Holding the Judiciary Accountable or in Check?: Lessons from Venezuela

Ángel R. Oquendo*


The all-important pursuit of judicial accountability can occasionally lead to disaster. If taken over by the political branches of government, it may compromise and even destroy the judiciary. The 1999 Venezuelan constitutional crisis provides a case in point. It not solely foreshadowed its current counterpart but has also come to corroborate Karl Marx’s adage “that all great world-historic facts and personages appear, so to speak, twice . . . : the first time as tragedy, the second time as farce.”[1] Only an autonomous, non-partisan organ can hold judges accountable while treating them fairly and without threatening their independence.

In December of 1998, Hugo Rafael Chávez Frías democratically attained the presidency in Venezuela.[2] He took office on February 2, 1999, swearing allegiance to what he termed a “moribund” constitution. He was referring to the constitutional order that Venezuelans had forged after the collapse of Marcos Pérez Jiménez’s military dictatorship in 1958 and that continued in force.[3]

Chávez set out right away to bury that 1961 Constitution. In April 1999, his Fifth Republic Movement organized a referendum to draft a new charter. It imposed itself by a landslide, obtaining more than eighty percent of the votes.[4]

The election of the Constituent Assembly’s membership took place on July 25. Once again, the Movement carried the day, impressively securing 120 of the 131 seats. Nonetheless, a very low voter participation rate (less than fifty percent) marred this triumph.[5]

The guidelines approved in the previous plebiscite had reserved three of the 131 positions for representatives of indigenous communities. Hence, barely the eight remaining spots went to the opposition. The renowned constitutional scholar Allan R. Brewer Carías occupied one of these posts.[6]

The Assembly immediately took on its task with enormous zeal. It quickly overstepped its boundaries, despite repeated admonitions by Brewer Carías and others. It ultimately set in motion the possibly most serious institutional challenge Venezuela had experienced until then.

The body did not restrict itself to assembling a new constitution. In fact, it relegated its main mission to the back burner. It initially concentrated instead on regulating and eventually on displacing the governmental powers in place, particularly the judiciary and the legislature.[7]

On August 12, the Assembly enacted a decree granting itself the authority “to abolish government institutions and dismiss officials.”[8] It declared a “‘judicial emergency’”[9] and implemented policies designed to purge and overhaul the adjudicative establishment. The assemblypersons, accordingly, named a commission to investigate the justices of the Supreme Court, the membership of the Judicial Council, and approximately 1200 judges.[10] They charged it with deciding whether, on the one hand, to confirm these individuals in their office or, on the other hand, to sanction or terminate them for corruption.[11]

On August 23, 1999, the top tribunal’s members passed on this extraordinary enactment. They upheld it in an eight-to-six vote. Justice Hildegard Rondón de Sansó abstained.[12]

The Court affirmed “its willingness to collaborate with other branches of government” and offered “to contribute to the principal aims of the Judicial Emergency Decree.”[13] “As an example of this cooperative spirit,” it embraced the appointment of its own Justice Alirio Abreu Burelli to the freshly empowered commission, relieving “him temporarily of his official responsibilities” and according him “the leave he ha[d] requested.”[14]

In its third consideration, however, the ruling warns that “the process of judicial reorganization” must respect, “among other things, the right to a defense, to rational and proportionate court decisions, as well as to judicial independence and autonomy.”[15] It thus seems to have contemplated an adjudicative revision of the determinations of the Judicial Emergency Commission and the National Constituent Assembly evaluating and disciplining judges and their personnel. The tribunal might have been considering the possibility of a supplementary discretionary appellate round once the parties had exhausted their appeal of right before the Assembly.

Justice Hermes Harting, for his part, dissented and cautioned that the failings of the Venezuelan system of justice were due not merely to the dishonesty of adjudicators but additionally to the lack of funds.[16] He could have perhaps said as much about most of the Latin American continent, with understaffed and ill-equipped courthouses apparently everywhere. Under these circumstances, slow-paced and low-quality adjudication is almost inevitable.

In all likelihood, the insufficiency of financing lies at the root of the problem. An extremely underpaid staff usually faces a strong temptation to be dishonest. Moreover, one can hardly pay for effective anti-corruption devices with meager means. One must surely be tough both on corruption and on its causes. Maybe the regime erred in excessively focusing on punishment, to the detriment of prevention.

