[R-G] Human Rights Botch: Vivanco & Venezuela

[Macdonald Stainsby]

Human Rights Botch: Vivanco & Venezuela

By Al Giordano,
Posted on Thu Jun 17th, 2004 at 03:04:21 PM EST

	José Miguel Vivanco of Human Rights Watch today launched a 
media-attention-seeking attack on the Venezuelan government for a new law 
providing a process for impeachment of Supreme Court justices in that 
country. He held a press conference in Caracas, barking highly charged 
words in a report titled Venezuela: Judicial Independence Under Siege.

Vivanco and Human Rights Watch are now on record opposing a U.S.-modeled 
impeachment process for Supreme Court justices in Venezuela. The timing - 
two months before the August 15 referendum in that country - is obviously a 
partisan attempt to meddle in electoral politics.

Perhaps Vivanco and his bureaucrats should have done a little bit of 
research on the United States Constitution and American History before 
demonstrating such ignorance about democratic principles.

Before this essay is done, we will hear from Thomas Jefferson and Franklin 
Delano Roosevelt - whose stated principles on the appointment and 
impeachment of Supreme Court justices HRW has now gone against with this 
maneuver - on this question. But first let's consult a more recent U.S. 
president who spoke on this issue… Gerald R. Ford…

Four years before becoming president of the United States, Republican 
Congressman Gerald Ford spoke on the floor of the House of Representatives, 
calling for the impeachment, under the provisions allowed by the U.S. 
Constitution, of Supreme Court Justice William O. Douglas.

Ford said:

     What, then, is an impeachable offense? The only honest answer is that 
an impeachable offense is whatever a majority of the House of 
Representatives considers it to be at a given moment in history; conviction 
results from whatever offense or offenses two-thirds of the other body 
considers to be sufficiently serious to require removal of the accused from 
office.

     - Source: Congressional Record #11,913 (1970), 116th Congress

The title of the Human Rights Watch report creates an impression that, 
prior to the presidency of Hugo Chavez, Venezuela had "judicial 
independence." That is a knowingly false statement, because in the text of 
the report, Vivanco and HRW admit that it never has had it. Their cruel 
joke against human rights is revealed by the inflammatory, knowingly false, 
language they use against a new judicial reform law in Venezuela.

The HRW report claims:

     The new law, which President Chávez signed last month, expands the 
Supreme Court from 20 to 32 members. It empowers Chávez’s governing 
coalition to use its slim majority in the legislature to obtain an 
overwhelming majority of seats on the Supreme Court. The law also gives the 
governing coalition the power to nullify existing judges’ appointments to 
the bench.

Fact Check: The Venezuelan judicial impeachment process is virtually 
identical to that in the United States (a process about which the 
beltway-based Vivanco has been wholly silent for the entirety of his 
career). No authentic democracy can survive without the checks and balances 
that allow removal of court justices by Congress.

The United States constitution also provides for use of a "slim majority" 
to appoint Supreme Court Justices. (Remember the U.S. Senate battle over 
the nomination of Supreme Court Judge Clarence Thomas? Only fifty-percent 
plus one vote was required to install him: the same exact process that the 
hypocrite Vivanco attacks in Venezuela.).

With less than two months to go before the historic August 15th referendum 
(to recall or ratify the term of President Hugo Chavez: the voters will 
decide), Vivanco and Human Rights Watch's partisan political agenda stands 
naked. Instead of praising Venezuela for being the only country on earth 
that allows citizens to recall their president, and that has recently shown 
its commitment to that process, Vivanco is throwing tomatoes at a process 
that, although it exists in many other countries including the United 
States, he and his organization have remained totally silent about in other 
lands.

Impeachment of Supreme Court Justices is a vital right for any authentic 
democracy. As recently as this young century, the National Lawyers Guild 
seriously considered a campaign to impeach the five U.S. Supreme Court 
justices who appointed George W. Bush as president, ratifying a stolen 
election.

As the quote from former President Ford, above, reveals, the right to 
impeach U.S. Supreme Court justices for any "offense" that " of the House 
of Representatives considers it to be at a given moment in history." That 
is how a system of checks and balances works. Vivanco has thus harmed Human 
Rights Watch's credibility around the world with this latest grandstanding 
maneuver.

National Lawyers Guild vice president Nathan Newman wrote of this process 
in the United States:

     In fact, over the course of American history, the House of 
Representatives has impeached fifteen individuals, including two 
Presidents, twelve judges, a senator, and a cabinet member. The Senate has 
convicted seven of the fifteen… Most were impeached for acts of personal 
impropriety but a number of others have been impeached strictly for their 
official conduct. The early history of the Republic saw a number of 
politically-charged judicial impeachments.

