BRINGING THE JUDICIARY BACK IN: AN ANALYSIS OF THE IMPACT OF EXECUTIVE-JUDICIAL RELATIONS ON DEMOCRATIC INSTITUTIONAL STABILITY IN VENEZUELA by Lesley Martina Burns B.A. (Honours), University of Guelph, 1999 M.A., University of Guelph, 2001 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in The Faculty of Graduate Studies (Political Science) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) August 2009 © Lesley Martina Burns, 2009 ii ABSTRACT Using a method of process tracing based on in-depth elite interviews, this dissertation examines the relationship between presidentialism and the rule of law in Venezuela. It finds that the perils of presidentialism—minority government, coalitions, deadlock, term limits and fixed terms— lead to institutional instability when they interact with low rule of law. Institutional instability occurs when one branch of government threatens or attacks another. Instead of exploring regime level stability this dissertation argues that state level factors more accurately capture problems associated with democracy. Rather than focusing on executive- legislative relationships, as much of the literature does, I argue that the judiciary is an important determinant of democratic governance. This dissertation shows how an examination of executive-judicial relationships helps explain dynamics leading to institutional instability in presidential systems. Interviews revealed that institutional instability was associated with judicial non-independence in three periods of Venezuela’s democratic history. During the Punto Fijo era political parties supplanted state institutions that are necessary foundations for democracy; in the transition period the gravity of the problems of a non-independent judiciary became evident; and during the Bolivarian period, the interaction between a low rule of law and presidentialism led to institutional instability. An examination of the precarious executive-judicial relationship in Venezuela builds on previous studies of instability to provide a more complete account for the decline of a seemingly stable democracy. Specifically, it provides a case study of an unstable presidential democracy to show how presidentialism contributes to institutional instability when the rule of law is weak. Finally, the dissertation contributes to shifting the analytical focus of the democratization literature from regime to state. This shift in analysis shows that satisfying the minimal regime criteria for democracy, such as elections, is insufficient to ensure institutional stability, and perhaps continued democracy. For free and fair elections to be meaningful state institutions must be capable of restraining executive power. iii CONTENTS ABSTRACT ................................................................................................................................ ii CONTENTS ............................................................................................................................... iii LIST OF TABLES ...................................................................................................................... v LIST OF FIGURES ................................................................................................................... vi ACKNOWLEDGEMENTS ...................................................................................................... vii LIST OF ABBREVIATIONS .................................................................................................... ix CHAPTER ONE ......................................................................................................................... 1 Introduction ............................................................................................................................. 1 1.2 Key Hypotheses ................................................................................................................ 5 1.3 Data and Methodology ...................................................................................................... 7 1.4 Method of Investigation .................................................................................................... 8 1.5 Selection of the Case Study ............................................................................................ 10 1.6 Sources of Evidence ........................................................................................................ 18 1.7 Plan of the Dissertation ................................................................................................... 20 CHAPTER TWO ...................................................................................................................... 24 2.1 Evaluating Democratic Stability ..................................................................................... 24 2.2 The Regime State Distinction ......................................................................................... 25 2.3 Democracy Defined ........................................................................................................ 28 2.4 The Various Meanings of Instability in the Democratization Literature ........................ 33 2.5 How the State Upholds Fair Elections ............................................................................ 38 2.6 Stability in Parliamentary versus Presidential Systems .................................................. 42 2.7 Quality of Democracy ..................................................................................................... 52 2.8 Conclusion ...................................................................................................................... 58 CHAPTER THREE .................................................................................................................. 60 3.1 The Rule of Law and Democratic Stability .................................................................... 60 3.2 The Rule of Law ............................................................................................................. 61 3.3 Existing Measures Related to the Rule of Law ............................................................... 63 3.4 Judicial Independence ..................................................................................................... 72 3.5 The Formal – Informal Divide ........................................................................................ 83 3.6 Conclusion ...................................................................................................................... 85 CHAPTER FOUR ..................................................................................................................... 87 4.1 Institutional Sources of Instability in Venezuelan Democracy ....................................... 87 4.2 Venezuela’s Pacted Democracy: 1958-1988 .................................................................. 92 4.3 The Functioning of the Judicial System 1958 to 1988 ................................................... 97 4.4 Decade of Transition: 1989-1998 ................................................................................. 107 4.5 The Judiciary in the Transition Years 1989-1998 ......................................................... 108 4.6 Judicial Reform Attempts in the Transition Years ....................................................... 114 4.7 Chávez as a Consequence of Dissatisfaction with the Previous System: 1999-2007 ... 118 4.8 The Bolivarian Revolution ............................................................................................ 120 4.9 Conclusion .................................................................................................................... 121 CHAPTER FIVE .................................................................................................................... 123 5.1 Using a Popular Mandate to Reinvent Political Institutions ......................................... 123 5.2 Referendum Circumvents Congressional Minority ...................................................... 125 iv 5.3 Using the Judiciary to Introduce a Constitutional Assembly ........................................ 131 5.4 Structure of the Venezuelan Government under the 1999 Constitution ....................... 150 5.5 The Venezuelan Judicial System .................................................................................. 151 5.6 Stronger Executive, Weaker Judiciary .......................................................................... 154 5.7 The 2000 Elections ....................................................................................................... 160 5.8 Conclusion .................................................................................................................... 162 CHAPTER SIX ....................................................................................................................... 165 6.1 From Polyarchy to Boliarchy ........................................................................................ 165 6.2 Centralizing the Administration of Justice into the Supreme Court ............................. 168 6.3 The Derailment of Constitutional Order ....................................................................... 176 6.4 Political Deadlock Provokes Court Expansion ............................................................. 181 6.5 Court Decision Revises Electoral Rules Retrospectively ............................................. 185 6.6 Popular Mandate Used to Override Institutional Framework ....................................... 190 6.7 Irregularities in the Supreme Court Expansion ............................................................. 196 6.8 The Government Builds Support Prior to Recall Referendum ..................................... 201 6.9 Conclusion .................................................................................................................... 205 CHAPTER SEVEN ................................................................................................................ 207 7.1 Discontent with the Ruling Government ...................................................................... 207 7.2 Alienation of the Opposition ......................................................................................... 209 7.3 Political Persecution of Opponents ............................................................................... 213 7.4 The Electoral System and How to Access Power ......................................................... 219 7.5 The Presidential Election 2006 ..................................................................................... 233 7.6 The Five Motors of the Revolution ............................................................................... 235 7.8 Surmounting Term Limits ............................................................................................. 240 7.9 The Referendum on Constitutional Change 2007 ......................................................... 244 7.10 Conclusion .................................................................................................................. 247 CHAPTER EIGHT ................................................................................................................. 249 8.1 Conclusion .................................................................................................................... 249 8.2 Rule of Law and Judicial Independence ....................................................................... 250 8.3 The Perils of Presidentialism ........................................................................................ 252 8.4 Democratic Regime and Democratic State ................................................................... 257 References ............................................................................................................................... 260 Glossary of Key Concepts ...................................................................................................... 287 v LIST OF TABLES Table 1: Relationship between the Perils of Presidentialism and Rule of Law .............................. 7 Table 2: Rule of Law and Stability for Latin American Countries 1996-2002: Compared with Global Averages............................................................................................................................ 12 Table 3: Rule of Law and Stability for Latin American Countries 1996-2002: Comparison with Latin American Averages. ............................................................................................................ 12 Table 4: Public Perception of Institutions in Latin America ........................................................ 67 Table 5: Concentration of MVR Candidates Elected in the Constituent Assembly Election 1999 ..................................................................................................................................................... 140 Table 6: Deputies of National Assembly 2006-2011 .................................................................. 226 vi LIST OF FIGURES Figure 1: Venezuela Freedom in the World Scores 1973-2007 .................................................... 15 Figure 2: Rule of Law in Venezuela 1996-2007 ........................................................................... 16 Figure 3: Instability of Presidentialism ......................................................................................... 50 Figure 4: Perception of the Venezuelan Supreme Court 1999 – 2006 ......................................... 68 Figure 5: Constellation of Presidential Powers in Relation to the Judiciary in Latin America. ... 83 Figure 6: Paths from Minority Government to Constitutional Assembly................................... 131 Figure 7: Government of the Bolivarian Republic of Venezuela ............................................... 151 Figure 8: Venezuelan Judicial System ........................................................................................ 153 Figure 9: Supreme Court Case Loads by Chamber 2000-2006 .................................................. 197 Figure 10: MaiSanta Database .................................................................................................... 211 vii ACKNOWLEDGEMENTS This dissertation would not have been possible without the help of many people. I would like to start by thanking my supervisory committee. My research supervisor Maxwell A. Cameron was a source of constant attention to detail his ability to maintain a focus on the big picture is worthy of praise. Lisa MacIntosh Sundstrom for her constant reassurance and encouragement and Mark Warren for his ability to formulate seemingly disjointed ideas into concrete concepts. Also, Campbell Sharman provided great legal insight and deserves special thanks for his ability to break things down into manageable parts. I thank Brian Job, Mark Zacher, for providing much needed encouragement and direction throughout my entire time at UBC. I also greatly appreciate encouragement from Barbara Arneil, Kathryn Harrison, Diane Mauzy, and Benjamin Nyblade. Stephanie Keane, Tania Keefe, Philip Orchard, Raul Pancheco-Vega and Glenn Wagner deserve particular recognition for their dedication as friends; for their constant support and encouragement; and for their editing skills. Without them this project would never have been completed. I would also like to thank Colin Green, Tessa Matsuzaki, Ashish Misquith and Keith Powell who provided endless encouragement in the final stages of the project. I benefitted greatly from insights and direction from Andres Mejia Acosta and Pablo Policzer both during their post-doctoral fellowships at UBC and beyond. My colleagues at UBC in the early years, Michael Bluman Schroeder, Rita Dhamoon, Peter Ferguson, Jamie Gillies, Scott Matthews, Fiona MacDonald and Karin Yueng. And the later years, Shane Barter, Amanda Benjamin, Nicolas Dragojlovic, Catherine Hecht, Royce Koop, Clare McGovern, Rebecca Alegría Monnerat McPartlin, Freddy Osorio-Ramirez, and Netina Tan all provided many insightful comments on drafts of the dissertation. Peter Loewen provided valuable advice in my preparation for the final defense. My work benefitted greatly from my experience working with Tom Legler. I had the pleasure of working with Tom on a Social Sciences and Humanities Research Council funded project on transnational dimensions of democracy. Through this project I had the honour of meeting an inspirational group of young scholars. Additionally, through his previous network of contacts Tom helped me get oriented in Venezuela. I would also like to thank Daniel Hellinger for sharing his experience in Venezuela with me. During my time in Venezuela Ambassador Renate Wielgosz, and Vicken Koundakijan from the Canadian Embassy in Caracas provided great support, assistance making contacts and above all encouragement. This dissertation would not have been possible with the inspiration and mentorship of Paula Fedeski-Koundajian. Many people provide endless sources of encouragement, advice and guidance in Venezuela. I an unable to name several of these people directly, but their support and encouragement have not gone unnoticed. Of those who have agreed to be recognized, Gerardo Gonzales was source of great encouragement, friendship and inspiration. His