Human Rights Botch: Vivanco & Venezuela

Human Rights Botch: Vivanco & Venezuela

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

=09Jos=C3=A9 Miguel Vivanco of Human Rights Watch today launched a=
=20
media-attention-seeking attack on the Venezuelan government for a new=
 law=20
providing a process for impeachment of Supreme Court justices in that=
=20
country. He held a press conference in Caracas, barking highly charge=
d=20
words in a report titled Venezuela: Judicial Independence Under Siege=
.

Vivanco and Human Rights Watch are now on record opposing a U.S.-mode=
led=20
impeachment process for Supreme Court justices in Venezuela. The timi=
ng -=20
two months before the August 15 referendum in that country - is obvio=
usly a=20
partisan attempt to meddle in electoral politics.

Perhaps Vivanco and his bureaucrats should have done a little bit of=
=20
research on the United States Constitution and American History befor=
e=20
demonstrating such ignorance about democratic principles.

Before this essay is done, we will hear from Thomas Jefferson and Fra=
nklin=20
Delano Roosevelt - whose stated principles on the appointment and=
=20
impeachment of Supreme Court justices HRW has now gone against with t=
his=20
maneuver - on this question. But first let's consult a more recent U.=
S.=20
president who spoke on this issue=E2=80=A6 Gerald R. Ford=E2=80=A6

Four years before becoming president of the United States, Republican=
=20
Congressman Gerald Ford spoke on the floor of the House of Representa=
tives,=20
calling for the impeachment, under the provisions allowed by the U.S.=
=20
Constitution, of Supreme Court Justice William O. Douglas.

Ford said:

     What, then, is an impeachable offense? The only honest answer is=
 that=20
an impeachable offense is whatever a majority of the House of=20
Representatives considers it to be at a given moment in history; conv=
iction=20
results from whatever offense or offenses two-thirds of the other bod=
y=20
considers to be sufficiently serious to require removal of the accuse=
d from=20
office.

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

The title of the Human Rights Watch report creates an impression that=
,=20
prior to the presidency of Hugo Chavez, Venezuela had "judicial=20
independence." That is a knowingly false statement, because in the te=
xt of=20
the report, Vivanco and HRW admit that it never has had it. Their cru=
el=20
joke against human rights is revealed by the inflammatory, knowingly =
false,=20
language they use against a new judicial reform law in Venezuela.

The HRW report claims:

     The new law, which President Ch=C3=A1vez signed last month, expa=
nds the=20
Supreme Court from 20 to 32 members. It empowers Ch=C3=A1vez=E2=80=
=99s governing=20
coalition to use its slim majority in the legislature to obtain an=
=20
overwhelming majority of seats on the Supreme Court. The law also giv=
es the=20
governing coalition the power to nullify existing judges=E2=80=99 app=
ointments to=20
the bench.

Fact Check: The Venezuelan judicial impeachment process is virtually=
=20
identical to that in the United States (a process about which the=
=20
beltway-based Vivanco has been wholly silent for the entirety of his=
=20
career). No authentic democracy can survive without the checks and ba=
lances=20
that allow removal of court justices by Congress.

The United States constitution also provides for use of a "slim major=
ity"=20
to appoint Supreme Court Justices. (Remember the U.S. Senate battle o=
ver=20
the nomination of Supreme Court Judge Clarence Thomas? Only fifty-per=
cent=20
plus one vote was required to install him: the same exact process tha=
t the=20
hypocrite Vivanco attacks in Venezuela.).

With less than two months to go before the historic August 15th refer=
endum=20
(to recall or ratify the term of President Hugo Chavez: the voters wi=
ll=20
decide), Vivanco and Human Rights Watch's partisan political agenda s=
tands=20
naked. Instead of praising Venezuela for being the only country on ea=
rth=20
that allows citizens to recall their president, and that has recently=
 shown=20
its commitment to that process, Vivanco is throwing tomatoes at a pro=
cess=20
that, although it exists in many other countries including the United=
=20
States, he and his organization have remained totally silent about in=
 other=20
lands.

