforts must address situations even where outside actors are not ordering a certain verdict, but rather setting a broad policy to direct judicial decisions in order to prevent a situation similar to that in Peru. Not only must a judge be independent of political considerations of the government, but also of direct outside pressures from private actors. Decisions should come from a judge interpreting the law, not from interested parties manipulating the system in their favor. Unfortunately, from Brazil to Bolivia, the judiciary is regularly subject to intrusion by parties seeking a favorable ruling.23

The removal of judges from the bench implicates the idea that a judge must be free from undue influence from the government. While there ought to be a method for evaluating the performance of judges, they cannot fear removal for making unpopular decisions. The ideal situation for the removal of a judge is for cause through a process that is transparent and that allows a judge an opportunity to defend himself.

The particular difficulty of the reform process is that the government bodies that benefit from a weak judiciary are also those who are often empowered to make judicial reforms. In the case of Venezuela, President Ch?vez executed constitutional reforms that laid a foundation for more interference by the executive and the legislature in the judiciary, despite the appearance of greater judicial independence. As Thomas Carothers argues, "The primary obstacles to such reform are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law."24 Therefore, Venezuela's greatest challenge is not the creation of sound legal procedures but rather controlling the political actors who manipulate the law.

IV. INTERNATIONAL LAW AND JUDICIAL INDEPENDENCE IN VENEZUELA

There are several sources of international law that demand judicial independence in order to protect human rights and advance democratic values. Venezuela is a member of both the United Nations (UN) and of the Organization of American States (OAS). Both of these bodies have drafted standards for judicial independence and specified proper procedures and grounds for removing judges from the bench.25 These standards are particularly relevant because under the new Venezuelan Constitution international human rights treaties and agreements ratified by Venezuela have the same legal standing as the constitution.26 These international agreements are immediately incorporated into domestic law and can be applied by courts and other government bodies.27 Thus, grounds to protect judicial independence are in both domestic law and international law, suggesting any challenge of transgressions by the Venezuelan government should have a basis in some source of law. I will discuss the relationship between international and domestic law in Venezuela and each of these international agreements in turn below.

A. International Law and Venezuelan Domestic Law

Article 23 of the Venezuelan Constitution in part states: "The treaties, pacts and conventions relating to human rights which have been executed and ratified by Venezuela have a constitutional rank, and prevail over internal legislation . . . and shall be immediately and directly applied by the courts and other organs of the Public Power."28 The plain language of the article suggests that international law is self-executing in Venezuela and does not require complementary domestic legislation to take force. Thus, it appears that international agreements may create new rights and obligations in the country.

However, several cases from the Venezuela Supreme Court indicate that the language of the constitution is not to be interpreted in such a broad manner as to create new causes of action or remedies for the violation of principles outlined in international agreements. In one instance, a defendant sought relief based on the Pact of San Jose, Costa Rica.29 The court clarified that while the substance of an international agreement is incorporated into Venezuelan law, international agreements do not direct the procedural mechanisms or remedies available within the country.30 That is, Venezuela legally recognizes the ideas expressed in international agreements, but the agreements do not regulate how Venezuela comes into compliance with international initiatives. The court claimed anything more than recognition would be a forfeiture of national sovereignty and the national law will control any claims based on international accords.31 The court stressed that the constitution is the supreme law of the land, not international agreements.32 Consequently, international law is not completely self-executing in Venezuela and domestic laws are required for a person to achieve any remedy based on international agreements.

In another opinion, the court also spoke forcefully about the inability of international organizations to limit the judiciary's power. The court stated, "The Venezuelan Judicial Power is an autonomous power and does not depend on any international organism . . . and does not recognize that any international organism can judge it."33 Accordingly, despite the expansive language of the Venezuela Constitution, the Supreme Court has found that international agreements serve a more symbolic role. They create rights that have the status of constitutional rights, but they require domestic legislation to be enforced.

B. The United Nations

The UN Office of the High Commissioner for Human Rights (OHCHR) articulated guidelines for judicial independence in the 1985 Basic Principles on the Independence of the Judiciary ("Basic Principles). The OHCHR states that an independent judiciary is necessary to encourage respect for human rights and fundamental freedoms.34 While this document does not bind the parties, it does show that the international community is in accordance with certain judicial standards.35 A significant failure of this discretionary approach, however, is that while many Latin American countries articulate a dedication to an independent judiciary, very few make serious efforts to achieve the ends discussed by the United Nations.36 Venezuela is not alone in its struggle to reduce improper influence of the judiciary.

