Carlos Lusverti*

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On January 19, 2022, the Venezuelan National Assembly, whose members were  elected in the disputed elections of December 2020, adopted a new law that will affect  the Supreme Court (Tribunal Supremo de Justicia, TSJ). On its face, the law does not comply which international human rights standards on judicial independence. 

The Venezuelan Supreme Court is Venezuela’s highest judicial body, supervising the governance and administration of the judiciary. This supervision extends both to its judicial review function and its oversight of administrative matters, including budget and disciplinary controls. The new proposed law reduces the number of justices in the Supreme Court from 32 to 20 and changes the composition of the Judiciary Nomination Committee tasked with nomination of Supreme Court justices, so that there is a greater number of political members from Venezuela’s National Assembly. The law also renews the terms of all the current sitting justices, not only those who are about to finish their terms. Likewise, it also establishes that the National Assembly will appoint other administrative offices in the judiciary, such as the General Inspector of Courts and the Director of the National School of the Judiciary. 

The Reform in context

On June 21, 2021, just a few months after the courts and tribunals were reopened after being closed for  eight months due to COVID-19, President Maduro established a commission to implement radical reforms to the judiciary. At that time he stated: “Venezuela needs a revolution that shakes, stirs up and transforms the country’s entire justice system.”

This Commission, as it came to be composed, lacked independence from the Executive branch. The Commission was co-chaired by lawmakers Mr. Diosdado Cabello and Ms. Cilia Flores. Both are members of the ruling party, the United Socialist Party. Moreover, Ms. Flores is President Maduro’s wife and Mr. Cabello is the Vice President of the of the United Socialist Party. 

The decision came at a time when numerous international voices and authorities had called for a reform of the Venezuelan judiciary in order to bring it into compliance with international standards relating to the independence of the judiciary. In June, the Office of the High Commissioner for Human Rights reiterated its previous recommendation to Venezuela on the adoption of “reforms of the justice system announced by the Government in January 2020 to guarantee its independence, impartiality, transparency, accessibility and effectiveness”. Later in September, the International Fact-Finding Mission established by the UN Human Rights Council presented a report which concluded “that instead of providing protection to victims of human rights violations and crimes, the justice system has played a significant role in the State’s repression of Government opponents.” The Mission recommended that “the selection of justices of the Supreme Tribunal of Justice is carried out via a competitive process, in accordance with the requirements set out under the Constitution, including with respect to the formation of the Judicial Nominations Committee”. 

At the same time, in June, the International Commission of Jurists published a detailed report entitled Judges on the Tightrope, documenting the undermining of judicial independence in the country, due to the political control or influence on the judiciary. The report outlined the many structural and practical developments that define this politicization. 

Finally in November, the ICC Prosecutor confirmed the opening of an investigation into the Situation in Venezuela and signed a Memorandum of Understanding with the Government which states that Venezuela will “adopt all the necessary measures to ensure effective administration of justice, in accordance with international standards”.

Changes in the Judiciary Nomination Committee

According to article 270 of the Venezuelan Constitution, the Judiciary Nomination Committee (Comité de Postulaciones Judiciales) is an advisory body to the National Assembly for appointment the Supreme Court justices. Article 270 outlines  that the Committee should be formed by “representatives of the different sectors of society” in agreement with the  conditions set by law.

The previous regulation, which was in place between 2004 and 2022, established that the Committee be made up of five legislators and six civil society representatives. Article 6 of the new law establishes that the Committee be composed of 11 lawmakers and 10 representatives of civil society. This means that civil society representatives no longer constitute the majority of the Committee. Moreover, since the ten civil society representatives are themselves selected by the National Assembly, it is clear that the Committee is not independent, and is necessarily prone to political influence or control.  

On February 1, 2022 the National Assembly elected the civil society representatives and installed the Nomination Committee under the newly approved law.  Currently, nine out of ten of those members are from civil society organizations with close ties to the ruling party, which entails a lack of independence and impartiality.

Under international law, the selection of judges should be conducted or at least advised by an independent body. The election must not be based on any discriminatory grounds, including those of political or other opinion. In this regard, the UN Basic Principles on the Independence of the Judiciary states that “persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law” and “[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives”. The Venezuelan experience of the 1999, 2000, 2004, 2010 and 2015 appointments have given clear indications of political motivated appointments. The International Commission of Jurists has reported:

Currently, the great majority of Supreme Court judges are members of the United Socialist Party of Venezuela (PSUV) and/or former government officials. Many of them hold significant positions on the [Supreme Court of Justice, SCJ]. Thus, gradually but steadily, the government’s party has coopted the SCJ and turned it into an appendage of the Executive branch.

The Removal of Current Justices 

The new law establishes a full renovation of the composition of the Supreme Court. This results in a dismissal process that fails to comply with the Constitution and arbitrarily cuts short the terms of the current Justices. Pursuant to Article 264 of the Constitution, Supreme Court Justices are elected for a single 12-year period, with no possibility of extension of renewal. The new law blatantly violates this constitutional provisional.

Furthermore, since the new regulation established a summary procedure, it is not in accordance with international human right law. In particular, the law violates international standards related to the principle of security of tenure of judges and the right to due process enshrined in the International Covenant on Civil and Political Rights and the UN Basic Principles on the Independence of the Judiciary. While it is arguably the case that existing judges were not appointed through proper constitutional procedures, any defect in this regard cannot be remedied through a new wholly unconstitutional procedure. A previous violation does not justify a new violation and the removal of the current justices is still a violation of the Constitution and international human rights standards.

An Unconstitutional Extension in the term of the Current Justices

The new law also allows the National Assembly to appoint justices whose current terms in office have not expired to a new additional term. This means that justices appointed back in 2015 may present their candidature for appointment for a new term, allowing already contentious judges to remain in office for 22 years. The Inter-American Commission on Human Rights has noted that such “reelection jeopardizes judicial independence, given that magistrates seeking reelection may seek to obtain the support of the authority in charge of these decisions through their actions, or that their behavior may be perceived in this way by those involved in legal proceedings.”

Additional Concerns 

The new law also undermines the independence of the judiciary by delegating power to appoint the General Inspector of the Courts and the Director of the National School of the Judiciary to the National Assembly. This appointing power inappropriately serves to politicize these administrative positions. 

The role of the General Inspector of Courts was established to oversee and verify the judicial management of the courts. The Director of the National School of the Judiciary is responsible for organizing and administering competitive examinations for entry into the judicial career and promotion of judges. Neither of these positions should be considered or classified as political positions.

Venezuelan Judiciary at a glance  

In conclusion, this new law does not meet the universal rule of law standards or uphold the Venezuelan Constitution. Instead, it reinforces the lack of judicial independence in Venezuela and the political control over the judiciary.

The way Venezuela has chosen to reform the Supreme Court does not guarantee the independence and impartiality of the Nomination Committee, which in turn compromises the independence and impartiality of the justices who will be appointed.

Venezuela needs judicial reform, but this process must be performed in compliance with principles of the independence of the judiciary and the rule of law. The proposed reform only instead promotes political control of the judiciary and erosion of the rule of law.

* Carlos Lusverti is the Latin American Legal Adviser at the International Commission of Jurists.

 Photo: AP Photo/Ariana Cubillos