On the Independence of Public Powers

IS THE JUDICIAL BRANCH CONTROLLED BY THE EXECUTIVE?

1. Ever since his inauguration, President Chávez and his Administration exerted much pressure on the Supreme Court of Justice to obtain the Court's approval for the carrying out of a referendum that would lead to a Constituent Assembly, even though the 1961 Constitution included no such provision.

2. Pressure intensified to such level that by the end of August 1999 most of the Court's magistrates had no choice but to resign, among them the then President of the Supreme Court, Cecilia Sosa, who resigned following the swearing-in of the nine members of the Judicial Emergency Commission entrusted with reorganizing the judicial system.

3. Following the approval of a new Constitution and the election of a new National Assembly, the new members of the Supreme Court of Justice were elected by the Assembly's two thirds pro-government faction. However, the rules regarding the nomination of magistrates, embodied in Article 263 of the new Constitution, were discarded in favor of other criteria established by the Court's magistrates - some of whom were up for re-election. These criteria are included in a Supreme Court ruling issued on December 12, 2000, regarding the Special Law on the Ratification or Designation of Members of the People's Power and Magistrates of the Supreme Court of Justice for the First Constitutional term.

4. When the Supreme Court of Justice issued decisions that contravened the Executive's political line - such as (1) its not finding enough merits to bring to trial the members of the Armed Forces who had been accused of treason following the April 2002 events that led to the brief ousting from power of President Chavez and (2) the Supreme Court's Electoral Chamber's rulings in favor of the signatures r gathered by the opposition to request a Referendum to Revoke the President- the Government began a campaign aimed at modifying the Basic Law of the Supreme Court of Justice. al.

5. According to Article 203 of the Constitution, all Basic Laws must be passed by qualified majority, that is, two thirds of the members of the Assembly. However, in December 2004, the Basic Law of the Supreme Court of Justice was modified by simple majority (83 out of 165 Congressmen).

6. One of the arguments put forth by the government to justify its modification of the Basic Law of the Supreme Court of Justice was that the number of magistrates needed to be increased due to the volume of work pending. However, in January 2005 the then President of the TSJ, Judge Iván Rincón Urdaneta, in his speech on the occasion of the beginning of activities pointed out that during the year 2004 the TSJ had been more productive than usual and added, adding that ??This annual increase in activities reflects the high level of efficiency of each of the Court's Chambers ?? (TSJ, Serie Eventos No. 14, P.10). The TSJ's 2004 Activities' Report indicates that the Court ruled on 94% of the cases that were brought to its attention.

7. The New Basic Law of the Supreme Court of Justice expands the number of magistrates from 20 to 32. Even though many within and outside the Assembly argued that such modification should be declared null, on January 26, 2004 the Supreme Court issued a ruling ratifying its constitutionality On December 14, 2004. El 14 de diciembre de 2004, the National Assembly appointed 17 new principal magistrates: 12 to comply with the increases dictated by the new law and 5 to fill the posts of those magistrates who had opted for retirement. Moreover, the National Assembly appointed 32 deputy magistrates, a provision that was not included in the previous law.

8. The Chairman of the Nominating Commission, ? Congressman Pedro Carreño? stated very clearly that the Government of President Hugo Chávez Frías would not allow any opposition in the Supreme Court of Justice: ?We will not allow a self inflicted goal?. Adding that those elected ?are magistrates whose revolutionary affiliation is more than guaranteed?. Thus, among the newly appointed magistrates were members or sympathizers of the government's party, as well as former members of the national Assembly on the government's party ticket and even the President of the National Electoral Council, Francisco Carrasquero.

9. In his inaugural address the new President of the Supreme Court of Justice, Judge Omar Mora Diaz, described himself as a ?revolutionary?, adding that he was determined to apply a ?revolutionary justice?. Later, upon presenting his strategic plan to reform the Judicial Power, Mora Diaz proposed the adoption of a procedure for the ?revolutionary cleansing? of the Supreme Court, sparking the concerned reaction of several important lawyers.