dedication to democracy in Venezuela is nothing short of admirable. I am indebted to Daniel Mogollón Muñoz, for his help in orienting viii me politically, and helping me to understand the more complicated aspects of Venezuelan democracy and to Maggi Dilena for her help me navigate the Venezuelan legal system and make valuable contacts. Dani and Maggi not only supported my research and helped me make contacts they were also wonderful friends who enriched my time in Venezuela. I greatly benefited from Graham Dick’s generosity. He opened many doors and shared his years of experience working in Venezuela. I would also like to thank Henry Larrarte, Milko Luis González, Heidi Russell, Alfredo Toro and Luis Quintana for their assistance and for the many debates which kept me thinking and constantly sharpening my understanding. Several institutions in Venezuela provided helpful assistance. The Instituto de Estudios Superiores de Administración kindly granted me visiting research status and provided me with an incredible working environment. The faculty and staff were a great assistance at many stages of my research. Through my research affiliation with IESA I met many students who helped me to understand their country, many of whom also assisted me in making valuable research contacts. My understanding of the Venezuelan constitution was greatly improved through my participation in the Constitutional Law course taught by Hermann Escarrá at Universidad de Santa María. Professor Escarrá and my classmates were very helpful. They contributed to my understanding the both the constitution and on how the judicial system functioned. I also learned a great deal in a course on the Bolivarian Constitution at the Universidad Bolivarian de Venezuela. I am grateful to both universities for allowing me to participate in these courses. Last, but certainly not least, I am grateful to the members of the Venezuelan judicial system who went out of their way to explain the Venezuelan judicial system to me and for sharing their thoughts and insights on the changes occurring in their country, for sharing their emotionally charged experiences. Those who seek a more equitable system based on the equal application of the law have been a constant source of inspiration. ix LIST OF ABBREVIATIONS Abbreviation Spanish English AD Acción Democrática Democratic Action Party CEJ Comisión de Emergencia Judicial Judicial Emergency Committee CNE Consejo Nacional Electoral National Electoral Council CONATEL Comisión National de Telecomunicaciones National Telecommunication Commission COPEI Comité de Organización Política Electoral Independiente--Partido Social Cristiano Committee of Independent Electoral Political Organization—Social Christian Party COFAVIC El Comité de Familiares de las Víctimas del 27 de febrero The committee of Families of the Victims of 27 February CJ Consejo de la Judicatura Judicial Council COPRE Comisión Presidencial para la Reforma del Estado Presidential Commission for State Reform CSJ Consejo Supremo Judicial Supreme Court, Prior to 1999 CTV Confederación de Trabajadores de Venezuela Federation of Trade Unions of Venezuela DEM Dirección Ejecutiva de la Magistratura Executive Director of the Magistrate FEDECAMARAS Federación de Cámaras y Asociaciones de Comericio y Producción de Venezuela Federation of Chambers of Commerce and Production of Venezuela GC Grupo Convergencia Convergence Group IESA Instituto de Estudios Superiores de Administración Institute for Graduate Studies in Administration IPCN Independientes para la Comunidad Nacional Independents for the National Community LOTSJ Ley Orgánica del Tribunal Supremo de Justicia Organic Law of the Supreme Court MAS Movimiento al Socialismo Movement Toward Socialism MB-200 Movimiento Bolivariano Revolucionario 200 Bolivarian Revolutionary Movement 200 MVR Movimiento Quinta República Fifth Republic Movement OEA/OAS Organización de los Estados Americanos Organization of American States PCV Partido Comunista de Venezuela Venezuelan Communist Party PDVSA Petróleos de Venezuela Sociedad Anónima Venezuela Oil Company, Incorporated PP Polo Patriótico Patriotic Pole PPT Patria Para Todos Homeland for All x PROVEA Programa Venezolano de Educación-Acción en Derechos Humanos Venezuelan Education Program for Action in Human Rights RCTV Radio Caracas Televisión Caracas Radio and Television TSJ Tribunal Supremo de Justicia Supreme Court URD Unión Republicana Democrática Democratic Republican Union 1 CHAPTER ONE1 1.1 Introduction When leaders undermine the institutions intended to act as checks on their power, they may compromise the quality, stability or survival of democracy. Although the threat of a full regime breakdown from democracy to dictatorship has become less common among third wave democracies, threats to the continuation of quality democratic governance2 come from political instability,3 institutional instability,4 democratic crises5 and presidential interruptions.6 In Latin 1 Primary research for this dissertation was collected while I was a visiting Research Fellow at the Instituto de Estudios Superiores de Administración (IESA) in Caracas, Venezuela in 2005–2006.To protect the identity of the interviewees, in compliance with the University of British Columbia’s ethics guidelines, all interviews are identified by a sequence of numbers, the order of which has been assigned randomly. 2 I have intentionally used the term quality of democratic governance to avoid conceptual confusion with the phrase quality of democracy. This dissertation contributes to the quality of democracy literature, but seeks to conceptually differentiate from the existing literature on quality of democracy. It does so to avoid the normative assumptions inherent in this body of literature. A more comprehensive explanation of how this research relates to the quality of democracy literature is provided in chapter two. 3These terms are interrelated and the conceptual overlap makes them difficult to measure as separate variables. For the sake of consistency, every attempt is made to clearly define their exact meaning. Political instability is used in different ways in the literature. It can mean the presence of violence and protest (Schneider and Frey, 1995; Karl, 1997); or, political instability can also refer to the perceptions of the likelihood that the regime will break down, including the presence of protests, as it is measured by the World Bank Institute (World Bank, 2002; World Bank, 2007). It is used throughout this dissertation to refer to political protests, violence and riots. 4Democratic institutional instability is present when “one or more branches of government issued a threat or carries out an attack against another branch or branches” (Helmke, 2008, p.10). There is blurring of categories between how scholars evaluate different forms of instability. For example, a threat or attack by one branch on another could lead to regime breakdown (as in a transition between democracy and dictatorship). Likewise, such a threat or attack could either be the result of political instability, or it could cause political instability in the form of protests and violence. In part, this overlap between concepts comes from a tendency to confuse a contributing factor with the variable we seek to evaluate. To avoid conceptual confusion I have made every attempt to clarify the exact meaning. 5 A democratic crisis is said to occur when there has been “unconstitutional alteration of the constitutional regime,” autogolpes and the suspension of constitutions. See for example: (Articles 19 and 20, section IV, “Strengthening and Preservation of Democratic Institutions” Lima, Peru September 11, 2001; and Cooper & Legler, 2001, Boniface, 2007). 6Presidential interruptions occur when a president “leaves or is forced to leave, the presidency before the end of the constitutional term” (Marsteintredet & Berntzen, 2008, p83). Examples of attempts to remove presidents from office before their terms have ended include: Argentina (1989, 2003); Bolivia (1984, 2001, 2003, 2005-Mesa & Rodríquez) Hati (1991, 2004); Ecuador (1997, 2000, 2005); Brazil (1992); Colombia (1996); Paraguay (1996, 1999, 2003); Peru (1991, 2000); Guatemala (1993); Venezuela (February 1992, November 1992, 1993, 2002, 2004). 2 America presidents have been prematurely removed from office through coups, forced resignations, and court rulings. The early termination of a president’s term in office is often the result of the above mentioned threats and these methods tend to be more destabilizing than the parliamentary equivalent of a vote of no confidence. In other cases, presidents have successfully changed term limits to extend their time in office. The extension of term limits can be problematic when the methods used to do so weaken the institutions that are designed to keep democracy in check. For example, Venezuela’s Hugo Chávez relied on popular support for change, demonstrated through elections, to dismantle the existing political institutions. He claimed to be representing the will of the people while simultaneously diminishing the ability of institutions to check his power. Although his revolutionary agenda offers the promise of greater participation, governing institutions have not been institutionalized. When the democratic institutional structure in place to ensure that leaders abide by the rules is destroyed, how do societies keep their leaders’ power in check? This situation presents a tension between the popular will of citizens and the institutions intended to ensure continued democracy. Until recently the literature on democratic stability focused on regime breakdown—or on the transition between democracy and non-democracy (most often dictatorship) (Linz, 1978; 1990; Stepan & Skach, 1993; Cheibub & Limongi, 2002; Cheibub, 2002; 2007; Przeworski et. al. 2000; and Mainwaring, 1997). In adopting a regime focus, this body of literature is unable to explain the emergence of presidents who once elected, systematically undermine democratic institutions. In an attempt to explain how political instability and breakdown emerge numerous studies have found that presidential systems are more prone to such problems than parliamentary systems (Bunce, 2000; Stepan & Skach, 1993; Cheibub & Limongi 2002; Cheibub, 2002; Przeworski, 2000; Lijphart, 2000). There is no clear explanation why this is the case: some 3 scholars attribute the difference in regime survival to systemic factors present in parliamentary democracies and absent in presidential democracies (Stepan & Skach, 1993). Others have stated either that the correlation between regime type and survival is spurious (Mainwaring, 1997); that it has nothing to do with constitutional principles; or that it is based on the conditions under which presidentialism was adopted (for example the legacy of military interventions) (Cheibub, 2007). These studies approach the question from a variety of methodological perspectives; despite this diversity they focus almost exclusively on executive-legislative relationships within presidential and parliamentary systems. This focus is justified by an important difference between the two systems and how these systems derive their legitimacy. Presidential systems are based on dual legitimacy because the legislature and the executive are elected separately, while in parliamentary systems the executive requires the support of, and is selected by, the legislature.7 With the dual claim to legitimacy, when conflicts arise between the executive and legislature in presidential systems, the conflicts tend more often to lead to constitutional crisis, institutional challenges or to severe breakdown in government. The infrequency of full regime breakdown and the tendency for leaders to erode institutions once elected has led some scholars to consider other factors, short of full breakdown, that impact the quality of democracy. Some examples of studies the look at this new form of instability focus on interrupted presidencies through coups, impeachment, incapacity and resignation (Marsteintredet & Berntzen, 2008; Pérez-Liñán, 2007; Valenzuela, 2004), democratic crises (Cooper & Legler, 2001; Boniface, 2007), and broader measures of instability (Przeworski et al. 2000; Kaufmann, Kraay & Matsruzzi, 2007; Helmke, 2008). Scholars mean a variety of 7 For an elaboration of the relationship between the legislature and the president and their ability to remove one another see: (Pérez-Liñán, 2005; Baumgarner & Kada, 2003; and Stepan & Skach, 1993). 4 different things when they look at instability; these range from protests and general unrest to attempts to overthrow elected leaders or entire political regimes, the various uses of this term are fully elaborated on in Chapter Two. Briefly, when focusing on the state level, instability comes predominantly from institutional instability (Helmke, 2008; Pérez-Liñán; 2007; and Valenzuela, 2004). For the purpose of this dissertation institutional instability means a threat or attack by one branch of government on another. It offers a word of caution on the more general notion of political instability because protests, which have been used as a sign of instability, can be a signal of the electorate’s ability to express dissatisfaction, and therefore, as an indicator of a healthy democracy.8 A full explanation of how instability is operationalized and how this definition differs from others used in the discipline is provided in Chapter Two. The most important distinction to be made is that rather than focusing on the complete transition from democracy to dictatorship, I am more interested in forms of institutional instability, or the ability of one branch of government to threaten or attack another. The literature that looks at the interaction between different branches of government has tended to focus on executive-legislative relations and has tended to overlook the importance of the third branch of government: the judiciary. A number of recent studies of democratic instability point to the important role that the rule of law plays (Alexander, 2002; Bunce, 2000; Carothers, 1998; Chávez, 2005; Diamond, 1999; Domingo, 2005; Hartlyn, 1994; Larkins, 1996, 1998; O’Donnell, 1994, 1999, 2001; and Zakaria, 2004). Although these studies employ different ways to measure and evaluate the rule of law, put simply, the rule of law is 8 This does not dismiss the fact that high levels of violence are less likely to occur in democratic countries. 5 characterized by the supremacy of law over the will of individuals. In related research,9 other scholars look specifically at the importance of and the capacity of independent judiciaries to uphold the rule of law, and thus, at how judicial independence contributes directly to upholding democracy (Larkins, 1996, 1998; Weingast, 1997; Smithey & Ishmiyama, 2000; Helmke, 2002; Iaryczower, Spiller & Tommasi, 2002; Maravall & Przeworski, 2003).10 This body of research suggests that the judiciary may play a unique role in presidential regimes. As recent Latin American events have shown, executive attempts to control the judiciary can also lead to institutional or political instability: for example, a questionable court expansion led to Lucio Gutierrez’s demise in Ecuador (2005); Hugo Chávez’s (2004) Supreme Court expansion provoked accusations of politicization in Venezuela; and likewise Carlos Menem’s (1990) questionable expansion of the Argentinean Supreme Court invited unrest. These events point to the critical role that the rule of law and judicial independence play in ensuring many forms of democratic stability, a role that we ignore if we study only the executive and the legislature. 1.2 Key Hypotheses I hypothesize that in presidential systems a low respect for the rule of law undermines institutional stability. The dissertation explores how presidentialism and judicial non independence contribute to institutional instability in Venezuela between 1958 and 2007? 9 In the next chapter I posit that the two concepts are interrelated and justify my choice to focus on judicial independence as the main component of the rule of law. 10 As Helmke (2000) highlights, over one-hundred and fifty years ago Alexis de Tocqueville noted the importance of the judiciary for the American democratic system “there is hardly a political question in the United States which does not sooner or later turn into a judicial one” ( 1969, p. 270 quoted in Helmke, 2000, p.1). 