Impeachment of Supreme Court Justices is a vital right for any authen=
tic=20
democracy. As recently as this young century, the National Lawyers Gu=
ild=20
seriously considered a campaign to impeach the five U.S. Supreme Cour=
t=20
justices who appointed George W. Bush as president, ratifying a stole=
n=20
election.

As the quote from former President Ford, above, reveals, the right to=
=20
impeach U.S. Supreme Court justices for any "offense" that " of the H=
ouse=20
of Representatives considers it to be at a given moment in history." =
That=20
is how a system of checks and balances works. Vivanco has thus harmed=
 Human=20
Rights Watch's credibility around the world with this latest grandsta=
nding=20
maneuver.

National Lawyers Guild vice president Nathan Newman wrote of this pro=
cess=20
in the United States:

     In fact, over the course of American history, the House of=20
Representatives has impeached fifteen individuals, including two=20
Presidents, twelve judges, a senator, and a cabinet member. The Senat=
e has=20
convicted seven of the fifteen=E2=80=A6 Most were impeached for acts =
of personal=20
impropriety but a number of others have been impeached strictly for t=
heir=20
official conduct. The early history of the Republic saw a number of=
=20
politically-charged judicial impeachments.

Newman noted:

     It is relatively clear that the framers of the Constitution saw=
=20
impeachment as an important political check on the judicial branch.=
=20
Notably, judges were to serve during "good behavior" subject to=20
impeachment. During the Constitutional Convention, George Mason ignit=
ed the=20
debate about what should constitute an impeachable offense under the=
=20
Constitution. At first, the only proposed impeachable offenses were t=
reason=20
and bribery, but Mason believed that "attempts to subvert the Constit=
ution=20
may not be Treason" but should be recognized as an impeachable offens=
e.=20
Mason proposed that "maladministration" be added to the list of offen=
ses=20
but, after some debate, Mason replaced it with the phrase "other high=
=20
Crimes and misdemeanors." The delegates then passed that recommendati=
on=20
eight to three without further debate.

Newman also notes that William Taft, the only man to serve as both Ch=
ief=20
Justice of the Supreme Court and President of the United States, said=
:

     Under the authoritative construction by the highest court of=
=20
impeachment, the Senate of the United States, a high misdemeanor for =
which=20
a judge may be removed is misconduct involving bad faith or wantoness=
 [sic]=20
or recklessness in his judicial actions, or in the use of his officia=
l=20
influence for ulterior purposes. By the liberal interpretation of the=
 term=20
"high misdemeanor" which the Senate has given there is now no difficu=
lty in=20
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=20
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=20
Impeachments. When sitting for that Purpose, they shall be on Oath or=
=20
Affirmation. When the President of the United States is tried, the Ch=
ief=20
Justice shall preside: And no Person shall be convicted without the=
=20
Concurrence of two thirds of the Members present.

     Clause 7: Judgment in Cases of Impeachment shall not extend furt=
her=20
than to removal from Office, and disqualification to hold and enjoy a=
ny=20
Office of honor, Trust or Profit under the United States: but the Par=
ty=20
convicted shall nevertheless be liable and subject to Indictment, Tri=
al,=20
Judgment and Punishment, according to Law.

In plain English, that means that the U.S. House of Representatives m=
ay=20
vote to "impeach" (that is to say, to hold a kind of trial seeking re=
moval=20
of any federal official, including Supreme Court justices). The "tria=
l" is=20
held in the Senate. The Vice President presides over the impeachment =
of any=20
Supreme Court justice. The votes of two thirds of the senators presen=
t are=20
required to remove the justice.

In fact, the great democrat Thomas Jefferson and his supporters utili=
zed=20
this Constitutional process to impeach Supreme Court justice Samuel C=
hase=20
in 1804. Jefferson lost the vote in the Senate. And that is how the p=
rocess=20
works.

The same is true for Venezuela. The new provisions for impeachment of=
=20
Supreme Court justices are in the letter and spirit of Jeffersonian d=
emocracy.

