Caracas, Venezuela (HRW) – Venezuelans went to the polls on December 6 and voted for change. Despite the uneven playing field leading up to the elections, the intimidation of opposition candidates, the lack of independence of the National Electoral Council, and the absence of meaningful international electoral oversight, the opposition won a “supermajority”—112 out of 167 seats—in the National Assembly.
Someone could think that this shows Venezuela’s democracy is in good health. But the reality is that democratic governance is not delivered by only respecting the “will of the people,” as the Universal Declaration of Human Rights puts it. It is not enough to carry out elections or even to accept the outcome of the vote—and in this case the opposition’s landslide victory would have been extremely difficult to hide. Democratic governance also requires respect for the fundamental principle of the separation of powers, but the current Venezuelan government doesn’t share that view.
Since the political takeover of the Supreme Court in 2004—which increased the number of justices from 20 to 32 and packing the court with supporters—the judiciary has ceased to function as an independent branch of government. The Supreme Court has openly rejected the principle of separation of powers and repeatedly ruled validating the government’s growing disregard for basic rights. This lack of independence trickles down to the entire judiciary; more than 60 percent of lower court judges do not have tenure and can be removed from office without due process by a Supreme Court commission.
Venezuelan authorities have used the justice system’s lack of independence to punish media outlets and prosecute critics, including prominent political opponents such as Leopoldo López.
Over the past decade, the pro-government majority in the Assembly has continued to pack the Supreme Court. At the moment, there are 18 vacancies, including 13 created by justices who requested their retirement in October, reportedly a year before their 12-year terms ended. The outgoing pro-government legislators currently have the simple majority they need to appoint justices, but would have to rush the process to do it before the new Assembly takes office.
This would ensure many more years of a Chavista Supreme Court, which has a Constitutional Chamber with powers to annul laws adopted by the National Assembly—including laws to overhaul the judiciary, or to grant remedies to people whose rights were violated during unjust prosecutions.
Latin American governments, and Brazil in particular, have a critical role to play to ensure that the voices of Venezuelans who went to the polls on Sunday are not undercut by the Venezuelan government’s cynical attempts to further undermine the rule of law.
The 2001 Inter-American Democratic Charter authorizes the OAS to respond actively to threats to the democratic order of its member states. It states that essential elements of representative democracy include “the separation of powers and independence of the branches of government.”
The Ushuaia Protocol of Mercosur recognizes that the “full validity of democratic institutions is an essential condition” for integration among state parties. The Montevideo Protocol reiterates the member states’ “commitment with the promotion, defense, and protection of democratic order, the rule of law and its institutions, of human rights and fundamental liberties” as “essential and indispensable conditions” to belong to the bloc.
Given the relevance of Brazil in the region and its expectations to be considered a global player, the Brazilian government has a fundamental responsibility to ensure that these international agreements are taken seriously.
In November, following a long silence and only after an opposition leader was killed during a campaign event, the Rousseff administration issued a strong public statement calling on Venezuelan authorities to ensure that elections are “clean and peaceful” and that the people’s “popular will” is fully respected. Brazil should now support and promote efforts to press Venezuela to stop the imminent re-packing of the Supreme Court. Otherwise, the democratic mandate provided by the electoral results may come to nothing.
This report prepared by José Miguel Vivanco for Human Rights Watch.