6 The central goal of this dissertation is to analyze how the rule of law interacts with the perils of presidentialism—minority government, deadlock, coalitions, term limits, and fixed terms—to cause institutional instability in Venezuela. Although these perils were introduced in the context of a study on regime breakdown, this dissertation seeks to determine if these five perils also affect state level variables such as institutional instability, a concept that is explored in greater depth in Chapter Two.11 The perils of presidentialism are interrelated and will have different outcomes depending on the level of rule of law. Table 1 provides the hypothesized relationship between these five perils at high and low levels of rule of law. Whereas at high levels of rule of law these perils can be ameliorated, at low levels of rule of law they contribute to institutional instability. The stability of presidential institutions is compromised by minority governments, which can easily lead to a condition of political deadlock. Deadlock can be overcome legally through the formation of coalitions or illicitly through negotiation or pork barrel deals. When rule of law is high, the government is likely to find peaceful and legal means of resolving deadlock. When the rule of law is low, however, there is a tendency to form questionable or secret coalitions, or governments can use force to get their way. Such behaviour can result in institutional instability. The propensity for institutional instability increases when fixed terms and term limits complicate the removal of leaders. Therefore, to end unpopular presidencies, actors have often been pushed to unconstitutional measures. The reverse of this is also true and when the rule of law is low, leaders can try to overcome barriers to their leadership by extending their terms. Although not inherently undemocratic, there is a tendency for this to occur through the threat or 11 Not all of these perils will contribute to instability in the same way. To be specific, coalitions can instead be the answer to potential problems of stability when minority governments use them to overcome deadlock situations. 7 attack on another state institution. In this way, this dissertation hypothesizes that the perils of presidentialism can contribute to institutional instability. Table 1: Relationship between the Perils of Presidentialism and Rule of Law 1.3 Data and Methodology Of the many methods available in political science, from large-n quantitative to small-n or single case studies, the most effective way to determine the relationship between low rule of law and institutional stability in presidential democracies is through a single case study. Large-n quantitative studies are useful to determine patterns and correlations, but such studies do not allow for in-depth analysis of relationships between variables. Therefore, it is inappropriate to Minority Government Coalition Deadlock Fixed Terms Term Limits High rule of Law Coalitions can be formed or governments can rule with a minority. Successful coalitions built on respected agreements. Often avoided through coalitions. To end a president’s term early, impeachment is more likely when there is a respectable and functioning judicial system. Terms are respected and presidents rule until the end of their terms. Low rule of Law Institutional instability can emerge when governments seek legally questionable means to pass their agendas with minority governments, or to overcome minorities in legally questionable ways. Coalition agreements can be informal or based on legally questionable deals, enforced by violence and other non- legal mechanisms. With few consequences for actions, deadlock can be overcome through legally questionable means or through force. When the law is not respected, presidents can misuse their power with few consequences. There are limited means of removing unpopular presidents, even when they are not serving the public interest. Attempts to remove presidents unconstitutionally have led to institutional instability. Leaders have resorted to questionable methods of extending term limits. They have abused their time in office because they cannot be awarded with reelection. 8 use this method to shed greater light on a causal relationship. Qualitative indicators are used here to establish a trend and to develop the hypothesized relationship between variables. Previous quantitative work has established the empirical irregularity that presidential democracies are more unstable when rule of law is low; this dissertation takes the next step toward determining why this discrepancy exists, and toward understanding the ways in which presidential systems are more unstable. Although quantitative data is suggestive in many ways, process tracing gives a better illumination of the true relationship between different concepts. Case studies are a useful means of determining why a hypothesis is supported because they expose the mechanisms at work (Van Evera, 1997) and they help to build in-depth knowledge and give insight into causal processes (Collier 1999). Specifically, Van Evera (1997) states, “inferring and testing explanations that define how the independent causes the dependent variable are often easier with case-study than large-n methods” (1997, p. 54 emphasis in original). Case studies not only allow for the development of valuable descriptive insight into political phenomena, but, in conditions where researchers have little prior knowledge, case studies help suggest important missing variables (Munck, 2004). Quantitative methods cannot account for spurious causation, therefore, what appears to be a causal relationship between two variables could be caused by an unrelated or unaccounted for variable. Case study methodology, in contrast, eliminates doubt that causality exists through its detailed account of interrelationships. The cost of such detailed analysis is that the finding may be unique to the case being studied. 1.4 Method of Investigation The most effective way to trace out causal relationships within case study methodology is to use process-tracing. In general, process-tracing is used to “identify the intervening causal process— 9 the causal chain and causal mechanism—between an independent variable (or variables) and the outcome of the dependent variable” (George & Bennett, 2005, p. 206). This dissertation started by pointing to a correlation, which established quantitatively that presidential systems not only had higher levels of instability and lower respect for the rule of law, but also tended to be more unstable than parliamentary systems even at equally low levels of rule of law. From this data, a modification of previous theories is offered.12 Although previously collected data identified when a country was classified as unstable, or had a low rule of law, it tells us little about the exact circumstances that cause different forms of instability and low rule of law or the relationship between them. Having established the notion of correlation between system type and instability, we can use process tracing to test whether the theoretically proposed explanation is consistent with the quantitative evidence presented. This combination of qualitative and quantitative evidence will allow for the further specification of the theory (Hall, 2003; Dessler, 1991). Process tracing does this because it allows us to “search for evidence about the causal mechanism that would give plausibility to the hypotheses they are testing. If this evidence suggests that a similar mechanism produced or prevented the outcome in each case, this constitutes evidence for causal homogeneity” (Munck, 2004, p. 110). Therefore, if the same causal mechanism is identified as a catalyst of an outcome in different cases, this mechanism is likely to be the cause of the outcome. Furthermore, this method “enables the analyst to identify causal links within the context of a single case” (Elman & Elman, 2001 p. 30, emphasis in original). Process tracing is most commonly used to track how “initial conditions are translated into outcomes…” (Van Evera, 12 As Munck (2004, p.199) asserts, we need ongoing interaction with the data for theory reformulation and development. Additionally, Munck notes that to test a claim we must go beyond the data used to generate the correlation (Munck, 2004, p. 119). 10 1997, p. 52). In the context of the present study, this method is used to illuminate how the rule of law contributes to democratic stability in presidential regimes. After determining the causal mechanisms in the case of Venezuela, future research can apply these findings to other countries to test their generalizability. 1.5 Selection of the Case Study Having established that a case study is the best means of answering the theoretical puzzle, the choice of case was based on the country that offers the best laboratory within which to study the relationship between low rule of law and institutional instability. When studying democracies, the methods for evaluating the rule of law and institutional stability are interrelated although they measure two distinct phenomena. Indicators used to evaluate the rule of law, defined as the supremacy of law over the will of individuals, generally seek to evaluate if leaders follow the legal codes set out in their countries. Institutional stability indictors look at threats or attack by one branch of government on another.13 These concepts will be further developed in the next chapters. To determine the best case to evaluate the relationship between the rule of law and stability, this dissertation began with the country rankings from the World Bank Institute’s measures of rule of law and political stability.14 Since breakdowns occur less frequently some scholars have used political stability as a proxy, other scholars have sought to refine the 13 As a study of threats and attacks on other branches, institutional instability is related to the notion of horizontal accountability—defined as “the controls that state agencies are supposed to exercise over other state agencies” (O’Donnell, 1999, p. 185). Horizontal accountability can prevent or defend against the likelihood that one government body will encroach on another, and in that sense could fortify against executive encroaches on the judiciary. A full explanation of stability and the rule of law are provided in chapters two and three respectively. 14 Although the World Bank Institute’s measures are not void of subjectivity they are considered adequate for social science inference (See: Cameron, Blanaru and Burns, 2008; Kunicová and Rose-Ackerman 2006; Kunicová 2005; Gerring and Thacker 2004; Andrews and Montinola 2004). 11 identification of this concept through the development of quantitative indicators to measure institutional instability, but to date there is little research in this area;15 therefore, for the purpose of comparing cases political stability can be used as a proxy indicator. Accepting that there is skepticism surrounding the World Bank Institute’s indicators, they are used here as a means of comparing different countries in order to provide context.16 To compare across cases political stability and rule of law scores were considered separately and averaged for the entire sample of 84 countries. Then the region was isolated and only the scores of Latin American counties were evaluated. In Latin America the issue of presidential abuse of power has a major impact on democratic stability at the regime and state levels. The countries were divided based on whether they fell above or below the average. In Latin America, Chile, Uruguay, Panama and Costa Rica have above average rule of law and stability scores (Table 2). Argentina has a high rule of law score but a low stability score. Brazil, Bolivia, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua and Venezuela score low on both rule of law and political stability. When region is controlled for, and only the scores for Latin American countries are considered (Table 3), the same calculations yield only a few minor changes. Specifically, Brazil switches from below to above average on both indicators; Argentina moves from low to high stability, and El Salvador moves to high stability while maintaining low rule of law. In comparison to the global average, the Latin American region has a lower score on both democratic stability and the rule of law.17 15 One notable exception is the work of Gretchen Helmke (2008) who is in the process of developing one such database. 16 A more complete analysis of the World Bank Institute’s indicators is provided in Chapter Three along with a justification for why they are not being adopted outright. 17 When the global dataset is considered the average rule of law is 54.1 and the average political stability score is 54.4. When Latin America is considered (excluding the Caribbean) the averages become 45.5 and 45.3 respectively. This suggests that Latin America has a lower than average level of political stability when compared with the global dataset. These are crude measurements of stability and rule of law but qualitative analysis will add greater insight 12 Table 2: Rule of Law and Stability for Latin American Countries 1996-2002: Compared with Global Averages.18 Table 3: Rule of Law and Stability for Latin American Countries 1996-2002: Comparison with Latin American Averages.19 Rule of Law High Low St a bi lit y High Chile Uruguay Brazil Costa Rica Panama El Salvador Low No Latin American Cases Bolivia Nicaragua El Salvador Peru Ecuador Venezuela Honduras Colombia Guatemala into how they affect democracy. Moreover, this analysis will reveal the components of rule of law important for democratic stability. The use of dichotomous variables can oversimplify the degree of stability or rule of law because, for example, a country that scores only slightly above average is lumped in with the most stable and vice versa. This method identifies that Venezuela is the lowest scoring nation in Latin America on both rule of law and democratic stability. 18 This table was created by the author. Rule of law and political stability scores were taken from the “Governance Matters III: Governance indicators for 1996-2002” (World Bank, 2002)Scores for each variable were obtained for 1996, 1998, 2000 and 2002 and each country’s score was averaged. Countries were ranked as high on low depending on if they fell above or below the average. At the time of case selection this was the most recent data available. In this context the data was used as a means of establishing the most appropriate case it is not methodologically necessary to update this section to include the data released in 2008. 19 This table was created by the author. Rule of law and political stability scores were taken from the “Governance Matters III: Governance indicators for 1996-2002” (World Bank, 2002). This table takes the averages of counties in Latin America. Scores for each variable were obtained for 1996, 1998, 2000 and 2002 and each countries score was averaged. Countries were ranked as high on low depending on if they fell above or below the average. Rule of Law High Low St a bi lit y High Panama Uruguay Chile Costa Rica No Latin American Cases Low Argentina Bolivia Nicaragua El Salvador Peru Ecuador Venezuela Honduras Colombia Brazil Guatemala 13 Although this dissertation uses a single country study, it relies on what King, Keohane and Verba call “multiple observations at different levels of analysis” (1994, pp. 208-230). Meaning, the dissertation relies on empirical evidence from different time periods and at different levels of analysis including regime, state and government. The single country study allowed for context sensitive and in-depth qualitative research that led to a deep understanding of the relationship between the judiciary and the executive and how this relationship affected democratic stability. 1.5.1 The Choice of Venezuela: Venezuela was previously considered to be a text book example of democracy; yet, the exclusionary nature of the Punto Fijo period invoked political instability in the form of social unrest, resulting in the population’s rejection of the Punto Fijo system. This system was accused of having high levels of institutional politicization and societal exclusion. Despite the end of pacted democracy, high levels of institutional politicization and societal exclusion continue. Therefore, this dissertation allows for an examination of the relationship between the executive and the judiciary through pacted democracy and Bolivarian democracy.20 Previously a beacon of democracy in a region with a high number of interrupted presidencies and military coups, the survival of Venezuela’s democratic regime, which was established by pact in 1958, became threatened in the late 1980s with the emergence of societal unrest directed at the political system. Existing explanations attribute the high level of instability to the pacted democracy, the economy and to presidentialism. The key question here is: if presidentialism caused instability, why did it not do so in the period 1958 to 1988? 20 Thus, Venezuela can be considered an “extreme case” for example, one that has variation on the outcome of interest. Gerring (2001) stated that, extreme cases are most useful when the phenomenon being examined is difficult to operationalize, and that they serve well to explain a “complex causal relationship at work” (Gerring, 2001, pp. 215 - 217). 14 This dissertation contributes to our understanding of the instability in presidential systems by tracing the impact of executive-judicial relations on institutional stability in three separate time periods.21 Whereas between 1958 and 1988 Venezuela had a stable democratic regime, political violence that erupted between 1989 and 1998 led scholars to conclude that economic factors and the fall of the pact that maintained democracy had caused instability. During this time in Venezuela political instability and an erosion of rule of law had a negative impact on democracy.22 Freedom House, as shown in Figure 1, ranks Venezuela as almost consistently free in both civil and political categories from 1973 until 1999. 