The Basic Principles require first that nations have constitutional provisions that guarantee judicial independence.37 As I discuss in more detail later in this paper, Venezuela's constitution does specifically establish an independent judiciary.38 Several provisions in the constitution go further and set up separate bodies to oversee the judiciary as well.39 The Basic Principles also demand that there not be unwarranted interference with the judicial process or revision of judicial decisions. That is, once a judgment is reached, it is not to be altered by political authorities.40

In terms of the selection of judges, the Basic Principles state, "Any method of judicial selection shall safeguard against judicial appointments for improper motives."41 There have consistently been claims that courts in Latin America are filled with judges who will guarantee favorable decisions for the executive or ruling party. For example, after the 1989 election of Argentinean President Carlos Menem, a Senate controlled by his Peronist Party passed a bill that allowed him to select four new judges loyal to the party for the Supreme Court.42 Peru's President Fujimori resorted to similar behavior; he dissolved Congress, suspended the constitution, and replaced judges on the Supreme Court with loyalists.43 Across Latin America there has been a general failure by governments to remain outside of the judicial realm.

The United Nations also advocates that the terms of the judges once on the bench be secured by law. Unfortunately, in Latin America judicial terms are often uncertain. In many countries, judges are provisional and their appointments can be terminated at any time, giving judges incentive to rule in a manner favorable to the current government in order to have their term extended or to be appointed to a more secure post. Lifetime appointments, while often mentioned as a goal of Latin American reform, remain the exception rather than the norm.44

Finally, the Basic Principles outline minimum standards for the removal of a judge from the bench. Complaints against a judge must be handled expeditiously and according to the proper procedures.45 A judge that faces removal still has a right to due process of law and should have the opportunity to defend himself against any charges in a timely manner. Without due process protections a judge is always subject to threats of removal with little chance for exoneration. The Executive Director of the Rule of Law Foundation explains, "In the Dominican Republic, [for example,] the new Supreme Court's eagerness in disciplinary matters and a lack of regulations for judicial inspections led to automatic suspensions of judges accused of corruption without any due process guarantees, raising concerns about the balance between independence and discipline."46 On this measure it appears that Latin America has not yet achieved the ideals established by the international community.

Most significant for this Article, the United Nations requires that "[j]udges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties."47 Even if the proper procedural mechanisms are used, the reasons for removing judges must be based in a legal framework and not subject to arbitrary abuse by those with political power. For example, in Argentina many of the judges that have been removed through the impeachment process maintain that their removal is politically motivated and not based on improprieties in interpreting the law.48 Similarly, critics of Venezuelan judicial reform believe that the driving force behind the removal of hundreds of judges is President Ch?vez's political aspirations.

In addition to its ratification of the Basic Principles, Venezuela also hosted the 1989 Caracas Conference, held under the auspices of the United Nations, to discuss the independence of judges and lawyers.49 Those at the conference agreed that "an independent judiciary was the firmest guarantee of the Rule of Law and the protection of human rights."50 The attendees also agreed the judiciary should be able to review the activities of the executive, the police and the military.51 Venezuela's central role in this conference implies a government obligation to respect the rule of law and judicial independence. Furthermore, Venezuela has at least shown a willingness to submit to international review and scrutiny.

The current situation in Venezuela shows a lack of acceptance of international standards in the legal system. Despite the incorporation of the Basic Principles into domestic law, claimants have not pursued their legal action in local forums. Those who seek justice according to international law have been required to take their cases to international courts rather than rely on the courts of Venezuela to hear their grievances.52 Despite rhetoric by the Venezuelan government, there has been no obvious invocation of the rights supported by the United Nations in a domestic setting. Venezuela appears similar to its Latin American neighbors, acknowledging the ideals of international agreements but failing to implement the Basic Principles in a meaningful way.

C. Organization of American States

In addition to its participation with the United Nations, Venezuela is a member of the OAS and party to the Inter-American Democratic Charter and the American Convention of Human Rights. Both documents stress the importance of a vital democratic system of government and affirm the common viewpoints of the regional governments regarding human rights.

The Inter-American Democratic Charter states, "The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it."53 Furthermore, "[e]ssential elements of representative democracy include . . . the separation of powers and independence of the branches of government."54 While the OAS has remained involved in Venezuela following political turmoil under Ch?vez's leadership in order to promote the development of a vigorous and legitimate democracy in accordance with the InterAmerican Democratic Charter,55 a 2003 OAS report indicates that Venezuela's judicial reforms have not been for the better.56 The separation of powers in Venezuela is vulnerable as other branches of government are limiting the authority of the judiciary.