In her own vehement dissent, Chief Justice Cecilia Sosa Gómez protested that the Assembly had conducted itself improperly at many levels.[17] First, it did not have the authority to do anything beyond drafting a new charter and had transgressed its mandate when it performed other functions.[18] Second, the body had set up a para-judicial apparatus by authorizing its Judicial Emergency Commission to  hear complaints against judges and itself to entertain appeals.[19] Third, it had placed itself above the Supreme Court and thus encroached upon the latter’s supremacy.[20] Finally, the Assembly had undertaken acts that were not subject to any kind of review or check, not even by the Venezuelan people.[21] Consequently, it had established itself as an absolute power.[22]

Clearly, Sosa Gómez felt betrayed by her colleagues. After the decision, she resigned with a drastic declaration: “In plain terms, Venezuela’s Supreme Court of Justice has committed suicide in order to avoid being assassinated. The end result is the same. The Court is dead.”[23]

Sosa Gómez stated that the Assembly had crassly overreached its limits. She maintained that its exclusive charge was to draft a constitution and to build “a new system to eliminate the vices and the parasites of a democracy that had regressed.”[24] The Venezuelan democratic order, she conceded, “had enabled a few political leaders to entrench themselves and to lead the nation’s destiny, using corruption as a mechanism to attract adherents.”[25]

During a press conference, Sosa Gómez reformulated the argument she made in her opinion:

The fact that the Assembly is constitutive does not mean that it may act as a constituted power. Nor may it violate that paramount principle that calls for a separation between constituted and constitutive powers, as well as between absolute and democratic power. . . . The National Constituent Assembly’s actions in conjunction with this Court’s submission have brought about the demise of the last constitutionality- and legality-control that remained in Venezuela.[26]

She went on to make the following denunciation:

I would like to denounce the betrayal of democracy by the Congress and by the political parties. Not only did they destroy what little remained of a “moribund” system—to invoke the President’s accurate epithet. They also violated the rule of law by abandoning, ex proprio motu, their constitutional responsibilities and by eliminating one of the fundamental branches of government, that is, the legislature.[27]

Sosa Gómez concluded on a dramatic note. “With profound sadness, I must ask Venezuelans and the rest of the world to forgive me. Trained in democracy, I am not able to participate in an attack on it.”[28]

Sosa Gómez’s resignation gave rise to a considerable amount of debate. Many in Venezuela and abroad applauded her courage, yet others espoused “a more cynical interpretation of her actions.”[29] Her critics recalled “the central role she played in recent years in quashing two highly politicized corruption cases, and [wondered] about the reasons for what they [regarded] as a belated display of conscience.”[30]

At any rate, the Assembly was manifestly acting contrary to its mandate. It was not entitled to intervene against the judiciary’s corrupt practices. Furthermore, the adopted measures themselves appeared to reflect an incapacity to honor the established bounds and presaged future assaults upon the judicial and legislative governmental powers.

Upon asserting its authority to scrutinize the Supreme Court, the National Constituent Assembly indeed proceeded to discharge all of the justices. On December 22, 1999, it created a new top tribunal, the Supreme Tribunal of Justice. For the sake of continuity, this adjudicative body assumed jurisdiction over all of the items on its predecessor’s docket.[31]

In González Montero v. Nat’l Constituent Assemb., the newly founded Court recounted a piece of its own history.

The Constitution of the Bolivarian Republic of Venezuela—published in the official Gazette, No. 36,860, on December 30, 1999—changed the structure and the name of this highest tribunal. The National Constituent Assembly issued a decree on December 22, 1999, appointing judges to this Supreme Court. These justices were sworn in and took office on December 27, 1999. The Plenary Chamber was thus constituted. . . .

On December 15, 1999, the referendum that ratified the Constitution of the Bolivarian Republic of Venezuela took place. This fundamental document, which is currently in force, includes in Chapter 3 of Title V a set of provisions on the structure and functions of the judiciary within the system of justice. Specifically, Article 266 defines the authority of the Supreme Court. It expressly distributes responsibilities among the various chambers. . . . .