23 While freedom levels in Venezuela began trending downwards in the late 1980s, after 1999 the lowered combined political rights and civil liberties scores meant that the country became classified as ‘partly free’. According to Freedom House’s definition, countries ranked as ‘partly free’ are not democratic. Although 21 These periods were determined based on a qualitative overview of events that will be further explained in Chapter Four. An inconsistency in the quantitative data prohibited it from delineating years to study. 22 By looking at the traits of a democracy this dissertation speaks to the literature on the quality of democracy. By quality of democracy this dissertation refers to “good democracy accords its citizens ample freedom, political equality, and control over public policies and policy makers through the legitimate and lawful functioning of stable institutions. Such a regime will satisfy citizen expectations regarding governance (quality of results);it will allow citizens, associations, and communities to enjoy extensive liberty and political equality (quality of content); and it will provide a context in which the whole citizenry can judge the government's performance through mechanisms such as elections, while governmental institutions and officials hold one another legally and constitutionally accountable as well (procedural quality)” (Diamond & Molino, 2004, p.21). This definition is based on an extensive survey of the literature that uses the term ‘quality of democracy.’ The central focus on the dissertation is not on contributing to the quality of democracy literature, but to the more nuanced literature on institutional stability—but it recognizes that the concepts are inherently linked by the very fact that they strive to identify components that improve democracy. The relationship between the two concepts is more thoroughly explored in Chapter Two. 23 To arrive at ratings for political rights Freedom House uses a 40-point ranking scale, and a 60 point ranking scale for civil liberties. Freedom House has responded to earlier criticism see Munck & Verkuilen (2002) for not publicizing the aggregate data by releasing more nuanced information, including the ratings on their subcategories (see: www.freedomhouse.org/template.cfm?page=276). Exceptions include 1992, 1994 and 1995. 15 Freedom House does not directly measure democracy, it is the most commonly used indicator of democracy in comparative politics.24 Figure 1: Venezuela Freedom in the World Scores 1973-2007 Source: This figure was created by the author with numbers from Freedom House. According to Freedom House, a country is classified as a democracy if it obtains a combined average score of 2.5 or less on the Freedom House index of political rights and civil liberties. Political rights and civil liberties scores were obtained from “Freedom in the World” (1973-2007 editions), Freedom House, available online at www.freedomhouse.org/research/index.htm. Venezuela’s rule of law ranking has dropped even more abruptly in a similar period, falling from 29 in 1996 to 9.2 in 2006, as shown in Figure 2 (World Bank, 2006). The fact that this fall coincided with Chávez’s election led many to hypothesize that Chávez’s actions undermined the rule of law and in turn democracy. Mainstream media asserted that problems 24 For some recent studies that use Freedom House scores as an indicator of level of democracy see: Inglehart, 2003; Diamond, 2002; Finkel et. al. 2008). McClintock, 2006 provides further justification for the use of Freedom House scores as measures of democracy. 16 associated with Chávez’s presidency caused the fall in rule of law. Data cannot substantiate this claim because rule of law scores only became available in 1996. This makes a strictly quantitative comparison of the rule of law in the two periods difficult. Figure 2: Rule of Law in Venezuela 1996-2007 Source: This figure was created by the author with the rule of law score is taken from the governance matters indicators 2007. This score is a collection of several sources that measure the rule of law.25 This quantitative evidence allows us to hypothesize that there is a correlation between democratic instability and a low respect for the rule of law. The use of quantitative data alone does not give a good picture of the state of democratic stability or the rule of law in Venezuela. It would be incorrect to discern the causal relationship from this data alone. As indication of the inconsistency of the data, and on different coding methods, there is not even agreement in the 25 The World Bank Institute’s rule of law score measures citizens’ perceptions, crime rate, enforcement of contracts, and effectiveness and predictability. It uses percentile rankings to compare countries. I will further elaborate on this indicator in Chapter Three. 17 literature on which years Venezuela can be considered democratic. For example, Álvarez, Cheibub, Limongi, and Przeworski, in their often cited ACLP dataset, classifies Venezuela as consistently democratic from 1959 through 2002, the last year their dataset covered (Przeworski, et. al. 2000, pp.291-300). Freedom House, as stated above, has listed Venezuela as “partly free” since 1999. Although Freedom House measures political and civil liberties, not democracy directly, Freedom House scores are often used as an indication of democracy. This inconsistency in the data heightens the need to study how the rule of law contributes to institutional instability from a qualitative perspective. In order to develop a more accurate and in-depth account of the relationship between democracy in presidential systems and the rule of law, this dissertation relies on detailed process tracing. This analysis is used to dismiss the possibility that the relationship is spurious. Spurious causation suggests that the perceived correlation between rule of law and institutional instability could exist for reasons that have nothing to do with the relationship between these two variables. For example, it could be that presidentialism is adopted in countries where the rule of law is low for other reasons. An examination of how the perils of presidentialism impact institutional stability will establish a more accurate account of the causal relationship. To test this relationship, this dissertation explores how low rule of law interacts with the perils of presidentialism (minority government, coalitions, deadlock, fixed terms and term limits) to exacerbate democratic instability. It is also possible that other factors inherent in the Venezuelan political process have affected the relationship between the two variables. Therefore, this dissertation considers other prominent explanations for the timing of democratic instability in Venezuela including the pacted transition. 18 1.6 Sources of Evidence Original data was collected for this dissertation through a series of 139 interviews with experts on the topic. These interviews were conducted in Venezuela from August 2005 – August 2006 and from November 2006 – August of 2007. In order to conform to the ethical approval process of the University of British Columbia, and to maintain complete confidentiality of the interviewees, individual interviews will be identified only by number. Interviews were carried out primarily with experts in the judiciary and with political and legal elites. The experts interviewed include one sitting and two former Chief Justices of the Supreme Court of Venezuela; and current and former Supreme Court judges, including several judges involved in controversial rulings, for example, the ruling on the military leaders of the April 11, 2002 coup attempt. Additionally, I interviewed several lower court justices, public prosecutors, lawyers, political party representatives, leaders of non-government organizations and citizen groups, professors, members of the military elite, members of the constitutional assembly, local journalists, foreign correspondents and diplomats. Interviews included high-ranking representatives from all five branches of the Venezuelan government (executive, legislature, judiciary, electoral, and (citizen) moral).26 These interviews are an important contribution to our understanding of the judiciary in Venezuela because, unlike in the other notable major studies, interviews have been conducted with several members who support or are sympathetic with the Chávez government.27 Interviews have been supplemented with primary source material, 26 The functions and roles of each of these branches of government will be outlined in Chapter Five. 27 Many of the attempts that have been made to analyze the judiciary have been unable to interview members from both the government and the opposition. For example International Bar Association (2007) reports that they were unable to interview any high ranking members of the government and very few individuals associated with the judicial system (International Bar Association, 2007, p.16; Consorcio Justicia, 2007). 19 including court case rulings, the National Gazette of the National Assembly, and archival materials from several major national newspapers. The amassed qualitative data serves two basic purposes. First, it expands our understanding of the Venezuelan legal and political systems, the importance of which is fundamental because there are a limited number of secondary sources on the issue. Second, going beyond secondary sources is important; one because there is a large gap between the letter and practice of the law—what in theory should exist does not necessarily occur in practice. And two, the issues are highly politicized and change is occurring in a very polarized environment, making unbiased perspectives more difficult to unveil. Since the relationship between the judiciary and the executive is highly politicized, and the research was conducted in a highly polarized environment, it was necessary to solicit a wide variety of perspectives and to cross- check facts and information.28 Using this interview data, a narrative of the interpretations, motivations, and beliefs held by members of the political and legal elite toward executive-judicial relations can be reconstructed. Although this empirical analysis is centered on Venezuela, effort is made to evaluate how generalizable the findings are. By combining literature related to instability in presidential systems with literature on the role of the executive in Latin America and its relationship with the judicial branch, the lessons learned in this dissertation are likely generalizable within the region. The conclusions are likely to be transferable because of the similarity of problems with democratic instability, the separation of powers, and judicial independence in other countries. Beyond Latin America, the findings will contribute to 28 Every effort was made to validate the often subjective information from interviewees. When there was uncertainty, the events were verified using available primary and secondary resources. Where this was not possible, the information is clearly presented as the opinion of the interviewee. 20 understanding where judicial institutions have become key players that shape political processes and determine policy outcomes, which include Western and Eastern Europe, India, South Africa, and the Middle East (Helmke, 2000). 1.7 Plan of the Dissertation Following this introduction, this dissertation is broken into seven additional chapters. Chapter Two lays out the theoretical antecedents to this project. It situates the dissertation in the literature on democratic stability and establishes the necessity of shifting our focus from regime to state to more accurately study instability. It defines, in detail, the key terms that will be addressed. Chapter Three argues that existing theories on democratic instability would be more accurate if they considered the judiciary. Therefore, it provides a review of the literature on democratic instability in presidential regimes. In order to better understand this relationship, Chapter Three examines several conceptions and measurements of the rule of law and argues that to uphold respect for the rule of law, judicial independence is necessary. Therefore, Chapter Three provides the definition of judicial independence and operationalizes how it will be studied. Chapter Four positions the dissertation in the literature on Venezuela. In so doing, it shows that an examination of executive-judicial relations provides a better understanding of democratic instability. There is agreement in the literature that partyarchy29 contributed to the establishment of an exclusionary system and eventually to high levels of political instability and to the collapse of the Punto Fijo pact. Although existing literature provides part of the picture, a focus on executive-judicial relations helps explain how similar forms of exclusion continue. This 29 Partyarchy is a term that explains the party domination of the political system. Specifically, “political parties monopolize the electoral process, dominate the legislative process, and penetrate politically relevant organizations to such a degree that violates the spirit of democracy” (Coppedge, 1994, p.2) 21 chapter establishes that the executive-judicial relationship that coalesced under the pact stifled the development of an independent judiciary. During this period the parties supplanted state institutions and the problematic implications of this relationship came to light during the transition period. The empirical chapters that follow employ a method of process tracing to explore how the relationship between the executive and the judiciary affected institutional stability. Chapter Five explores how under the Chávez government, elected in 1998, the administration was able to overcome minority government and deadlock through a judicial decision that allowed for constitutional change. The executive used this judicial decision to elect a constitutional assembly to re-write the 1961 Constitution. There was significant debate on the legality of using a referendum to call for constitutional change and on the methods used to determine the members of the constituent assembly; despite some opposition to the government’s methods, the population demonstrated its approval for the Bolivarian Constitution of 1999. The 1999 constitution increased the power of the President. It did so by formally concentrating power in the executive: it increased the presidential term, expanded term limits, changed the legislature from bi-cameral to unicameral and altered appointment and removal provisions for the Supreme Court. The chapter ends by showing how the new rules measure up to the criteria for judicial independence as laid out in Chapter Three. The Bolivarian Constitution of 1999 aimed to provide a break from the corrupt institutions of the past, and as such, a fresh start. The Venezuelan population showed its support for these changes by electing Chávez with 59.5 percent of the vote in the 2000 presidential election. Chapter Six shows how under accusations of unresponsiveness and corruption, however, the coalition fell apart and the government could not contend with rising political 22 unrest. Chapter Six looks at these incidences of unrest and shows how the court, rebuilt to counter corruption, was manipulated to favour the executive. When faced with the most substantive threat to democratic stability, an attempted coup, a legal ruling which acquitted those involved in the coup prompted the punishment and purging of the courts and subsequently an expansion of the Supreme Court. Executive influence during the recall referendum directly affected the electoral outcome. The changes during this one-year period show that, while formal mechanism were introduced to increase judicial independence, in practice the Courts were reconfigured when they ruled against the government. Chapter Seven shows how the government used its majority to alter both term limits and fixed terms. It argues that the misuse of executive power had negative consequences for democracy in Venezuela. This misuse lowered citizens’ confidence in political institutions, leading to a boycott of the 2005 Legislative elections. Increasingly, the population was forced to move away from operating within political institutions in its attempt to have political influence and reducing dialogue among diverse interests. The final chapter revisits the central argument by restating the process by which the judiciary was used to concentrate power into the hands of the executive and in turn used this power to secure positive electoral outcomes even while using institutions arbitrarily. This research supports the claim that these perils, under circumstances of low rule of law, resulted in institutional instability. This chapter demonstrates how the case of Venezuela qualifies the current theories on institutional instability in presidential systems. The lack of respect for law made it possible for actors to follow legally questionable paths that in turn undermined democracy. These findings contribute to the study of presidentialism by showing how it interacts with low rule of law to result in instability. It contributes substantively to our understanding of 23 Venezuela. Finally, it demonstrates the important insight gained from looking at democracy at the state, not only at the regime level. The chapter ends by highlighting the prospects for institutional stability and by pointing to directions for future research. 