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

Rising in rebuttal, courtesy of audio archives, I call my first witne=
ss:=20
President Franklin Delano Roosevelt of the United States, who valiant=
ly=20
tried to expand the number of U.S. Supreme Court justices. This testi=
mony=20
is from the transcript of Roosevelt's Fireside Chat radio program, on=
 March=20
9, 1937. Roosevelt had proposed the retirement of Supreme Court judge=
s at=20
the age of 70, and if any judge chose not to retire at 70, an additio=
nal=20
member would be added to the Court. For that, Roosevelt was accused o=
f=20
"packing" the Court:

     What is my proposal? It is simply this: whenever a judge or just=
ice of=20
any federal court has reached the age of seventy and does not avail h=
imself=20
of the opportunity to retire on a pension, a new member shall be appo=
inted=20
by the president then in office, with the approval, as required by th=
e=20
Constitution, of the Senate of the United States=E2=80=A6

     That plan has two chief purposes. By bringing into the judicial =
system=20
a steady and continuing stream of new and younger blood, I hope, firs=
t, to=20
make the administration of all federal justice, from the bottom to th=
e top,=20
speedier and, therefore, less costly; secondly, to bring to the decis=
ion of=20
social and economic problems younger men who have had personal experi=
ence=20
and contact with modern facts and circumstances under which average m=
en=20
have to live and work. This plan will save our national Constitution =
=66rom=20
hardening of the judicial arteries.

     The number of judges to be appointed would depend wholly on the=
=20
decision of present judges now over seventy, or those who would=20
subsequently reach the age of seventy=E2=80=A6

     Those opposing this plan have sought to arouse prejudice and fea=
r by=20
crying that I am seeking to "pack" the Supreme Court and that a banef=
ul=20
precedent will be established=E2=80=A6

     Is it a dangerous precedent for the Congress to change the numbe=
r of=20
the justices? The Congress has always had, and will have, that power.=
 The=20
number of justices has been changed several times before, in the=20
administrations of John Adams and Thomas Jefferson - both of them sig=
ners=20
of the Declaration of Independence - in the administrations of Andrew=
=20
Jackson, Abraham Lincoln, and Ulysses S. Grant.

It should be embarrassing enough to Human Rights Watch directors, mem=
bers,=20
and donors, that Vivanco now places the organization in direct histor=
ic=20
opposition to human rights heroes like Thomas Jefferson and Franklin =
Delano=20
Roosevelt. It's worse that he reveals complete ignorance on the true=
=20
provisions of Venezuela's judicial reform.

A simple Google News search would have unearthed Greg Wilpert's recen=
t=20
painstaking explanation, in clear English, of what the reform does an=
d does=20
not do:

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

     As if the confrontations over the recall referendum and the=20
paramilitary presence were not enough, pro-Chavez legislators have re=
cently=20
passed a highly controversial new Supreme Court law. Venezuela's 1999=
=20
constitution requires such a new law and also specifies that the enti=
re=20
judicial system is subordinated, not just procedurally, but also=20
administratively to the Supreme Court. Most of the law's 29 articles =
are=20
relatively uncontroversial. However, three provisions in the new law =
have=20
raised the opposition's ire.

     First, the new law increases the number of Supreme Court judges =
=66rom=20
20 to 32. The opposition says that such an increase is unwarranted an=
d that=20
it would allow Chavez and his supporters to pack the court all over a=
gain,=20
now that only half of the current judges appear to be sympathetic to =
the=20
government. Government supporters, however, argue that the current nu=
mber=20
of judges is insufficient for the case load of the court and that the=
=20
current number of judges corresponds to the old Supreme Court of the =
1961=20
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=20
simple majority, should three previous efforts to name judges with th=
e=20
constitutionally required two-thirds majority fail. Here the oppositi=
on=20
argues that this subverts the previous two-thirds majority requiremen=
t that=20
the earlier Supreme Court law had set, allowing the legislature to na=
me=20
judges with a simple majority. Pro-Chavez legislators point out, thou=
gh,=20
that given the current impasse in the nearly evenly divided legislatu=
re, an=20
escape hatch for naming judges must be found.