In April 2005, three judges, Ana Maria Ruggeri Cova, Perkins Rocha Contreras, and Juan Carlos Apitz Barbera, filed a complaint with the Inter-American Commission on Human Rights (IACHR). They claimed that the Venezuelan State (hereinafter the State) violated Articles 8,57 23,58 24,59 25,60 and 29(c)61 of the American Convention on Human Rights when it removed the judges from their positions.62 According to the judges, they were removed from the bench because they ruled against the government on several occasions, which caused problems for the executive and legislative branches. Among the controversial rulings was the decision to suspend a program of Cuban doctors as part of President Ch?vez's "Barrio Adentro" project to provide medical assistance to low-income neighborhoods.63 The Venezuelan Medical Federation objected to the program, arguing that unqualified Cuban doctors were practicing medicine and taking jobs from local Venezuelan doctors.64 The judges agreed and required that Cuban doctors be replaced with qualified Venezuelan doctors that wanted to participate in the program.65 The decision was problematic because of the close relationship between President Ch?vez and Cuban leader Fidel Castro,66 who in part received oil and money in exchange for the doctors' medical services.67

To support their claims further, the complaining judges note that the dissenting judges that favored the government program were not removed, but instead were permitted to retire with benefits.68 The State claims that the judges were removed for having committed a "serious inexcusable error." The specifics of the reason behind the charge were not included in the report. Furthermore, the State argues that the judges had an opportunity to present their defense in front of the Inspectorate General of Courts.69

The IACHR is not designated to adjudicate claims based on alleged violations of the American Convention of Human Rights, but rather to determine whether there are sufficient grounds to send the case to the Inter-American Court.70 The IACHR in this case determined that there was valid legal claim of relief for every charge to go forward except for the equal protection claim under Article 24.71

While this controversy still awaits a final resolution, it highlights the nature of the conflict over judicial reforms and the arguments on both sides. Judges that have been removed claim there were political motivations for their removal, while the Venezuelan government declares that the reason behind the judges' suspensions was their poor performance. Despite the OAS oversight and support of Venezuela's reforms, significant difficulties in maintaining judicial independence exist. The conflict remains remarkably polarized and a ruling by the Inter-American Court will provide valuable insight into the state of the law in Venezuela and shed light on which side has the stronger arguments. A ruling in favor of the Venezuelan government might show that the opposition is overreacting in its criticisms of President Ch?vez and his reforms. However, a ruling for the judges would solidify claims that the rule of law is under serious threat in Venezuela.

A ruling for the judges raises the possibility of a much more controversial role for the OAS: potentially pursuing collective action among member states to remedy the situation in Venezuela. Article 18 of the Inter-American Democratic Charter authorizes an active response by the OAS to respond to threats against democracy in the region.72 An active response however, is no simple task. While organizations such as Human Rights Watch have implored the OAS to consider a more proactive approach to the conflict in Venezuela, the politics of the international system indicate that any intervention would be infinitely complicated.73 Notably, Venezuela continues to clash with a powerful OAS member, the United States of America.74 The United States wavered in its commitment to democracy in Venezuela when it supported the opposition's demands for early presidential elections in 2002 and then supported the temporary government that claimed power following the 2002 coup.75 An intervention in Venezuela might draw criticism that the United States is manipulating the OAS in order to encourage a regime change friendly to American interests, rather than an interest in advancing democracy.76 For an action of the OAS to be seen as legitimate, the suggestion of any interests besides the protection of democracy must be eliminated. The current state of affairs implies that this may not be possible.

Ultimately, the role of the international community might be most effective if the OAS maintains its role as monitor of the conditions in Venezuela. If the IACHR is open to hearings against the Venezuelan government's removal of judges and other irregularities, perhaps international pressure could promote changes that satisfy the goals of judicial reform while minimizing allegations of government impropriety.