24 CHAPTER TWO 2.1 Evaluating Democratic Stability Following the “third wave of democratization,” as it was termed by Huntington (1991), many countries have created enduring democracies, but many of these democracies have failed to consolidate, or to make democracy the “only game in town” (Linz & Stepan, 1996, p. 6). These unconsolidated democracies continue to meet the minimal definitions of democracy—free and fair elections—without granting citizens other benefits of democracy; they continue to suffer from large scale human rights violations, rampant corruption, and high levels of inequality, these undesirable features are often exacerbated by the population’s inability to hold leaders accountable.30 Despite such problems, leaders continue to be chosen through elections and the endurance of electoral democracy gives these countries an air of democratic legitimacy, even though they do not possess much “democraticness,” to borrow O’Donnell’s term (1994, 2000, and 2001). In order to address such shortcomings, O’Donnell claims we need to shift our focus, adding that “democraticness is an attribute of the state, not only of the regime” (2001, p. 24-25). The many countries that are stalled in in-between phases present a challenge to the study of comparative politics. As Pérez-Liñán (2007) notes, there is a new pattern of instability in presidential democracies: they fail to breakdown, but severe problems with democracy persist. To explore the causes of instability we can no longer look only at complete breakdowns (meaning back-slides from democracy to dictatorship) of democratic regimes. Instead we need to 30 For an overview of some of the most pressing problems related to democracy including quality of democracy, citizenship shortcomings, inequality, corruption and institutional deficiencies as well as the obstacles to overcome these problems see O’Donnell, Cullell and Iazzetta 2004, Diamond and Morlino (2004) and Schedler, Diamond and Plattner (1999). 25 look at the relationship between state institutions, because “institutional instability short-circuits elections, undermines faith in existing institutions, and threatens investor confidence and economic growth” (Helmke, 2008, p,1). Such forms of instability continue to pose problems to democratic governance even though they stop short of a full breakdown. This chapter begins by clarifying the distinction between how I use the terms regime and state. It will explain why a minimal definition of democracy that focuses only on the regime is not sufficient to evaluate the stability of democracy—and that it is necessary to explore state level institutional instability. Second, it addresses the debate on definitions of democracy and provides the definition that will be used in this dissertation. Third, the chapter will explore the many meanings of instability to show how this dissertation builds on and relates to other studies of instability. Fourth, it will provide an overview of how state institutions support elections or more specifically how horizontal accountability is important to ensure vertical accountability. Next it provides an analysis of the literature on stability in presidential and parliamentary regimes in order to introduce the perils of presidentialism. Finally, the chapter will show how a study of institutional stability contributed to the quality of democracy literature without adding to the laundry list of important features of democracy. 2.2 The Regime State Distinction Whereas regime instability was evaluated based on the binary categories of democracy and dictatorship, we know that institutional instability is present when a crisis between institutions exists—this includes “one or more branches of government issued a threat or carries out an attack against another branch or branches” (Helmke, 2008, p.10). In order to better understand democracy, O’Donnell (2001) supports the adoption of a minimal (or procedural) definition of 26 democracy, but considers it both at the level of political regime and at the level of state. A regime, he clarifies, can be defined as: patterns, formal and informal and explicit or implicit, that determine the channels of access to principal governmental positions; the characteristics of the actors who are admitted and excluded from such access; and the resources and strategies that they are allowed to use for gaining access (O’Donnell, 2004, p. 15). Following this definition, a regime can mean the difference between a democracy or an autocracy (Stepan & Skach, 1993; Cheibub & Limongi, 2002; Przeworski, 2000).31 A state, meanwhile, is defined as both the territorial entity that “delimits those who are the carriers of the rights and obligations of political citizenship,” on one level, and “…a legal system that enacts and backs the universalistic and inclusive assignment of these rights and obligations” (O’Donnell, 2001, p. 18).32 Therefore, “the state is not only a set of bureaucracies; it is also a legal system that is enacted and normally backed by the supremacy of coercion held by the state institutions over the territory they delimit” (O’Donnell, 2005, p. 31). This dissertation has adopted this definition of state and attempts to contribute to the literature that seeks to understand state level components of democracy. As Collier and Levitsky note, “by shifting the overarching concept from ‘regime’ to ‘state,’ O'Donnell establishes a more demanding standard for labeling particular countries a democracy” (Collier and Levitsky, 1997, p. 446). 31 As a point of clarification it is worth pointing out that some scholars use the terminology of presidential and parliamentary regimes (Cheibub, 2002; Stepan & Skatch, 1993; Mainwaring, 1990; Linz, 1990), other scholars label them presidential and parliamentary systems (Przeworski, Alvarez, Cheibub & Limongi, 1996; Lijphart, 1999; Shugart and Haggard, 2001) and still others use the terms seemingly interchangeably (Linz, 1990; Mainwaring and Shugart, 1997; Linz 1994). This dissertation, for resons of consistency calls them systems and saves the term regime for reference to democracy or dictatorship. Alternatively, regime types can include totalitarian, post-totalitarian, and sultanistic rule (Linz & Stepan, 1996, p.40) 32 A third aspect of O’Donnell’s analysis that warrants greater attention than can be given here is the guarantees given to political citizenship which come from the notion of agency. He sees democracy as an institutionalized wager in which an actor’s agency ensures that they impact the system (O’Donnell, 2001, p. 19). 27 In differentiating his definition of state from other commonly used definitions O’Donnell (1993) argues that “it is a mistake to conflate the state with the state apparatus, the public sector, or the aggregatation of public bureaucracies. These, unquestionably, are part of the state, but are not all of it” (p. 1356). If legal institutions are a component of the state, then it is logical to study elements of the legal system when seeking to uncover state level instability. The term “government” is used in reference to “the set of institutions that makes and enforces collective public decisions for a society” (Dyck, 2003, p.21). Government can also be used to describe the current elected officials. The distinction between the terms state and government is important because in some countries there is little separation between state and government; when a particular party or leader comes to power, there can be a tendency to blur the lines between state and government. A shift in focus from regime instability (or breakdown) to state level instability evaluated through institutional instability, does not constitute a logical leap because both are concerned with the outcome of elections as a reflection of vertical accountability. A shift in focus from regime to state, however, allows for a better assessment of whether elections are a reflection of the population’s preferences, and also whether elections will continue to be held in the future. The need to look beyond elections to determine the democraticness of a country is also addressed in the quality of democracy literature. The quality of democracy literature builds from the shortcoming of the consolidation literature. The concept of consolidation has been accused of being teleological (Schedler 1998; O’Donnell 1996, Linz & Stepan 1996); for example it “posits, explicitly or implicitly, that a given entity inherently tends to move from lower (or immature or incomplete) to higher (or more mature, or complete) stages, up to an end point that marks the full development of its 28 potentialities” (O’Donnell, 1996, p. 163-164). Consolidation tends to see only one path toward an ideal point—consolidated democracy. The countries that have been referred to as transitioning have, however, remained in this in-between category, or gray zone. Seeing them as an in- between category implies that “analysts are in effect trying to apply the transition paradigm to the very countries whose political evolution is calling that paradigm into question” (Carothers, 2002, p. 10). Seeing these countries as transitioning toward a consolidated end can lead us to ignore the enduring nature of these political systems in these countries. The shift in focus from regime to state institutions does not require us to cast aside the findings from previous studies of democratic stability. I will show that the perils that contributed to presidential regime instability also contribute to institutional instability. As such, instead of providing a scorecard for how democracy can be measured, this chapter will provide both an overview of the current uses of stability in the literature and provide justification for the definition that will be used throughout this dissertation. The analysis of democracy on state level has focused on the ability of state institutions to hold the executive accountable through horizontal accountability, and especially the encroachment by one branch on another branch of government. For these reasons this dissertation has chosen to focus on institutional instability, or specifically, threats or attacks by one branch of government on another to probe deeper into the relationship between presidentialism at low rule of law and instability. 2.3 Democracy Defined Etymologically, democracy means rule by the demos, or the people. We can trace the roots of democracy to ancient Greece where direct rule by the people occurred through popular assemblies. In modern times, where countries tend to be much larger, this form of direct rule has not proven feasible. Instead, modern democracies have an agreed upon set of rules to determine 29 how citizens will choose their representatives. The rules, designed to qualify the majority rule, are enshrined within a nation’s Constitution. Political scientists have often defined democracy on a continuum from the most minimal definition of democracy based predominantly on elections (Dahl’s 1971 conception of polyarchy; Schumpeter, 1942 see also Munck, 2004) to more comprehensive consolidated democracies (Diamond, 1996, 1999; Fukuyama, 1992). Robert Dahl defines democracy in a minimalist way, calling it polyarchy. In polyarchies citizens have the ability to voice political opinions; the opportunity to elect political leaders in free and fair elections; the right to compete for public office; the ability to tap into alternative sources of information; and the right to organize freely (Dahl, 1971, p. 3). This definition is the most used and accepted contemporary definition of democracy (O’Donnell, 1996; Carothers, 1997; Diamandouros, Gunther & Puhle, 1996; Karl, 1990; Linz & Stepan, 1996; Schedler, 1998). The parsimony of this definition means that it travels well and thus is applicable to many different cases. Nonetheless, it is widely understood that although elections are a necessary condition for democracy, they are not sufficient.33 Whereas minimal definitions, such as polyarchy, focus on the existence of elections, more comprehensive definitions have sought to identify preconditions and criteria necessary for democracy to endure. Enduring democracies are often considered consolidated and although consolidated democracies are more stable, and break down less often, there is no agreement on the necessary characteristics that a democracy requires in order to be classified as a consolidated democracy (Mainwaring, 1992; O’Donnell, 1996; Schedler, 1998). During its evolution, the 33 An extreme example would be a country that forced the electorate to vote at gunpoint—surely such a country lacks all other democratic rights, and in turn, the election would not hold any weight even if it was conducted freely and fairly. 30 literature on democratization has shifted focus. Among the main findings within the democratization literature has been different ways of reaching stable democracy. The most commonly referenced definition of consolidation is the one presented by Linz and Stepan (1996): Democracy can be considered consolidated when it is “the only game in town” behaviorally, attitudinally, and constitutionally (Linz & Stepan, 1996, p. 6).34 Some scholars who study democracy see consolidation as an ideal goal because such regimes tend to be the most enduring. In a search for the characteristics that were most likely to lead to consolidation, scholars discovered that the form of government mattered (Linz, 1978, 1990; Stepan and Skach, 1993). More specifically, parliamentary democracies are more enduring because “parliamentarism provides a more flexible and adaptable institutional context for the establishment and consolidation of democracy…” (Linz, 1990, p. 68). The unique characteristics that are present in these different forms of government will be explored in the following section. 2.3.1 Beyond Elections: This dissertation accepts the theoretical assertion that elections are a necessary but not sufficient characteristic of democracy. It is important to recognize that there has been some opposition to more inclusive definitions of democracy that look beyond elections. For the most part this resistance has come from those who challenge liberal democracy and suggest that deliberative or participatory forms are superior (Held, 1992), and from those who see liberal democracy as a culturally biased understanding of democracy (Bell, 2006; Robinson, 1996; Parekh, 1992). In another line of criticism, other scholars steer clear of any debate that adds “adjectives” to democracy because they see too many qualifications of the term democracy as diluting the 34 Gunther, Diamandouros and Puhle (1995, p.8), offer an alternative way to define consolidation. Specifically, they consider a democracy to be consolidated when it can “survive and remain stable in the face of such serious challenges as major economic or international crisis, or even serious terrorist outbreak.” 31 concept (Diamond, 1996; 1999; Collier & Levitsky, 1997).35 With little common ground, the discipline remains stuck in its focus on elections. Instead of accepting that there is one continuum along which all countries must follow, other scholars have suggested that socio-political, economic or cultural conditions unique to each country have resulted in different forms of democracy that endure and so ought to be studied. Debates over the essential elements of democracy have focused on those that are fundamental to consolidating democracy (Schedler, 1998; Diamond, 1996; 1999, Fukuyama, 1992). Recent literature has identified diminished subtypes of democracies — delegative (O’Donnell, 1994); illiberal (Zakaria, 2004); pseudo (Diamond, Linz & Lipset, 1995, p. 8); hybrid (Diamond, 2002, Smith, 2005); and gray-zone (Carothers, 2002). Another possibility is that these countries, instead of fitting into democratic categories could more accurately be classified as autocratic and therefore more appropriately labeled electoral authoritarian (Schedler, 2006); semi-authoritarian (Ottaway & Carothers, 2000); or competitive authoritarian (Levitsky & Way, 2002). The inability of countries to move beyond these stages has, in turn, led scholars to believe that they are worthy of study, rather than being countries in transitional phases on the path to becoming consolidated democracy. The main component that could classify a country as unstable in terms of a breakdown is a switch from the presence to absence of elections or the military control of the executive. Yet the purpose of elections is undermined when the presence of “formally democratic political institutions . . . masks (often, in part, to legitimate) the reality of authoritarian domination” (Diamond, 2002, p. 24). Countries that hold elections in the absence other characteristics of 35 By “democracy with adjectives,” Collier and Levitsky (1997) refer to the number of subtypes of democracy that emerged to explain categories of countries that were not fully democratic or fully authoritarian. This has led to an increase in conceptual confusion that stems from researchers dissatisfaction with procedural definitions such as those of Schumpeter and Dahl. 32 democracy are often called electoral authoritarian regimes. The notion of an electoral authoritarian regime finds its antecedents in O’Donnell and Schmitter’s concern over variation in transition outcome, specifically, they recognized that when countries transitioned from a dictatorship, democracy is not the only potential outcome: they identified the potential for a liberalized authoritarian regime, dictablanda, or illiberal