Newman noted:

     It is relatively clear that the framers of the Constitution saw 
impeachment as an important political check on the judicial branch. 
Notably, judges were to serve during "good behavior" subject to 
impeachment. During the Constitutional Convention, George Mason ignited the 
debate about what should constitute an impeachable offense under the 
Constitution. At first, the only proposed impeachable offenses were treason 
and bribery, but Mason believed that "attempts to subvert the Constitution 
may not be Treason" but should be recognized as an impeachable offense. 
Mason proposed that "maladministration" be added to the list of offenses 
but, after some debate, Mason replaced it with the phrase "other high 
Crimes and misdemeanors." The delegates then passed that recommendation 
eight to three without further debate.

Newman also notes that William Taft, the only man to serve as both Chief 
Justice of the Supreme Court and President of the United States, said:

     Under the authoritative construction by the highest court of 
impeachment, the Senate of the United States, a high misdemeanor for which 
a judge may be removed is misconduct involving bad faith or wantoness [sic] 
or recklessness in his judicial actions, or in the use of his official 
influence for ulterior purposes. By the liberal interpretation of the term 
"high misdemeanor" which the Senate has given there is now no difficulty in 
securing the removal of a judge for any reason that shows him unfit.

Read the U.S. Constitution, Jose:

     Article I, Section 2

     Clause 5: The House of Representatives shall chuse their Speaker and 
other Officers; and shall have the sole Power of Impeachment.

     Article I, Section 3

     Clause 6: The Senate shall have the sole Power to try all 
Impeachments. When sitting for that Purpose, they shall be on Oath or 
Affirmation. When the President of the United States is tried, the Chief 
Justice shall preside: And no Person shall be convicted without the 
Concurrence of two thirds of the Members present.

     Clause 7: Judgment in Cases of Impeachment shall not extend further 
than to removal from Office, and disqualification to hold and enjoy any 
Office of honor, Trust or Profit under the United States: but the Party 
convicted shall nevertheless be liable and subject to Indictment, Trial, 
Judgment and Punishment, according to Law.

In plain English, that means that the U.S. House of Representatives may 
vote to "impeach" (that is to say, to hold a kind of trial seeking removal 
of any federal official, including Supreme Court justices). The "trial" is 
held in the Senate. The Vice President presides over the impeachment of any 
Supreme Court justice. The votes of two thirds of the senators present are 
required to remove the justice.

In fact, the great democrat Thomas Jefferson and his supporters utilized 
this Constitutional process to impeach Supreme Court justice Samuel Chase 
in 1804. Jefferson lost the vote in the Senate. And that is how the process 
works.

The same is true for Venezuela. The new provisions for impeachment of 
Supreme Court justices are in the letter and spirit of Jeffersonian democracy.

The other complaint by Vivanco and Human Rights Watch is that they oppose 
the effort by President Hugo Chavez and the Congress to expand the number 
of Supreme Court Justices from 20 to 32.

Rising in rebuttal, courtesy of audio archives, I call my first witness: 
President Franklin Delano Roosevelt of the United States, who valiantly 
tried to expand the number of U.S. Supreme Court justices. This testimony 
is from the transcript of Roosevelt's Fireside Chat radio program, on March 
9, 1937. Roosevelt had proposed the retirement of Supreme Court judges at 
the age of 70, and if any judge chose not to retire at 70, an additional 
member would be added to the Court. For that, Roosevelt was accused of 
"packing" the Court:

     What is my proposal? It is simply this: whenever a judge or justice of 
any federal court has reached the age of seventy and does not avail himself 
of the opportunity to retire on a pension, a new member shall be appointed 
by the president then in office, with the approval, as required by the 
Constitution, of the Senate of the United States…

     That plan has two chief purposes. By bringing into the judicial system 
a steady and continuing stream of new and younger blood, I hope, first, to 
make the administration of all federal justice, from the bottom to the top, 
speedier and, therefore, less costly; secondly, to bring to the decision of 
social and economic problems younger men who have had personal experience 
and contact with modern facts and circumstances under which average men 
have to live and work. This plan will save our national Constitution from 
hardening of the judicial arteries.

     The number of judges to be appointed would depend wholly on the 
decision of present judges now over seventy, or those who would 
subsequently reach the age of seventy…

     Those opposing this plan have sought to arouse prejudice and fear by 
crying that I am seeking to "pack" the Supreme Court and that a baneful 
precedent will be established…

     Is it a dangerous precedent for the Congress to change the number of 
the justices? The Congress has always had, and will have, that power. The 
number of justices has been changed several times before, in the 
administrations of John Adams and Thomas Jefferson - both of them signers 
of the Declaration of Independence - in the administrations of Andrew 
Jackson, Abraham Lincoln, and Ulysses S. Grant.

It should be embarrassing enough to Human Rights Watch directors, members, 
and donors, that Vivanco now places the organization in direct historic 
opposition to human rights heroes like Thomas Jefferson and Franklin Delano 
Roosevelt. It's worse that he reveals complete ignorance on the true 
provisions of Venezuela's judicial reform.