V. VENEZUELA'S DOMESTIC LAW REGULATING THE JUDICIARY

As part of his reorganization of the Bolivarian Republic of Venezuela, President Ch?vez opted to redraft the entire constitution rather than amend the existing one, a measure that critics favoring more gradual reforms found unnecessary.77 Despite the controversial move, there were legitimate reasons for the reforms and the judiciary in particular was in need of a transformation. The existence of corruption in Latin American judicial systems is generally recognized by scholars and experts in the region,78 and Venezuela is no exception. Not only has its judiciary historically been beholden to the political powers, but modern times have also seen a rise in bribery of judges by private parties.79 One dramatic example is a judge who threw money out of her window and onto the street below when the police entered her office to arrest her for accepting a bribe.80 The judicial reforms were initially seen as a response to the corruption in the system; judges were overworked, poorly trained, and there was no viable system to review the quality of their work. The situation was ripe for corruption and initially reforms were greeted with a certain amount of optimism and trust in the Ch?vez regime.81

A. Constitutional Reform

One lasting effort of reform was the 1999 rewriting of the Venezuelan Constitution. In April 1999, the Venezuelan electorate supported the selection of the Constituent Assembly to redraft the constitution.82 Later that year, a referendum to approve the new constitution was put before the nation.83 The new Venezuela Constitution purports to support all the goals addressed by rule of law reformers, including a commitment to democracy and a dedication to equality, justice and the rule of law.84 Of particular significance, the reform of the judicial branch appears to allow the judiciary a significant amount of independence from the other branches of government.

Article 254 of the constitution states, "The Judicial Power is independent and the Supreme Tribunal of Justice will enjoy autonomy in its function, finance and administration." Furthermore, Article 255 establishes that the selection of judges will be the role of the Supreme Tribunal of Justice.85 The creation of the Tribunal seems to remove political control over the judiciary and allow for a greater level of independence. In addition, judges may only be removed according to the processes established by the law. This suggests that arbitrary removal from the bench is restricted, permitting judges to rule without fear of reprisal for unpopular decisions.

The process for removal, set out in Article 267, requires a high level of transparency and an adherence to the rule of law. Disciplinary action is based on the Ethical Code of the Venezuelan Judge.86 Moreover, the hearings are to be oral and public, signifying that it will be difficult for the government to remove a judge without convincing witnesses that there are legitimate reasons for the removal.87

The constitution attempts to remedy the claims that judges in Venezuela are subject to political influence by restricting their ability to participate in the political process. A United States Human Rights Country Report from 1995 described the Venezuelan judiciary as "legally independent, but the major political parties influence the judicial selection process as well as decisions in particular cases."88 Now judges are allowed to vote but are prohibited from any other public political pursuits.89 Beyond this constitutional measure to ensure political independence of the judiciary, there have been proposals to rotate judges so that they cannot develop strong relationships with local politicians who might hope to take advantage of their connections in the judiciary.90

The constitution also introduces safeguards for the Supreme Tribunal of Justice, the Venezuelan Supreme Court. According to Article 265, the magistrates cannot be removed without a two-thirds vote of a qualified majority of the National Assembly. Therefore, the Tribunal can, in theory, act in its capacity to select and remove judges, as well as generally supervise the judiciary without interference by the legislature. The constitution refers to removal due to "serious errors"; presumably, the Tribunal will not be subject to review except in the most egregious instances.

Despite these ostensibly positive steps towards judicial independence and the rule of law, human rights groups argue that the Venezuelan government has managed to politicize this new judiciary, notwithstanding the constitutional safeguards.91 Critics argue that the disparity between the institutions of the judiciary and what occurs in practice is a sign that the independence of the judiciary is superficial in many instances.92

B. Failure of Constitutional Mechanisms

The OAS stated in its 2003 report on judicial reform in Venezuela that "the failure of the Constitution to come fully into force creates a situation of judicial insecurity that makes it difficult to fully consolidate the rule of law."93 On its face, the new Venezuelan Constitution appears to offer extensive procedural protections for judges removed from the bench and to limit the involvement of other branches of the government in judicial decision-making processes. However, the constitution has not been the governing document in Venezuela's judicial reform because most judges enjoy only a provisional status. Furthermore, a decree by the National Constituent Assembly of a judicial emergency and the Law of the Supreme Tribunal of Venezuela have allowed greater politicization of the judiciary and leave judges much more vulnerable to outside pressures than before.

1. Lack of Secure Tenure

The Venezuela Constitution requires that the removal of a judge must be according to the rule of law.94 However, the vast majority of judges in Venezuela are provisional judges and are therefore afforded a lower degree of protection because they do not enjoy a secure tenure. Some reports claim that as many as 80 percent of the judges in Venezuela hold provisional or temporary positions.95 According to the OAS, in 2003, of the 1,772 judges in Venezuela only 183 were tenured.96 While this is not a new issue in Venezuela, the IACHR stated that "these problems have deepened and expanded since the present government embarked on a process of judicial restructuring."97 A high number of provisional judges undermines judicial independence and autonomy and creates a new avenue for judicial corruption.98