democracy democradura (1986, p. 9). These classifications have been returned to with greater emphasis in the literature on hybrid regimes and electoral authoritarian rulers. Sub-groups of countries that have not reached consolidation are still considered ‘democratic’ for the one thing they have in common: elections. Yet, elections alone do not ensure that citizens enjoy the benefits of democratic rule, as is indicated by the emergence of countries that have democratic regimes, without other features of democracy. Specifically, the purposes of democracy—participation and contestation—are undermined. For their part, electoral authoritarian regimes have few, if any, requisites of democracy apart from elections (Schedler, 2006). To be exact: Electoral authoritarian regimes play the game of multiparty elections by holding regular elections for chief executive and a national legislative assembly. Yet they violate the liberal- democratic principles of freedom and fairness so profoundly and systematically as to render elections instruments of authoritarian rule rather than ‘instruments of democracy’ (Powell, 2000). The governments in such countries claim a public mandate to rule, yet they often do so with few restraints on their power. Whereas democracies are based on the will of the people, authoritarian regimes are based on the will of a small group, or an individual, over society. One danger to democracy is when leaders abuse their electoral mandate to maintain their position or to guarantee their continued electoral success. When elected leaders use their electorally gained power only to perpetuate accumulate electoral power and increase control over future electoral 33 competition, the future of free and fair elections is often questioned. Electoral authoritarian regimes give leaders a claim to hold a public mandate while at the same time missing other features necessary to ensure their power as leaders is checked. This is problematic because leaders claim to represent the public mandate, yet the rights of the pubic are restricted and the public has few avenues to influence leaders, undermining the true nature of democracy. This tendency to abuse power becomes more possible when the executive’s power is unchecked. O’Donnell labels this form of leadership delegative democracy. This concept captures how Latin American leaders claim a personal mandate to govern. Once elected, presidents tend to rule by their whim, ignoring the demands of civil society and their own electoral promises: “Whoever wins election to the presidency is thereby entitled to govern as he or she sees fit, constrained only by the hard facts of existing power relations and by a constitutionally limited term in office” (O'Donnell, 1994, p.59). Therefore, since the policies that a president enacts, “need bear no resemblance to the promises of his campaign” O’Donnell asks “has not the president been authorized to govern as he (or she) thinks best?” (O'Donnell, 1994, p.60). Delegative democracies have few horizontal restraints on a leader’s power. Therefore, delegative democracies have fewer mechanisms in place to hold leaders accountable for their actions. Moreover, in delegative democracies there are few guarantees that the institutions that protect democracy will be respected. 2.4 The Various Meanings of Instability in the Democratization Literature The democratic breakdown literature was concerned first and foremost with the replacement of a democratic regime by a non-democratic regime (Linz, 1978; Shugart & Carey, 1992, p. 39; 34 Cheibub, 2007, p. 1).36 Yet, the literature has shifted attention from full breakdowns, to other shortcomings of democracy because, as Pérez-Liñán (2007) asserts, “the new pattern of instability poses a major theoretical challenge for comparative studies of presidentialism… Recent crises have led to the downfall of elected presidents without triggering democratic breakdowns” (Pérez-Liñán, 2007, p. 3).37 This statement has important implications. The empirical reality suggests that full regime breakdowns are less common than they were previously and therefore the literature needs to shift its focus from full regime breakdown to consider shortcomings in other forms. It is necessary to clarify how the term instability is being used. The literature has been inconsistent in its definition of instability and conflicting use of the term prompted Przeworski, Alvarez and Cheibub to note: “we put ‘instability’ in quotation marks because the concept is congenitally muddled” (2000, p.186). To overcome confusion caused by the multiple uses of the word instability, the word warrants clarification. The literature explored above used the concept of instability to describe a shift from democratic to non-democratic forms of political regime (using dichotomous categories of democracy and non-democracy). One such example is Przeworski, Álvarez, Cheibub and Limongi’s definition that regime instability is akin to frequent changes of heads of government from democrats to dictators (Przeworski et. al 2000, p. 123). The UNDP report Towards a Citizen’s Democracy states that stability of the democratic regime is threatened by high levels of inequality, poverty, social exclusion, a loss of confidence in the 36 This literature recognized that instability can emerge to temporarily remove democracy and that the possibility of re-equilibration can come about when democratic authority is temporarily replaced and a return to democracy occurs (Linz, 1978). 37 Venezuela does not fit directly into this category because its President has remained in power for over a decade— we have not therefore seen a “downfall” in an elected president. Instead we have witnessed a systematic deterioration of institutions capable of checking the power of the executive, and thus, a downfall of democratic institutions. The case of Venezuela contributes to this body of literature because it shows how state level factors impact democratic governance. 35 political system, radical actions and government crises (PNUD, 2004, p.21). The UNDP remains concerned with the continuation of democratic regimes, but it identifies factors below the regime level as factors that will contribute to problems at the regime level. Other studies of instability have focused on factors that are likely to create instability such as economic conditions (Lipset, 1959; Diamond and Linz, 1989); number of effective parties (Sartori, 1976; Lijphart, 1999); or electoral system (Shugart and Carey, 1994). These studies suggest different ways that democratic instability could be triggered, or identify conditions that tend to be present in countries that have had regime breakdown and thus a transition from democratic to non-democratic rule. These studies of democratic breakdown focus on the outcome, and have sought to identify the causes. Full breakdowns are less common. The infrequency of full breakdowns does not mean that the causal factors that have contributed to breakdown in the past have disappeared; these factors could be ameliorated by other conditions, or full breakdown could be avoided for reasons that have nothing to do with the causal factors. In other bodies of literature ‘instability’ is used to describe political instability such as violence and protest. Although I am more interested in exploring institutional instability it is important to consider how other factors of instability have been looked at and why I have chosen this one. For example, the World Bank Institute evaluates political stability based on perceptions of “the likelihood that the government will be destabilized or overthrown by unconstitutional or violent means, including politically-motivated violence and terrorism” (Kaufmann, Kraay & Matsruzzi, 2007, p.7). This definition combines both violence—which other scholars have referred to as political instability—with the notion of complete overthrow, but they do not specify if this would be a regime breakdown or not. Still other scholars have focused on political 36 strikes and riots when seeking to measure political instability (Schneider and Frey, 1995). These factors often, but are not always a sign of political crisis. While political instability may impact the political process, it generally does not get so severe as to impact the regime. As Pérez-Liñán (2007, p. 2-3) notes, “Latin America is confronting a distinctive pattern of political instability, one that represents a break from the past. As in previous decades, democratically elected governments continue to fall, but in contrast to previous decades, democratic regimes do not break down.” Whereas military coups were the dominant means of democratic regime interruption in Latin America throughout the 1970s, they are not common in recent years. To address this, Pérez-Liñán turns to an examination of the impeachment of presidents, what he terms to be “the most powerful instrument to displace ‘undesirable’ presidents without destroying the constitutional order” (Pérez-Liñán, 2007, p.3). Therefore, scholars who look at democratic instability have looked at many different things. The challenge, then, becomes how we explore the root causes of the instability even if the outcome has not been a complete breakdown. In an attempt to address this question of causation, more recent literature has focused on understanding causes of interruptions in constitutional powers, short of full break downs, which have come in many forms. Valenzuela (2004) sees interruptions as indications of failed presidencies, categorizing them as functional equivalents to breakdowns (pp. 6-14). Instead of a full breakdown he focuses on chief executives that were “interrupted” in the sense of being unable to finish their terms because of resignation, coup, or protest (Valenzuela, p.8). Other scholars have shifted their focus to look at democratic crises, which include any 37 “unconstitutional alteration of the constitutional regime,”38 autogolpes39 and the suspension of constitutions. A recent contribution by Gretchen Helmke seeks to identify why institutional instability emerges in some Latin American cases and not others. To do so, she constructed the Institutional Crisis in Latin America (ICLA) Dataset. In this dataset institutional crisis is said to have occurred when “one or more branches of government issued a threat or carries out an attack against another branch or branches” (Helmke, 2008, p.10). She provides a list of threats or attacks including: impeachment, investigation, prosecution, immunity stripping, self-resignation, forced resignation, challenge to rule-making authority, rule around via plebiscite, rule around via constituent assembly, non-compliance, rebellion [sic], alter size or composition, alter term length, alter jurisdiction, suspend, dismiss, or dissolve, involve 3rd parties, prevent running for office, assassination (Helmke, 2008, p.11). This long list includes several of the factors that we have seen in Venezuela and thus can act as a means of operationalizing institutional instability. Furthermore, hemispheric leaders have recognized the need to protect against threats to democratic governance. The hemisphere’s commitment to democracy is intended to protect countries from “unconstitutional interruptions of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state” (Organization of American States, 2001, Article 19; see also Boniface, 2007). This literature provides a precedent for the study of problems of democracy that does not focus on the outcome of regime level change. 38 See for example: (Articles 19 and 20, section IV, “Strengthening and Preservation of Democratic Institutions” Lima, Peru September 11, 2001). 39 In the words of Cameron: “the term autogolpe refers to a temporary suspension of constitutional guarantees and closure of Congress by the executive, which rules by decree and uses referenda and new legislative elections to ratify a regime with broader executive powers” (Cameron, 1994, p. 146). 38 When we observe a slow strangulation of democracy rather than a complete rupture, how do we know when political crisis will translate into regime crisis? Often times, violations of the democratic principles have occurred when elected leaders have altered democratic institutions because there have been no other state institutions with the capacity to check their power. Since these violations have occurred without impacting the democratic regime, they are overlooked if we focus only on regime transitions. Yet, they are detrimental to democratic political institutions. In other cases the veil of legitimate elections has been used to undermine democratic institutions. In fact, it is the ability of parliamentary democracies to deal with crises at the state and government levels before they cause regime crises that make them more stable (Stepan & Skach, 1995, p. 321). Pérez-Liñán (2007) demonstrated why a shift in focus from a full regime breakdown to a focus on other causes of instability was necessary. This switch in focus from regime to state does not constitute a major analytical shift if we accept that democracy means more than just elections. This dissertation understands democratic institutions to be unstable when one branch of government can threaten or attack another. This definition recognizes that, for example, an executive with the ability to run roughshod over other institutions is a threat to the stability of democratic institutions. In order for democracy to be the “only game in town” there must be predictability of the rules of the game, and these rules are established and upheld by state institutions. 2.5 How the State Upholds Fair Elections A distinction between democratic regime and democratic state is not new in the literature. The recognition of a difference between state and regime was implied in the literature, but was not always concretely explored. Both O’Donnell and Munck argued that even procedural definitions of democracy required the presence of an impartial state. Munck (2008) used Dahl’s critique of 39 Schumpeter as an indication that democracy is about more than just who has the right to vote. He argues that even under a minimal definition of democracy a basic state structure is assumed, though not fully examined (Munck, 2008, p. 132). Similarly, O’Donnell asserted that even taking its ‘minimal’ definition, as presented by Schumpeter and Dahl, democracy required institutions beyond fair elections. O’Donnell qualified this position by stating that fair elections as “the sole characteristic of democracy, presuppose the existence of some basic freedoms, or guarantees, if such elections are to exist” (O’Donnell, 2001, p. 16). Without other legal guarantees and freedoms, free and fair elections cannot exist. For O’Donnell (2001) this shortcoming stems from a lack of focus on the necessary inclusion of a basic, egalitarian, legalistic framework the literature, which he argues that both Schumpeter and Dahl allude to, but did not address. O’Donnell stated that they were intentionally unspecific about the necessary characteristics that could provide for this level of equality because of the complexity of such an issue (O’Donnell, 2001, p. 9). This debate is complicated by the fact that what may provide for such guarantees in one country may not have the same outcome in another country, making generalizability of findings more difficult. Moreover, Stephanie Lawson asserts that when the political structure is more democratic, there is a clearer difference between state and regime. When the political structure is less democratic, the distinction between these two concepts is less obvious. O’Donnell’s major clarification is that “democraticness” is an attribute of the state, not only of the regime (O’Donnell, 2005, p. 32).40 This distinction draws a clear line between regime 40 It is worth noting that Fernando Henrique (1979, p.38) uses the term state in a slightly different, but not contradictory, context. He defines state as “the basic ‘pact of domination’. . . .” Cardoso linked his notion of state to the socio-economic patterns and noted that the same form of state can exist under different regimes (1979, pp. 39- 40). For Cardoso this distinction was made in the context of studies on Bureaucratic Authoritarianism because he observed different patterns of capitalist states and forms of political regimes. He decided on this usage because “the 40 and state and how each contributes to democracy. To reiterate, O’Donnell offers an important clarification on the relationship between state and regime. For democracy to exist, a state structure must be in place that ensures “practically all actors, political and otherwise, take for granted that fair elections will continue being held into the indefinite future . . .” (O’Donnell, 2005, p. 15). When this occurs, actors strategize based on this continuance of elections; otherwise, they resort to other means of accessing the regime (O’Donnell, 2005, p. 15). As such, both a democratic state and a democratic regime are necessary preconditions for democracy to flourish. If elections are the only “democratic” component, a country can be classified as having a democratic regime, but not necessarily a democratic state. A democratic state is essential to ensure that a democratic regime is upheld. This dissertation adopts a minimal definition of democracy, but shows that for elections to be considered free and fair, sufficiently strong institutions must exist to ensure that the existence of elections into the future is not questioned. That is to say that there must be institutional and nonpartisan means of ensuring that elections are free and fair, such as an independent electoral authority. Whereas the consolidation literature was concerned first and foremost with stability at the regime level, that is, if a country continued to hold elections, the quality of democracy literature has opened the black box of the state level factors that contribute to weakening democracy. Iazzetta points out that current democratic theory was unable to explain the reality in Latin America, where “democratized regimes existed alongside states with strong authoritarian legacies” (2004, p. 1). This dissertation explores the inner workings of one such state. relationship between the two is far from clear and, given that this is a complex and rather controversial subject, it might be wiser to advance modestly along the unambitious path of the political description of the institutions of bureaucratic-authoritarian regimes” (Cardoso, 1979, p.40). 