Court-Packing in Venezuela

By JOANNE MARINER

Monday, Jun. 21, 2004

In this country, decades ago, President Franklin D. Roosevelt once tried to remake the U.S. Supreme Court. Frustrated by court rulings that had struck down progressive social legislation, FDR proposed a bill that would have allowed him to name six new justices to the Court.

FDR's plan failed and his court-packing strategy was discredited. Although U.S. presidents subsequent to him have disagreed strongly with some of the Supreme Court's rulings, their ability to capture seats on the Court is limited. Rather than reconfiguring the Court in one fell swoop, they must proceed member by member, as justices die or leave voluntarily.

Yet, in practice if not in principle, the court-packing model survives. Especially in Latin America, a region whose judiciaries have historically been vulnerable to political pressure, heads of state have frequently tried - and succeeded - in remaking their country's top courts.

In the 1990s, the leading examples of this problem were Carlos Menem's Argentina and Alberto Fujimori's Peru. This year, it is Venezuela where judicial independence is under threat.

The Central Role of the Venezuelan Supreme Court in Settling Political Controversies

With an upcoming referendum on whether he should be recalled from office, Venezuelan President Hugo Chavez is in serious political difficulty. It will ultimately be the Venezuelan Supreme Court that decides any controversies stemming from the upcoming referendum, questions that could directly shape Chavez's political future.

It is the Court, for example, that recently ruled that if Chavez were to be ousted in the referendum, he could run again in the regularly scheduled presidential elections of 2006. But one question the Court has yet to decide is whether Chavez, if he loses the referendum, could run as a candidate in the interim elections that result. And this issue - whether Chavez could lose the referendum, yet run again and possibly remain in power - is enormously contested.

President Chavez's supporters, it should be noted, view the Venezuelan Supreme Court as a bastion of the political opposition. They cite, as proof of the Court's hostility to Chavez, an August 2002 ruling by the Court that cleared four military officers accused of taking part in a 2002 coup against Chavez. They also point out that the entire Venezuelan judiciary has been plagued for years by influence-peddling, political interference, and corruption.

Venezuela's New Court-Packing Law

The Venezuelan courts indeed require reform. But rather than take steps to strengthen judicial independence and protect the courts from political meddling, Chávez's allies have moved to rig the system to favor their own interests.

Last month, the pro-Chavez majority in the National Assembly took action to dramatically shift the Supreme Court's political balance. Under the terms of a new law, the Court will expand from twenty to thirty-two members, giving the Assembly's slim governing coalition the power to obtain an overwhelming majority of the Court's seats.

Under another provision of the new law, the National Assembly gave itself the power to "nullify" the appointments of justices who are already on the Court, using extremely subjective criteria. If, for example, a majority of the Assembly concludes that a justice's "public attitude . . . undermines the majesty or prestige of the Supreme Court," or of any of its members, that justice can be stripped of his or her post.

Not only does this new provision violate basic protections of judicial independence, it is also clearly inconsistent with Venezuela's own constitution. Its wording - "nullification" of an appointment, as opposed to impeachment of a justice -- cannot disguise the fact that the provision violates the constitutional requirement that justices be removed only via a two-thirds' majority vote of the National Assembly.

The net effect of the new law is, in short, to hand over control over the Supreme Court's composition to the National Assembly. With the Assembly now enjoying the power both to pack and purge the Court, the threat to judicial independence is clear.

Already, last week, pro-Chavez legislators have begun taking action under the law, voting to remove one justice from the Court and to initiate proceedings against others. The targets, unsurprisingly, were justices perceived as hostile to Chavez and his views.

"A Dangerous Precedent for the Future"

It was sixty-seven years ago this month that the Judiciary Committee of the U.S. Senate issued its scathing report on FDR's court-packing plan. The committee's report, made public on June 14, branded FDR's proposal "a needless, futile and utterly dangerous abandonment of constitutional principle . . . . [that] would subjugate the courts to the will of Congress and the President and thereby destroy the independence of the judiciary."

The court-packing plan, the report concluded, "violates all precedents in the history of our Government and would in itself be a dangerous precedent for the future."

Venezuela's court-packing plan is, unfortunately, far from unprecedented. But even though it follows a model found, most recently, in Argentina and Peru, it is still short-sighted, ill-conceived, and distressing.


Joanne Mariner is a lawyer with Human Rights Watch in New York. Her piece is based on Human Rights Watch's just-released report, Rigging the Rule of Law: Judicial Independence under Siege in Venezuela.

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