First direct hard blow at judicial independence in Venezuela
Which happens to follow many indirect blows and a new highly criticized law

Tuesday 22, June 2004

I have written on the impending dismissal of the judicial independence in Venezuela (not that it ever was that great anyway) through the new law passed illegally in the National Assembly. Then a few days ago the Human Rights Watch, HRW, came out with a report demonstrating that no one overseas was fooled by the legal pretensions of the chavista regime in trying to pack the Venezuelan High Court. Of course chavismo screamed bloody murder but did not address the issues proposed by the HRW report, resorting to the easy way out of branding HRW a lackey of the United States Empire.

There was a curious bit from Greg Wilpert, in the Internet world which is of interest for the readers of this blog. Wilpert disserted lengthily in Venezuelanalysis trying to validate the chavismo claim of HRW submission. He should have known better and dodge the issue as his English is good enough to be able to detect on the home page of HRW three reports on the US abuses. But I suppose that ignoring such things is valid in the war of words that we are living. I did not plan to even read that article completely until today. For example vcrisis has been calling up on the credibility of many of these pro Chavez sites. Or Alex Beech has been writing on the judicial topic. But considering Alek and Alex reports and what happened today in Venezuela I went back and read the whole thing of Wilpert. But before I go into the judicial "surprise" of today, let me comment on Wilpert's report, not that I single him out, just because he is a main defensor of chavismo, in English.

To begin with, I could easily demolish many of his arguments. But I much prefer to quote some of his words:

So, instead of criticizing the government for endangering the independence of state powers, HRW should be congratulating Venezuela for having just about the only constitution in the world where the public prosecutor’s office is a wholly independent position.

Certainly claiming that Isaias Rodriguez is a "wholly independent prosecutor" is either a lie or a revelation of Wilpert lack of understanding of the Venezuelan situation. This is the prosecutor that has yet to pursue efficiently a single important case of corruption in Venezuela, or to shed some real light on April 2002 events. But this is not all.

While it is quite justifiable that an appointment should be “nullified” if it was obtained under false pretenses—this is nothing unusual in the world of labor law—it is much less plausible for the other two cases, where an actual trial ought to be held. No matter which way one looks at this issue, this section of the law does indeed undermine the court’s independence. It makes the court dependent upon a simple majority in the National Assembly. For the sake of preserving judicial independence it would make more sense if such cases were dealt with via an impeachment procedure, which requires a two-thirds vote of the legislature to be successful.

This rather "naïve" text (?) is quite telling. The whole point, that the National Assembly can modify at will the composition of the Venezuelan Supreme court is placed late and somehow diminished by this position. But Wilpert's subconscious betrays him. He knows that this is the crux of the matter. But he quickly recovers to end right there with this gem, the one always used by chavismo to justify all of its improprieties since April 2002:

For example, during the 2002 coup attempt HRW issued a statement on April 12, the day that “transition president” Pedro Carmona issued his decree in which he dissolved the constitution, the legislature, the courts, and just about all other state entities and named himself president. That day HRW merely appealed to the “transition authorities” to behave themselves, but did nothing to condemn the wholesale dissolution of all constitutional guarantees; nor did they demand from the international community to apply the OAS Democratic Charter to isolate Venezuela diplomatically.

The decree that dissolved all the constitutional set up of Venezuela was read around 5 PM. I heard it live on April 12. What time was the HRW statement issued Mr. Wilpert? Before or after 5 PM?

But it really does not matter much. Today's events blew up any intellectual pretense of Mr. Wilpert and all apologists of the new Judicial Power Law of Venezuela.

Justice Arrieche was dismissed today by the Constitutional Court of the Venezuelan High Court. The official reason is that supposedly he lied when he submitted his credentials to reach the exalted position, in the nomination process of 2000-2001. The real reason is that he was the leader in the High Court ruling of August 2002 that stated that there had not been a "coup" in April 2002, at least not in the way that Chavez would like the world to believe. Since then Arrieche has been the target number 1 in the High Court, vilified by chavismo as few figures have been.

Which are the real facts? Well, one day we might know the absolute truth but right now I can venture my own version. Likely, Arrieche and many of the present 20 justices, including the actual Chairman Ivan Rincon, did not make it to the court in 2000 in a clear and transparent way. Indeed, it was a set up already loudly denounced by the opposition then, in particular by Primero Justicia. I would agree that ALL justices should go again through a constitutional procedure to justify their present tenure as all of them had their initial nomination tainted. Unfortunately in those halcyon days when Chavez held a 2/3 majority it was easy to make "deals" and pack the court in a way that then was deemed favorable to the future of chavismo. But times have changed. Now we have a cornered administration, who in addition wonders what would happen to them when corruption will again be investigated in Venezuela. An absolutely safe High Court is essential.

Meanwhile Justice Arrieche has not faded and went boldly to claim article 350 of the constitution that justifies civil disobedience in front of arbitrary and unconstitutional actions (in English). He says that he will not leave his office. Thus a new constitutional crisis has erupted today. What will the other 19 Justices do? Will they padlock Arrieche's office? Will they gather together and fight it out? Will they annul the new High Court Law (doubtful as with this unfortunate decision the Constitutional Court has demonstrated its complacency with chavismo final aims)?

Of course today's problem is the way Justice Arrieche is booted, not whether he deserves to be booted. The first, and some would say the final observation, is that the new Judicial Power law is APPLIED RETROACTIVELY in a punitive way, going against all precedents, and likely against the wishes of the 1999 constitution. Not to mention international canons where laws are retroactive only when they INCREASE benefits! In a future change of regime it would be very easy to destitute the Justices of the Constitutional Court as they seem to clearly violate the constitution that supposedly they are defending. Who that lives by the sword…

Meanwhile, there goes the separation of powers in Venezuela. The most surprised must be the HRW guys by the speed at which the facts have validated their report.