41 The existence of elections alone is not sufficient to ensure that electoral democracies do not become electoral autocracies. Given this definitional specification and since elections are a fundamental component of democracy, electoral events (including referenda) are used in this dissertation as the key events for analysis. Elections and referenda act to reinforce vertical accountability41 and are the citizens’ means of interacting with state institutions. Nothing inherent in elections ensures horizontal accountability. The quality of democracy literature recognizes the “democraticness” as an attribute of the state, not only of the regime (O’Donnell, 2005, p. 32). To delineate what is included in an analysis of the state, O’Donnell adds two conditions: “(a) by the implication of the definition of democratic regime, a legal system that enacts and backs—at least—those same rights and freedoms; and (b) a legal system that prescribes that no person or institution is de legibus solutes” (2004, p. 33). Essentially, O’Donnell suggests that to understand democraticness at the state level we must first consider if the state institutions have control over the territory –which, with a few exceptions the Venezuelan state does, and second, we must look at the accountability mechanisms in place to ensure that no one is above the law (perhaps the most controversial and meaningful theme in contemporary Venezuelan politics). In order for state institutions to be effective, O’Donnell argues, the state’s actions must be “based on the application of laws and regulations that are clear, knowable by the citizens, and enacted in ways that accord to democratic procedures” (O’Donnell, 2004, p.35). This observation suggests that more attention is warranted toward the study of how laws impact state institutions. 41 O’Donnell defines vertical accountability to mean not only elections, but also other “social demands that usually can be articulated without suffering state coercion, and regular coverage by the media of a least the more visible of these demands and of apparently wrongful acts of the public authorities. . . ” (O’Donnell, 1999 in Schedler, Diamond & Plattner, 1999, p.30). 42 Such state institutions that help to enforce horizontal accountability, for example, the legislature, the judiciary, electoral bodies or other institutions as outlined in the constitution (O’Donnell, 2003). Horizontal accountability “results when some properly authorized state institutions act to prevent, redress, and/or punish presumably illegal actions or inactions committed by public officials (see O’Donnell 1998, 2003). How horizontal accountability is implemented varies, but there is a tendency in Latin American and other new democracies for officials, once elected, to be “only minimally responsive to citizen preferences, constrained by other agencies of government, and respectful of the rule of law” (Diamond and Morlino 2002: xi). With regard to horizontal accountability, Schmitter notes that “a regime or system of governance in which rulers are held accountable for their actions in the public realm by citizens, acting indirectly through the competition and cooperation of their representatives. Accountability is central to virtually all ‘procedural’—as opposed to substantive—definitions of democracy.” (Schmitter 1999, p.60). We cannot have electoral democracy without institutional predictability to ensure that the expectation of holding elections will continue in the future: holding leaders accountable for their actions is one way of incentivizing them to play by the rules of the game. 2.6 Stability in Parliamentary versus Presidential Systems Scholars presented evidence to suggest that parliamentary systems are more stable and have a lower breakdown rate than presidential systems, yet explanations for this finding conflict (Bunce, 2000; Lijphart, 2000; Przeworski, et al. 2000; Cheibub, 2002; Cheibub & Limongi, 2002). Much of the initial research focused on full breakdowns, and was centered on Linz’s perils. I survey this literature, and argue throughout this dissertation the factors that Linz links argues lead to breakdowns (minority government, coalitions, deadlock, fixed terms, and term limits) are indeed causes of institutional instability even in the absence of full breakdown. Initial research 43 suggested that when breakdowns were replaced with instability, using the World Bank Institute’s measure of instability, presidential systems continued to be more unstable, particularly when respect for the rule of law was low (Cameron, Blanaru, Burns, 2004). Some scholars attribute the higher breakdown rates of presidentialism to factors beyond its intrinsic constitutional features, such as the constitutional separation of powers (Cheibub, 2002, p. 308). Others reject the basic finding and attribute higher breakdown rates in presidential systems to methodological problems in previous studies, such as spurious correlation, selection bias or preexisting regime type (Mainwaring & Shugart, 1997).42 This body of literature is concerned with instability specifically with relation to the survivability or breakdown of democratic regimes.43 This literature adds an important methodological clarification, but the pressing question remains unanswered: Why are presidential democracies in Latin America so unstable? I argue that we can better answer this question by considering how the perils of presidentialism lead to institutional instability at low levels of rule of law. An overview of the literature on presidential breakdown will explore the five perils of presidentialism to show a systematic shortcoming: an exclusive focus on executive-legislative relations. To uncover the differing breakdown rates, theories on the causes of instability in presidential regimes have concentrated on aspects of presidentialism absent in parliamentarism. For example, whereas a leader’s continuation in office in a parliamentary regime is dependent on 42 This dissertation supports Cheibub’s (2007) declaration that the resolution to presidential instability lies in designing better presidential democracies; however, it diverges from his work which suggests that lower levels of “survivability” stem from their tendency to be adopted in regimes with “activated” militaries. This dissertation does not deny that pre-existing power relations may impact “survivability” but sees sufficient evidence to suggest that this teleological analysis is flawed. First, Bejerano (2000) shows that similar transition styles can lead to very different outcomes. And second, even an “activated” military can be kept in democratic check with a strong respect for the rule of law. 43 Mainwaring and Shugart define a breakdown based on a change in score for Freedom House. A country was considered to have had a breakdown if its score increased to 5.0 or greater (Mainwaring & Shugart, 1997, p. 28). 44 support of the legislature, presidential regimes are characterized by “mutual independence,” in which the legislature and the executive have independent electoral mandates with separate and fixed terms that act as their own source of legitimacy (Stepan & Skach, 1993). The presidential breakdown debate, as mentioned in the introductory chapter, has centered on the following five perils: minority governments, deadlock, coalitions, fixed terms, and term limits. The perils are interrelated; both the survivability and the institutional stability of presidential regimes are compromised by minority governments, which can easily result in political deadlock.44 Deadlock can be overcome legally through the formation of coalitions or illicitly through negotiation, or pork barrel deals. The propensity for problems is increased when fixed terms and term limits complicate the removal of leaders. To end unpopular presidencies, actors have often been pushed to unconstitutional measures and leaders have tried to overcome barriers to their leadership by extending their terms. These problems, solved through a vote of confidence in parliamentary regimes, have been cast as the main causes of presidential breakdown. My research supports the claim that these five issues contribute to institutional instability in the case of Venezuela. It was not the perils alone, however, but their existence under conditions of low respect for the rule of law that resulted in instability. Therefore, it was a precarious respect for the law that made it possible and lucrative for actors to follow legally questionable paths in their contention with minority government, deadlock, coalitions, fixed terms and term limits. Minority governments in presidential systems occur when presidents lack a legislative majority, or in a bi-cameral system when the government lacks a majority in one of the two houses. Minority governments can lead to deadlock when presidents are unable to have 44 It is worth noting that there are arguments that suggest that minority governments are not as uncommon in parliamentary governments as previously assumed (Strom 1990; Cheibub, 2002, p. 154). 45 legislation approved. Inability to pass legislation slows a government’s agenda. In the face of deadlock, presidents have the option of building a coalition to enable the approval of legislation. Evidence suggests that when coalitions are difficult to build, presidents may be tempted to rule in legally questionable ways. Presidential regimes, unlike their parliamentary counterparts, lack confidence checks to ensure that leaders without the support of the legislature can be removed from power. This means that there is no institutionalized mechanism to resolve executive- legislative conflict. Moreover, there is no legal means for the legislature to remove a president, short of impeachment, which requires an illegal act. Thus, in presidential systems problems of government easily result in the executive running roughshod over existing political institutions with few checks. While agreeing that there is a higher probability of minority government in presidential systems, José Antonio Cheibub (2002) argues that minority governments do not necessarily lead to breakdown. Cheibub and Limongi show that, to overcome minority situations, governments’ can enter into coalitions. In fact, they state that “the occurrence of minority governments has no impact whatsoever on the survival of presidential democracies (Cheibub & Limongi, 2002, p.154). Helmke (2008, p.1) adds that “not all non-majoritarian situations in Latin America lead to inter-branch crises.” She cites the examples of Fujimori and Chávez who have successfully dissolved legislatures when they lacked majorities, noting that other presidents have not. One way to overcome minority representation in congress is through coalitions. By building a coalition presidents can successfully have their policies approved by the legislature despite inadequate initial partisan support. Cheibub and Limongi refute this research by arguing that 46 coalitions do not inherently lead to breakdown (Cheibub & Limongi, 2002).45 Moreover, Cheibub discounts the impact that deadlock has on break down. He argues that even under situations of deadlock, the probability of breakdown is not substantive. According to his calculations, “whereas 1 in every 31 presidential democracies dies when there is no deadlock, 1 in every 26 dies when there is deadlock” (Cheibub, 2002, p. 301). As such, Cheibub claims that the breakdown rate is not substantively different when the existence of deadlock is controlled for, and therefore, he argues that the level of concern with deadlock often expressed in the comparative literature is unwarranted. Cheibub’s conclusions discount the impact that deadlock and coalitions have on presidentialism and suggest that neither affects democratic endurance. This inference, however, invites clarification. To be specific, Cheibub shifts the level of analysis from minority presidents to minority government, contradicting much of the existing literature which focuses on minority presidents: “Minority governments are those in which the governing coalition does not control a majority of seats in the legislature or, in a bicameral system, those in which it does not control a majority of seats in at least one of the chambers” (Cheibub, 2002b, p. 287). For their part, minority presidents exist when “…the party of the president does not control a majority of seats in the legislature” (Cheibub, 2002, p. 294).46 The important difference between the two concepts is that, for Cheibub, the existence of a coalition means the government is no longer considered a minority. Minority governments, therefore, are far less frequent than minority presidents (Cheibub, 2002, p. 294). As previously stated, coalitions are a common method used by minority 45 Whereas 1 in every 31 presidential democracies dies when there is no deadlock, 1 in every 26 dies when there is deadlock. This difference does not warrant the level of concern with deadlock that is often expressed in the comparative literature (Cheibub & Limongi, 2002, p.156). 46 Valenzuela (1993, p.8) on the other hand defines minority presidents to be “the lack of majority support in the legislature. 47 leaders to overcome deadlock; it is not common for minority presidents to rule without some form of coalition. Although Cheibub’s finding adds an important clarification, his shift in focus from minority president to minority government does not shed light on the mechanisms that lead minority presidents to become unstable. Moreover, the shift in the unit of focus opens avenues for future research, but it also minimizes the direct comparability of these findings to previous conclusions. Instead, the focus on minority governments defines the case-set more narrowly. In turn, Cheibub’s definition of deadlock is far more restrictive than that of previous studies.47 Secondly, other research that questions the survivability of coalitions suggests that, at times, these coalitions are informal or concealed (Mainwaring & Shugart, 1997; Stepan & Skach, 1993; Amorim Neto, 1998; Mejía Acosta, 2006). Along similar lines, many scholars also address the tendency of presidents to resort to questionable or illegal means to overcome deadlock situations (see for example: Riggs, 1988; Valenzuela, 1994). Cheibub’s examination of minority governments does not address either of these bodies of literature and it is for these latter reasons, this dissertation argues, that minority presidents can rule with little respect for democratic institutions. Another aspect that contributes to breakdown in presidential regimes is their propensity to have fixed terms. Having a set end date to a president’s term makes early removal, except through impeachment, difficult. This is true even when a leader is ineffective or unpopular. As such, having fixed terms “systematically contributes to impasses and democratic breakdown” (Stepan & Skach, 1993). Taking Latin America as an example, we can see that fixed terms often lead to presidents being violently forced out of office (Linz, 1994; Mainwaring, 1990; Pérez- 47 These studies tend to rely on divide government as an indication of deadlock –or the probability of a deadlock situation (see: Mainwaring, 1993; Jones, 1995; Carey, 1997 and Mainwaring & Shugart, 1997). 