In some cases, temporaryjudges are not entitled to a hearing prior to their suspension. They may simply be informed they no longer have a position on the bench. For instance, three Caracas judges, Miguel Luna, Petra Jimen?z, and Mar?a Trastoy, were removed in March 2004. In an interview with Human Rights Watch, the Supreme Court President Iv?n Rinc?n Urdaneta explained that the Emergency Judicial Commission, the body charged with decidingjudicial suspensions, had decided to nullify their appointments. According to Rinc?n, they were temporary judges with short terms, and therefore they were not entided to the same procedural protections as permanent or provisional judges." The former president of the Supreme Court, Cecilia Sosa, stated that provisional judges were not "lesser judges" and disapproved of the fact that they did not enjoy the same protections or permanency in their positions, even if they performed their work in a satisfactory manner.100

The lack of secure tenures for judges portends significant difficulties for Venezuela. While stable employment is important for judges on a personal level, the results for the justice system are more significant because provisional judges do not further the rule of law. To begin with, if a judge suspects he will not remain on the bench for any significant period of time, he may rule in unethical ways to gain allies and secure subsequent employment in the private sector.101 This only exacerbates the traditional problems of corruption that Venezuela is trying to control. In addition, a system of untenured judges also leaves the door open for more politically-motivated misbehavior. Insecurity creates incentive for judges to act in a manner that pleases the current government in order to have their time extended or to be appointed to a more secure post. Indeed, claims have been made to the IACHR that certain judges have found their appointments revoked when they ruled against the government.102

Ultimately, provisional judges do not benefit from the legal protections that attempt to ensure the independence of their decisions.103 The constitutional regime does not apply to the majority of judges on the bench in Venezuela. These judges are subject to arbitrary removal and may be denied an opportunity to defend themselves. Furthermore, because they can be freely removed, provisional judges are more susceptible to both political and private pressures. The ultimate effect is that the independence of provisional judges is significantly destabilized, preventing them from making rulings based on the law rather than the desires of powerful outside actors.

2. Decree of a Judicial Emergency

The decree of a judicial emergency is an example of how judicial reform in Venezuela held great promise yet has been plagued by tremendous political manipulation. The National Constituent Assembly, the body in charge of drafting the new constitution, determined it was within its power to require a reorganization of the judicial system, and it created the Emergency Judicial Commission to undertake the task.104 In response to political, economic, and social conflict, the Commission aimed to create a judiciary that was transparent, impartial, autonomous, swift, and uncomplicated.105

One of the most prominent measures of the decree was the creation of authority to suspend a judge for charges of corruption.106 The goal was to subject all judges to a process of evaluation and remove those whose reputation was substandard to the judicial branch's values.107 Initially, this effort appeared to further the goals of establishing a trustworthy judiciary. Article 6 of the decree calls for the suspension of judges who face inquiries regarding corruption charges. The Commission further decided to suspend only those judges who had seven or more formal complaints against them, a limitation suggesting that judges with isolated complaints against them would not be subject to removal.108

However, closer inspection shows that aspects of the decree, beginning with the authority of the Commission, lend themselves to political manipulation. The Commission is not a body established by the constitution or any other domestic law. Instead, the Assembly determined that if it had the power to draft a constitution, then it must also have the unilateral power to carry out any tasks it felt necessary.109 The Commission's actions are essentially above the constitution, which indicates that the rights and due process protections created by the constitution do not apply to those people affected by the decree.110 The elimination of due process for judges is the first indication that the aspiration of advancingjudicial independence in Venezuela has been compromised. Despite the great strides made in the new constitution, actions against most judges fall outside of the constitutional safeguards.

The power of the Commission to remove judges based on charges of corruption allows for too many biased dismissals. According to several attorneys and scholars inside of Venezuela, a vast majority of the judges have been accused of some sort of corruption.111 The decree essentially allows the government, through the Commission, to target anyjudge it chooses, and to overlook other judges who rule in its favor. Admittedly, dismissing 100 percent of the judges with any complaints of corruption lodged against them would not achieve the goal of an effective, independentjudiciary either; however, the standard set by the Commission has been subject to abuse. While a general standard might allow for a more flexible response to inappropriate behavior, this system gives an appearance of politically motivated removals, which is completely contrary to rule of law principles. The failure to bring significant disciplinary action against judges that ruled in favor of the government, while other judges have had to fight their dismissals in front of the IACHR, suggests some merit to this argument.112