     Besides, naming judges by simple majority is not all that unusua=
l in=20
the international context. U.S. Supreme Court judges, for example, do=
 not=20
need more than a simple majority.

     Third, the new law allows the legislature to suspend judges who =
are=20
accused of wrong-doing, until a trial is held. Also, should a judge b=
e=20
found to have lied about fulfilling the pre-requisites for being name=
d a=20
judge, that judge's naming may be reversed with a simple majority vot=
e of=20
the legislature. Here the opposition argues that this provision makes=
=20
reduces the independence of judges because the legislature could thre=
aten=20
them with removal. This would certainly be the case if judges are nam=
ed who=20
do not fulfill all of the requirements set by the constitution or tho=
se who=20
commit a crime.

     However, this type of suspension or removal is not all that easy=
 in=20
that it depends upon the cooperation from another independent branch =
of the=20
state, the attorney general's office. In other words, it hinges upon =
just=20
how independent the judicial and the "moral"[3] branches are from eac=
h=20
other. Structurally, according to the constitution, these branches ar=
e=20
completely independent from each other, in that no other branch, such=
 as=20
the executive, can remove them at will.

     Given the opposition's suspicion of any action that will give th=
e=20
government an advantage, especially in the Supreme Court, which is on=
e of=20
the last state bastions (besides the National Assembly) where the=
=20
opposition still has an important share of power, it should not come =
as a=20
surprise that they would do just about anything to stop the law. As a=
=20
matter of fact, on several occasions the opposition organized exhaust=
ing=20
24-hour filibusters in their efforts to stop the law from passing.

     It is difficult to identify to what extent the opposition's resi=
stance=20
to the Supreme Court law is born of a real fear of Venezuela becoming=
 a=20
"constitutional dictatorship" and to what extent it comes from protec=
ting=20
their "turf."

Jos=C3=A9 Vivanco is either ignorant of United States law and the tru=
e=20
provisions of Venezuela law, or he is being dishonest enough to "play=
=20
along" with this latest smear campaign against Venezuela and its Boli=
varian=20
Constitution and democratically-elected government.

Vivanco and Human Rights Watch - a bureaucrat and an organization tha=
t both=20
went AWOL during the April 2002 coup d'etat in Venezuela: HRW, with a=
=20
cowardice that shall live in infamy, was completely silent on the abu=
ses=20
committed, crossing its fingers, hoping the coup would succeed, until=
 the=20
coup was over - would do better to invest their attention on real hum=
an=20
rights abuses in this hemisphere: the tortures in Guantanamo Bay, for=
=20
example, where the screams of the victims occur today and tonight, bu=
t=20
cannot be heard through Jose Vivanco's partisan earplugs.

Instead, Vivanco is in Venezuela today, attacking that country in kno=
wingly=20
false and inflammatory terms for doing nothing more or less than what=
 the=20
host government of Human Rights Watch has wisely done in its own land=
 for=20
more than two centuries. If HRW were doing its job according to its s=
tated=20
mission, it would be supporting the new provisions in Venezuela, and=
=20
instead using its multi-million dollar budget to call for the use of =
such=20
time-honored impeachment provisions in the United States to remove th=
e=20
justices that imposed a Court-Appointed torturer to that country's hi=
ghest=20
office.

Heard or not, the screams continue today from Guantanamo, from Colomb=
ia,=20
=66rom the cell of Pacho Cortes in Bolivia, and not to mention from I=
raq and=20
so many other torture chambers throughout the world. How low does Jos=
=C3=A9=20
Vivanco's cowardice go to further muzzle the sound of those screams b=
y=20
wasting his organization's time and money to create a media show acro=
ss the=20
Caribbean that only distracts from the real human rights crises in ou=
r=20
hemisphere?

If anyone should be impeached from a job of arbitor or judge of anyth=
ing in=20
our Am=C3=A9rica, it is Jos=C3=A9 Miguel Vivanco.
--=20
Macdonald Stainsby
http://lists.econ.utah.edu/mailman/listinfo/rad-green
In the contradiction lies the hope
=09=09--Brecht.


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