The National Constituent Assembly similarly dislodged the parliament, which the Venezuelan citizenry had elected on November 9, 1998, prior to Chávez’s initial presidential victory at the polls. On August 25, 1999, the Assembly deprived lawmakers of their right not just to legislate but even to meet. It therefore limited “the legislature’s work to matters such as supervising the budget and communications.”[32] It thereby transformed itself into the sole parliamentary power in Venezuela.

The Assembly finally dissolved the Congress on December 22, 1999, “replacing it with an appointed 21-member body drawn mostly from its own ranks.”[33] By then, exactly one week had passed since the Venezuelan electorate had endorsed the 1999 Constitution. The “Congresillo” or “mini Congress” exercised legislative functions from the time of the Assembly’s scheduled dissolution on February 3, 2000, up to the election of a new parliament. Former Interior Minister Luis Miquilena, the most prominent assemblyperson, headed this interim organ.[34]

The whole effort to demand accountability from judges seems to have stemmed from the executive branch. It appears, like the body that spearheaded it, to have soon lost track of its original purpose and become part of a broader confrontation with the judiciary and legislature. Venezuela and other countries in the region and elsewhere should learn the lesson. They should construct credible, self-standing, and impartial institutions in order to hold the judicial establishment accountable without undermining its independence or basic precepts of fairness.

* George J. and Helen M. England Professor of Law, University of Connecticut; CAPES Visiting Professor from Abroad, Federal and State Universities of Rio de Janeiro; DAAD Visiting Professor, Free University of Berlin. Ph.D., M.A. (Philosophy), A.B. (Economics and Philosophy), Harvard University; J.D., Yale Law School. I have myself undertaken the translations of the quoted non-English-language materials and vouch for their accuracy.

[1] See Karl Marx & Friedrich Engels, Der achtzehnte Brumaire des Louis Bonaparte, in VIII Werke 115, 115 (1972) (“Hegel bemerkte irgendwo, daß alle großen weltgeschichtlichen Tatsachen und Personen sich sozusagen zweimal ereignen. Er hat vergessen, hinzuzufügen: das eine Mal als Tragödie, das andere Mal als Farce.”).

[2] See Diana Jean Schemo, Venezuelans Elect an Ex-Coup Leader as Their President, N.Y. Times, Dec. 7, 1998, at A1.

[3] See Clifford Krauss, New Chief to Battle Venezuela’s Cancer,” N.Y. Times, Feb. 3, 1999, at A8.

[4] See Larry Rohter, 80% of Vote Reported to Back Rewrite of Venezuela’s Charter, N.Y. Times, Apr. 26, 1999, at A9.

[5] See generally Larry Rohter, Voters Push Power toward Venezuela Leader, N.Y. Times, July 26, 1999, at A8.

[6] See generally Larry Rohter, Venezuelan Leader Moves a Step Closer to Broad New Powers, N.Y. Times, Aug. 13, 1999, at A5.

[7] Id.

[8] See generally id.

[9] Larry Rohter, Venezuelan Congress Stripped of Its Last Remaining Powers, N.Y. Times, Aug. 31, 1999, at A11.

[10] Juan Jesús Aznárez, La presidenta del Supremo venezolano dimite y da por enterrado el Estado de derecho, El País Digital, Aug. 25, 1999.

[11] Id.

[12] ACP-23081999 (Pleno) (Corte Suprema de Justicia) (1999) Id.

[13] Id. (¶ 5).

[14] Id.

[15] Id. (¶ 3).

[16] Id. (Harting, dissenting).

[17] Id. (Sosa Gómez, dissenting).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Juan Jesús Aznárez, La presidenta del Supremo venezolano dimite y da por enterrado el Estado de derecho, El País Digital, Aug. 25, 1999 (quoting Cecilia Sosa Gómez).

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Larry Rohter, Venezuelans Applaud Leader’s Assault on System, N.Y. Times, Sept. 5, 1999, at 13 (§ 1).

[30] Id.

[31] See generally González Montero v. Nat’l Constituent Assemb., Exped. 1142 (Const. Chamb.) (Supr. Ct.) (Venez.) (2000).

[32] Larry Rohter, Venezuelan Congress Fights Loss of Power, N.Y. Times, Aug. 27, 1999, at A8.

[33] Larry Rohter, Floods Confuse Venezuela’s Political Outlook, N.Y. Times, Dec. 24, 1999, at A11.

[34] See generally id.