The Commission's ability to remove a judge for "inexcusable procedural delays" is also a cause for concern.113 Venezuela does not have enough judges to handle their caseloads in an efficient manner. For example, in 1994, with a population of over 22 million people, Venezuela had only 1,400 judges.114 This amounts to one judge for every 15,000 people. The United Nations recommends one judge for every 4,000 people.115 Delays are an inevitable result of the lack of personnel, and there is little a judge can do to resolve the number of cases more efficiently. On average, it takes 4.5 years to reach a verdict in a criminal trial.116 The combination of lengthy cases and removal for "inexcusable procedural delays" gives the government another tool to suspend those judges that it finds threatening, while disregarding judges that hand down favorable decisions, such as upholding the legality of new Ch?vez projects or punishing parties involved in the 2002 coup attempt. In effect, all judges are guilty of "inexcusable delays," but at this point there is no way they can insulate themselves from indiscriminate removal proceedings.

The decree of a judicial emergency has created a parallel set of laws that apply to judges without any of the due process safeguards provided for in the constitution. Furthermore, the standards for removing judges are vague; according to the decree, nearly 100 percent of the judges should be removed. Thus, for the Commission to begin its important work of reforming the judiciary, it may pick and chose who is removed. Unfortunately, there has been more protest that the removals are politically motivated than approval that the worst offenders have been removed from the bench.

3. Law of the Supreme Tribunal

In order to begin its reform efforts and declare the decree of a judicial emergency, the National Constituent Assembly had to secure approval from the Supreme Court. Following a vote of support of 8-to-6 for the Assembly's proposal, Chief Justice Cecilia Sosa G?mez resigned.117 These actions sparked a dramatic shift in the membership of the highest court in Venezuela. In addition to the decree of a judicial emergency, the National Assembly passed the lengthy Law of the Supreme Tribunal of Justice (hereinafter TSJ Law), which creates additional guidance for the administration of justice in Venezuela, specifically regulating the Supreme Court.118 While much of the law has not provoked criticism, three portions of the TSJ Law hint at political interference in the Supreme Court: 1) the increase in the number of members of the court; 2) the National Assembly's ability to name judges by a simple majority; and 3) the procedure and grounds for suspending judges.

a. Increase in the Number of Judges on the Supreme Court

The first controversial aspect of the TSJ Law has been the increase of number of judges on the Supreme Court from twenty to thirty-two.119 Proponents of the law claim that twenty judges were insufficient to manage the court's caseload.120 Because the entire court does not preside over every case, appointing more judges can in theory increase the court's capacity.121 The court is divided into six different chambers, reviewing different areas of the law such as constitutional law or civil law.122 The entire court may also hold a joint session called "Sala Plena."

Critics, however, claim that the increase in the membership of the court had nothing to do with expanding its capacity to hear cases. Instead, increasing the number of judges has allowed President Ch?vez to fill the court with supporters in order to overwhelm the opposition. The situation in Venezuela is reminiscent of the 1937 threat by U.S. President Franklin D. Roosevelt to "pack the Court" when the U.S. Supreme Court continually struck down his New Deal legislation.123 The Venezuelan Congress in November 2000 indicated that in order for someone to be appointed to the highest court, they should be identified with the "process."124 In other words, the candidate should be dedicated to the President's movement.125

In addition to seeking judicial decisions that preserve his revolutionary legislation, President Ch?vez has another reason to desire more followers on the Supreme Court: punishing those who attempted a coup. In April 2002, Ch?vez was temporarily removed from office and a brief power struggle ensued between the opposition and the military.126 Shortly thereafter, Ch?vez was back in office claiming that his opponents unconstitutionally attempted to remove him from office through a coup.127 Following the coup, the Supreme Court decided to dismiss charges against four military officers involved because it determined there was no coup, but rather a brief "power vacuum."128 President Ch?vez was furious with the decision, calling it "absurd and aberrant."129 Two and a half years later, the Constitutional Chamber of the Supreme Court reversed the ruling following a motion to nullify the decision, leaving the door open for new charges to be filed against the officers.130

Neither Ch?vez supporters nor his opponents can argue the moral high ground following this most recent Supreme Court decision. On the one hand, the international community denounces the undemocratic removal of a president from office as a violation of the rule of law.131 On the other hand, the original decision of the court finding that there was no coup may have been motivated by the judges' desire to express their condemnation of Ch?vez. At the time of the coup in Venezuela, the Supreme Court was evenly divided between Ch?vez supporters and those who disapproved of the controversial leader.132 Two judges had to recuse themselves from ruling on the original case, leading to a vote in favor of the opposition 11-9.133 It is possible that the first decision was politically motivated to allow those involved in the coup go free without punishment. According to Vice-President Jos? Vicente Rangel, the original decision "was a true assault on democratic legality, committed by a group of judges who proceeded to embarrassingly serve interests that were contrary to justice."134 In the end, the decision was reversed in part on the grounds that the recusal of the two judges was conducted improperly.135 The president of the court's Constitutional Chamber stated that the decision "was made following the verification of the grotesque violation of the constitutional principles and rights consecrated in the constitution."136 She accused the 2002 Supreme Court of acting according to their political beliefs rather than according to the law.