A simple Google News search would have unearthed Greg Wilpert's recent 
painstaking explanation, in clear English, of what the reform does and does 
not do:

     Supreme Court Law: Constitutional Dictatorship or Stronger Rule of Law?

     As if the confrontations over the recall referendum and the 
paramilitary presence were not enough, pro-Chavez legislators have recently 
passed a highly controversial new Supreme Court law. Venezuela's 1999 
constitution requires such a new law and also specifies that the entire 
judicial system is subordinated, not just procedurally, but also 
administratively to the Supreme Court. Most of the law's 29 articles are 
relatively uncontroversial. However, three provisions in the new law have 
raised the opposition's ire.

     First, the new law increases the number of Supreme Court judges from 
20 to 32. The opposition says that such an increase is unwarranted and that 
it would allow Chavez and his supporters to pack the court all over again, 
now that only half of the current judges appear to be sympathetic to the 
government. Government supporters, however, argue that the current number 
of judges is insufficient for the case load of the court and that the 
current number of judges corresponds to the old Supreme Court of the 1961 
constitution which had only three chambers, while the new one has six.

     Second, the new Supreme Court law allows judges to be named with s 
simple majority, should three previous efforts to name judges with the 
constitutionally required two-thirds majority fail. Here the opposition 
argues that this subverts the previous two-thirds majority requirement that 
the earlier Supreme Court law had set, allowing the legislature to name 
judges with a simple majority. Pro-Chavez legislators point out, though, 
that given the current impasse in the nearly evenly divided legislature, an 
escape hatch for naming judges must be found.

     Besides, naming judges by simple majority is not all that unusual in 
the international context. U.S. Supreme Court judges, for example, do not 
need more than a simple majority.

     Third, the new law allows the legislature to suspend judges who are 
accused of wrong-doing, until a trial is held. Also, should a judge be 
found to have lied about fulfilling the pre-requisites for being named a 
judge, that judge's naming may be reversed with a simple majority vote of 
the legislature. Here the opposition argues that this provision makes 
reduces the independence of judges because the legislature could threaten 
them with removal. This would certainly be the case if judges are named who 
do not fulfill all of the requirements set by the constitution or those who 
commit a crime.

     However, this type of suspension or removal is not all that easy in 
that it depends upon the cooperation from another independent branch of the 
state, the attorney general's office. In other words, it hinges upon just 
how independent the judicial and the "moral"[3] branches are from each 
other. Structurally, according to the constitution, these branches are 
completely independent from each other, in that no other branch, such as 
the executive, can remove them at will.

     Given the opposition's suspicion of any action that will give the 
government an advantage, especially in the Supreme Court, which is one of 
the last state bastions (besides the National Assembly) where the 
opposition still has an important share of power, it should not come as a 
surprise that they would do just about anything to stop the law. As a 
matter of fact, on several occasions the opposition organized exhausting 
24-hour filibusters in their efforts to stop the law from passing.

     It is difficult to identify to what extent the opposition's resistance 
to the Supreme Court law is born of a real fear of Venezuela becoming a 
"constitutional dictatorship" and to what extent it comes from protecting 
their "turf."

José Vivanco is either ignorant of United States law and the true 
provisions of Venezuela law, or he is being dishonest enough to "play 
along" with this latest smear campaign against Venezuela and its Bolivarian 
Constitution and democratically-elected government.

Vivanco and Human Rights Watch - a bureaucrat and an organization that both 
went AWOL during the April 2002 coup d'etat in Venezuela: HRW, with a 
cowardice that shall live in infamy, was completely silent on the abuses 
committed, crossing its fingers, hoping the coup would succeed, until the 
coup was over - would do better to invest their attention on real human 
rights abuses in this hemisphere: the tortures in Guantanamo Bay, for 
example, where the screams of the victims occur today and tonight, but 
cannot be heard through Jose Vivanco's partisan earplugs.

Instead, Vivanco is in Venezuela today, attacking that country in knowingly 
false and inflammatory terms for doing nothing more or less than what the 
host government of Human Rights Watch has wisely done in its own land for 
more than two centuries. If HRW were doing its job according to its stated 
mission, it would be supporting the new provisions in Venezuela, and 
instead using its multi-million dollar budget to call for the use of such 
time-honored impeachment provisions in the United States to remove the 
justices that imposed a Court-Appointed torturer to that country's highest 
office.

Heard or not, the screams continue today from Guantanamo, from Colombia, 
from the cell of Pacho Cortes in Bolivia, and not to mention from Iraq and 
so many other torture chambers throughout the world. How low does José 
Vivanco's cowardice go to further muzzle the sound of those screams by 
wasting his organization's time and money to create a media show across the 
Caribbean that only distracts from the real human rights crises in our 
hemisphere?

If anyone should be impeached from a job of arbitor or judge of anything in 
our América, it is José Miguel Vivanco.
-- 
Macdonald Stainsby
http://lists.econ.utah.edu/mailman/listinfo/rad-green
In the contradiction lies the hope
		--Brecht.