Ch?vez's opponents found the court's recent reversal of the contentious decision evidence that the Supreme Court is not directed by the law, but rather the political ambitions of its members that are loyal to the President. The inability to punish participants in the coup was politically detrimental to the Ch?vez government. With the court's latest decision, the Attorney General may now press charges against those involved in the coup.137

Notably, while the court was dominated by Ch?vez opponents, its ruling disfavored the President. Now that the court is filled with Ch?vez supporters, its judgment is much more advantageous for the government. While some may argue that the new court was merely rectifying improper decisions of the past, given the manipulation of the members of the court and the judicial system as a whole, the decision is not above suspicion.

Not only did the Constitutional Chamber reverse the 2002 Supreme Court decision, it also determined it had the right to review the decisions of any court, including decisions made in "Sala Plena" by the entire Supreme Court.138 Therefore, any case in the country that potentially implicates a constitutional right can ultimately be heard in front of this particular chamber of the court, a chamber which is considered to be full of Ch?vez supporters. The attorney for the military officials implicated in the coup has decided to pursue their case with the IACHR because he believes that all legitimate channels to justice have been compromised in Venezuela.139 The possibility that the government is manipulating the interpretation of the constitution through membership in the Supreme Court implies that the division of power in Venezuela is fragile and that the rule of law is on uncertain ground.

b. Judges Named by a Simple Majority

Article 8 of the TSJ Law requires a two-thirds majority of the National Assembly for a nominee to become a member of the Supreme Court. However, if a judge does not receive the sufficient number of votes, a vote may be held three additional times in order to achieve the necessary two-thirds super-majority vote. If in the end less than two-thirds of the National Assembly agree, the judge may still become a member of the court with a simple majority vote of the National Assembly.140 It is puzzling why the TSJ Law requires a two-thirds vote if this can be defeated as long as the vote for a controversial judge is held often enough. The repetition of the vote may allow more time to garner political support for a nominee. Critics challenge the ultimate requirement of a simple majority as undermining the initial requirement of the two-thirds vote.141 Because the majority may act as it pleases, the procedure denotes that the democratic process of selecting members of the Supreme Court is not of primary importance.

Supporters of the TSJ Law claim that the law is written with the simple majority requirement because of the close division of parties in the legislature. They argue it would be nearly impossible to gain the necessary votes for any nominee.142 In addition, in an international context it is not unusual to require only a simple majority. Members of the United States' Supreme Court for example, only need the support of a simple majority of the Senate.143 In the end, neither group has the stronger argument, and it seems there are political maneuverings on both sides. On the one hand, the law does not encourage the majority to seek support of the minority. On the other hand, to require a supermajority may deadlock any reform.

c. Suspension of Judges

Article 12 of the TSJ Law states that a judge may be removed from the Supreme Court by a two-thirds majority vote, as required by the constitution, for a variety of reasons that are seen as a breach of his responsibilities. However, two other mechanisms that do not require a two-thirds vote can effectively neutralize a judge: 1) suspension of the judge pending a hearing, and 2) invalidation of appointments to the court.

If a judge is accused of violating his duties to the court, outlined by Article 265 of the constitution and Article 12 of the TSJ Law, he is suspended from his position pending a hearing on the merits of the charges. Once a judge is suspended, the TSJ Law requires the hearing be held within ten days to determine the permanence of the removal.144 However, according to critics, this ten day period is regularly ignored and there is no clear action a judge can take if the ten day period is not respected.145 Although a judge may not be formally removed from his position, the result is the same because he cannot continue to serve on the bench. Thus, despite the absence of official grounds for permanent removal, some judges find themselves suspended indefinitely.

In addition, the National Assembly can nullify the appointment of judges by a simple majority if a judge gave false information prior to being selected for the court, if the judge acts in a manner that offends the prestige of the court or any of its members, or if the judge undermines the functioning of the court.146 The first appointment nullification was a Ch?vez opponent, Franklin Arrieche, who allegedly lied about his credentials.147 While removing a judge for providing false information to the National Assembly appears legitimate, the other two standards for nullifying judicial appointments are suspicious because of their subjective nature. What constitutes behavior that offends the prestige of the court or undermines the court's functioning is ambiguous, providing judges' enemies with broad grounds to demand their removal. Indeed, a member of Ch?vez's own party, Iris Valera, has commented that the law will permit the removal of judges that supported those involved in the coup.148 Valera made no attempt to claim the TSJ Law advances the rule of law or the integrity and independence of the judiciary. This suggests that reform efforts are in fact politically motivated and not good faith attempts to improve Venezuela's legal institutions. The constitutional safeguards are compromised by a parallel and overriding TSJ Law that permits political actors to dominate the judiciary.

VI. CONCLUSIONS

On the surface, Venezuela's reform advances the rule of law and judicial independence. The constitution demands judicial autonomy and sets up institutions to place the judiciary at arm's length from the executive and the legislature. The removal of judges requires open hearings, and in the case of members of the Supreme Court, a super-majority vote against a judge. Furthermore, Venezuela has signed on to various international agreements and repeatedly championed the value of an independent judiciary in democratic society.

The epidemic of judges being removed from the bench, however, reveals that the reality of the Venezuelan judiciary is far from an ideal system with a vigorous rule of law. International law has had a limited impact on Venezuela. While it must please OAS observers, there is litde other incentive for the Venezuelan government to protect the independence of its judges actively if their corruption serves a political purpose. Limited enforcement mechanisms of international agreements and the overt hostility between Venezuela and the United States suggest that a more active role for the OAS may face cries of U.S. imperialism.

Domestically, Venezuela has instituted a complex labyrinth of parallel, complementary and, at times, contradictory judicial laws. The decree of a judicial emergency and the TSJ Law are laws that are not subject to the due process protections of the constitution. The emergency decree in particular was written to serve as the "Constitution in force"149 while the judicial reform was implemented. However, it is yet to be seen when the era of judicial reform will end as judges continue to be removed from the bench, with several claiming the procedure violated due process and judicial independence.150 The TSJ Law has provisions that are in direct conflict with the constitution and allow the National Assembly to remove members of the Supreme Court with only a simple majority vote and not the two-thirds vote required by the constitution. The judicial laws diverge from the constitution in subtle ways, yet are sufficient to undermine the independence of the judiciary, allowing for more political manipulation.

In addition, the provisional nature of the vast majority of judges in Venezuela creates a situation where constitutional laws designed provide judges with procedural protections do not apply. There is limited recourse for these judges if they are arbitrarily removed from the bench because they held their positions at the will of the political powers. The combination of contradictory standards of due process and the limited rights of provisional judges make the judicial system vulnerable to outside pressures in order for judges to maintain their positions.

The lofty goals of the Venezuelan reform have been consistently undermined by politically motivated actions. The various mechanisms to remove judges with limited due process protections prevent judges from acting in a truly independent manner. Several high profile cases of Ch?vez opponents have been removed from the bench for their support of those involved in the 2002 coup attempt. This sends a message that judges who stray from the policies of Ch?vez's ruling party are risking their career. Judges cannot always rule on a case by interpreting the law, if that interpretation does not please the political majority.

The first step to improving judicial independence needs to be the phasing out of the era of judicial reform. In six years Venezuela has adopted a new constitution, a decree of judicial reform, and a new law governing the Supreme Court. Instead of continually revising and supplementing the laws governing the judiciary, Venezuela ought to fully implement the existing procedures and protections of the constitution. More judges need to have tenured positions so that the constitutional protections apply to them and they do not fear arbitrary removal. In addition, the ethical standard should be more specific in order to reduce their subjective nature. The definition of corruption needs more specific classifications because of its pervasiveness. If every judge cannot be removed, the reasons for choosing to remove one judge and not another need objective standards. All of these suggestions have the potential to increase the independence of the judiciary by creating more job security and placing more scrutiny on the reasons for removing a particular judge.

Ultimately, however, dramatic change and respect for the rule of law cannot take hold in Venezuela without a fundamental shift in the values of the society as a whole. The level of corruption in the judiciary means that no one is above moral reproach, and a judge challenging the government will likely appear hypocritical. Yet pressure must be exerted on the government to follow the constitution and to reduce the politicization of the judiciary. Leadership must put the values of society above personal ambitions. All of this will require time before Venezuela can leave behind an entrenched, inefficient judicial system. However, the rule of law ought not to be abandoned because of political discord in a country experimenting with controversial, and at times, revolutionary ideas.