48 Liñán, 2005; Pérez-Liñán, 2007). This was true in Bolivia (2003), Ecuador (1997, 2000, 2005), Peru (2000) and Venezuela (1993 and 2002). In each case, removal of presidents prior to the end of their terms occurred because of widespread discontent. The method of removal has varied, but included accusations of insanity, widespread protest and military coup.48 Compared to the parliamentary option of a non-confidence vote, the presidential mechanism to remove political leaders is more likely to violate the democratic rules. Moreover, the legal removal of a president requires the judiciary, emphasizing the specific importance of this body in presidential regimes, unlike in parliamentary regimes the president cannot be removed by the legislature. The final element of presidentialism associated with a higher level of break down is term limits, a common although not intrinsic characteristic of presidentialism (Cheibub, 2002). When a leader is barred from reelection, an institutional means of accountability is lost. With fewer incentives to remain honest to the population, leaders can inappropriately push through agendas to secure their legacies. Alternatively, when leaders face possible reelection there is greater temptation to abuse the presidential office to secure their own reelection. The prevalence of this form of abuse prompted Matthew Shugart and Scott Mainwaring to argue that reelection should only be permitted in countries “where reliable institutions safeguard elections from egregious manipulation by incumbents” (Shugart & Mainwaring, 1997). When presidential regimes lack institutional checks on the power of the executive, they can more easily manipulate state resources to stay in power. In some countries this has seen the executive remove the limit on reelection and in turn use state resources to secure the reelection of their administration. Figure 3 summarizes the relationship between presidentialism and democratic breakdown as it is illustrated in the existing literature. This literature attributes break down to minority 48 Degree of violence associate with these early terminations has varied considerably, as has the level of popular support. For more on the Andean region see Mainwaring, Bejarano and Pizarro Leongomez (2006). 49 government, which leads to deadlock because coalitions can be difficult to form. In addition, term limits and fixed terms complicate the relationship between the executive and the legislature because presidents are difficult to remove. The debate in the existing literature is too narrowly defined. There is good theoretical reason to believe that the interaction between legislative and executive powers alone is insufficient to explain instability in presidential systems. In the words of Cheibub: It is possible, therefore, to stop seeing presidentialism as the main offender in democratic instability and to start looking for other institutional factors that may lead to a better understanding of how these regimes actually work, rather than deriving performance implications from the regime’s constitutional principle. (Cheibub, 2002, p.308) I argue that it is not presidentialism alone, but the interaction between presidentialism and low rule of law that results in the violation of democratic rules. Or more specifically, on how low rule of law impacts the president’s ability to rule without constraint and on how this can be damaging to democracy. This body of literature has focused on breakdown (or regime stability). Above all, the focus was on if a country remains a democracy or if it falls to authoritarian rule. 50 Source: Author’s depiction of argument based on a modification of Cheibub’s How Presidentialism leads to Breakdown Figure (2007, p. 8). To better understand the relationship between constitution type, stability and the rule of law, Cameron, Blanaru and Burns (2004) controlled for constitution type, and measured the different rates of stability when rule of law was strong or weak. This study found that when the rule of law is strong the difference in stability between constitution types is minimal. When the rule of law is weak, however, presidential democracies have only a 25 percent chance of survival, compared to a 56 percent chance for parliamentary democracies (Cameron et al. Presidentialism Minority Government Fixed Term Coalition Term Limit Deadlock Instability Figure 3: Instability of Presidentialism 51 2004).49 To account for the fact that there are far fewer breakdowns in recent years, this study used political stability rates, based on World Bank Institute’s measure of political stability, to control for the smaller number of recent breakdowns. This Article found that the relationship remained consistent: presidential systems were more likely to be unstable at lower levels of rule of law than parliamentary systems. This finding not only supports the hypothesis that presidential systems are less stable, but it also extends the debate by showing a clear and robust correlation between low rule of law and system type. Even so, two critical questions remain unanswered: Firstly, why do presidential systems have, on average, lower levels of rule of law? And secondly, what causal mechanisms lead low rule of law in presidential systems to bring about much higher levels of breakdown or instability? Empirical research shows that there has been a decrease in the number of breakdowns in recent years. “After the third wave of democratization Latin American executives have been unstable, but the democratic regimes have survived” (Marsteintrede & Berntzen, 2008, p.97). Despite the seemingly positive evidence to suggest that democratic governance is strong, the citizens of many countries do not enjoy the benefits of democratic governance. This theoretical puzzle has prompted a shift in the literature. Therefore, to improve our understanding of the democraticness of presidential regimes it is logical to begin with the previously identified perils. 49 It is worth noting that survival rates measure if a regime breaks down and becomes undemocratic, while stability rates measure general levels of the strength of a democratic regime through an evaluation of several components (World Bank, 2004). This study compared breakdown and instability (using World Bank institute measures) to bring Stepan and Skach’s 1993 study up to date and control for the fact that fewer full breakdowns have occurred in recent years. The different concepts of instability will be fully examined in Chapter two. 52 2.7 Quality of Democracy In an attempt to determine why some democracies have not progressed beyond electoral regimes, the quality of democracy literature seeks to uncover the causes of ‘low quality’ democracy. As Diamond and Molino assert there has been a shift from the focus on consolidation to an attempt to assess quality of democracy (2004, p. ix). Unlike the consolidation literature, the quality of democracy research recognizes an in between category and these scholars note that despite the fact that regimes have not broken down, there continue to be problems with democracy. The quality of democracy literature also notes that previous theoretical explanations were unable to explain why so many ‘low-quality’ democracies persisted (Iazzetta, 2004, p.1). The catch-all nature of the term ‘quality of democracy’ warrants clarification for the purpose of this dissertation. This shift in focus from democratic consolidation to quality of democracy implies an improvement or a deepening of democracy, but this the body of literature does not present a parsimonious set of indicators to measure improvements in quality. For example, Schedler notes that the concept of ‘democratic quality’ is still unclear and controversial: “while we have tons of literature as well as a great deal of consensus about liberal democracy's minimum standards, discussion about the standards of democratic quality is still preliminary. Therefore, in the debate, conceptualizing democratic consolidation as democratic deepening amounts to inviting a free- for-all” (Schedler 1998, p.104). Although a plethora of literature has emerged since Schedler’s 1998 assessment, the literature has not moved beyond a laundry list of operationalizable variables. The authors contributing to this literature are forthcoming that their attempt to build a new theoretical perspective is only in its infancy (see for example Iazzetta, 2004, p.2; O’Donnell, 2004, p.10). 53 In an attempt to provide a clear definition of quality of democracy Morlino (2004) argues that quality is dependent on three factors: procedure, content and outcome. Morlino states that a “‘quality’ or ‘good’ democracy may be considered to be one presenting a stable institutional structure that realizes the liberty and equality of citizens through the legitimate and correct functioning of its institutions and mechanisms” (emphasis in original Morlino, 2004, p. 6-7). In so stating, Morlino implies that for a democracy to be of “high-quality” the institutions must function based on a set of fair and stated rules. Such institutions can ensure that the procedure is fair and will more likely lead to a positive outcome. In this attempt to provide a better understanding of the quality of democracy Diamond and Morlino suggest eight dimensions: 1) rule of law, 2) vertical accountability, 3) responsiveness, 4) freedom, 5) equality, 6) participation, 7) competition, and 8) horizontal accountability. In addition to these eight dimensions they emphasis the importance of transparency and effectiveness of representation (Diamond and Morlino 2004, p. x). As operationalizable variables Diamond and Morlino go on to recognize that these concepts overlap and suggest that “democratic quality can be thought of as a system, in which improvement in one dimension can have diffuse benefits for others (and vice versa)” (Diamond and Morlino 2004: x). Therefore, identifying a clear link between a problem in one dimension and its results on another dimension can be difficult. To further refine our understanding of quality of democracy, Levine and Molina (2007) reduce the number of indicators to five, and they include: 1) electoral decision, 2) participation 3) accountability, 4) responsiveness and 5) sovereignty (Levine and Molina, 2007, p. 24). Levine and Molina dismiss the rule of law as a requisite element of quality of democracy, because they state that the study of legality should be done separate from the study of the political process. 54 Instead, they focus on free and impartial elections and political freedoms (Levine and Molina, 2007, p.25). In so doing, they explicitly note that they are not dismissing the important role that legality plays in politics, or in democracy. Other scholars have argued that it is more difficult to separate the concept of legality from the state. With regard to the role of the legal system O’Donnell (2004, p.12) notes that: … it is a mistake to conflate the state with its bureaucratic apparatus. Insofar as most of the formally enacted law existing in a territory is issued and backed by the state, and as the state institutions themselves are supposed to act according to legal rules, we should recognize that the legal system is a constitutive part of the state. As such, what I call ‘the legal state’ (that is, the part of the state that is embodied in a legal system) penetrates and textures society, furnishing a basic element of stability to social relations. For O’Donnell the legal system plays an important role in determining the actions of state institutions. For him, the legal structure provides a foundation upon which to build stable, as in predictable, relations. Linz and Stepan also recognize the importance of the legal system, linking it directly to democratic improvement: “Indeed, the more that all the institutions of the state function according to the principle of the state of law, the higher the quality of democracy and the better the society” (Linz and Stepan, 1996b, p.19). In accepting that the legal system plays an important relationship between different institutions of the state Diamond, Plattner and Schedler state that: It is becoming increasingly clear that without working systems that can provide ‘credible restraints’ on the overweening power of the executive, democratic regimes tend to remain shallow, corrupt, vulnerable to plebiscitarian styles of rule, and incapable of guaranteeing basic civil liberties. In short, they tend to remain ‘low-quality’ democracies” (Diamond, Plattner, and Schedler, 1999, p.2). Although the specifics of the definition of quality of democracy remain unclear, there seems to be agreement among quality of democracy scholars that checks on the power of the executive are necessary. Furthermore, the key to such checks lies in the ability of state institutions to restrain 55 the executive (and as an extension, other political actors). As a procedural dimension of the quality of democracy, horizontal accountability is upheld, at least in part, through the rule of law.50 Both horizontal accountability and the rule of law are important factors in determining the stability of the institutional structure that mediate the functioning of state institutions (for an application of this see Hagopian, 2004, p.125). Resistance to the notion that a set of state level criteria is a necessary to check the power of the executive has come from scholars that see quality of democracy as being a strictly liberal democratic phenomenon. In part, this belief stems from the liberal democratic understanding that institutional accountability can be reached through the implementation of the rule of law. For liberals, the constitutional rules uphold democracy and so the concept of democracy cannot be separated from the concept of constitutionalism. In the words of Preuss (1995), independence from the arbitrary and capricious subjectivity of a ruler is the most elementary meaning of constitutional rule. A regime which does not meet this standard is simply out of date; it may endure for a time, perhaps even a fairly long time, but since it lacks legitimacy and is erected on pure power, it degenerates to despotism (Preuss, 1995: 5). Preuss recognized the difference between an enduring democracy and one that subjects the leaders to the rules. The legitimacy of these rules is one way to determine if a democracy will endure. Essentially for Preuss a non-liberal democracy is not a democracy. Likewise, Linz and Stepan (1996) state that the rule of law, embedded in constitutionalism, is necessary for a democracy to be consolidated: “All significant actors—especially the democratic government and the state—must respect and uphold the rule of law” (Linz & Stepan, 1996, p. 10). This 50 It is important to note that horizontal accountability has and can be upheld in other ways; for example, through a strong party system, as will be argued in the following chapter. The argument here, however, is that this accountability is only likely to be predictable when it is enshrined in, and upheld by, respect for the rule of law. 56 requires “a clear hierarchy of laws, interpreted by an independent judicial system and supported by a strong legal culture in civil society” (Linz & Stepan, 1996, p. 10). Whereas, Diamond (1999, pp. 11-12) was explicit that a liberal democracy has a rule of law, Linz and Stepan (1996, p. 15) stated that “. . . no regime should be called a democracy unless its rulers govern democratically.” The need for a predictable set of rules that limit the actions of government is not necessarily linked only with maximal definitions of liberal or consolidated democracy. The link between rule of law and stable democracy is exaggerated because the defense of the rule of law upholds liberalism, not only democracy. Liberalism and democracy are two different concepts. Rule of law is desirable because, among other things, it adds predictability and institutionalizes the resolution of conflicts. Consolidated democracies are often assumed to have respect for the rule of law because in a consolidated democracy the tension between constitutional restrictions and democratic rule is overcome through an institutionalized state-society relationship. Some scholars argue that by definition there is tension between rule of the people and the qualification of this rule (Elster, 1988, p.2; Habermas, 1995). This tension comes from the fact that, on the one hand, constitutions limit the power of the majority, while on the other hand, democracy is rule of the people. Since constitutions limit the power of the people, constitutions operate as “constraints on the governing ability of majorities” (Sunstein, 1988, p. 327). When this relationship is respected, however, any tension that exists between limiting the power of the people is overcome by the benefits of predictability delivered with a constitution that is viewed as legitimate. When the rules are not seen as equitable, or when they are not respected and one group possesses sufficient power to challenge other groups, this equilibrium is threatened and actors will seek other mechanisms to influence the political regime (Przeworski, 57 1991). In democracies this influence generally comes from elections—but when elections are not seen as free and fair actors seek other measures of accessing power or influencing the rules. How the power of rulers is constrained is a concern for liberal democrats, but for enduring democracy or any sort it is necessary to have a clear set of respected rules. Democracy’s most minimal criteria—free and fair elections—require state institutions to uphold it. A democratic regime can not be upheld without some level of democratic state. This is not a component only of liberal- representative democracy; instead, a democratic state is necessary to uphold elections. To date, the quality of democracy literature has been dominated by scholars first and foremost interested in representative democracy (Diamond and Morlino, 2004, p. xiii). Although the study of representative democracy has been dominated by those interested in liberal democracy, a few scholars such as O’Donnell and Coppedge recognize that there are forms of democracy other than liberal democracy—such as popular sovereignty—that are equally valid (Coppedge, 2004, p. 247). In such forms of democracy a “democratic state is obliged to carry out popular will” (Coppedge, 2004, p.247). How such a state could be evaluated or measured is the topic of the next section. The components of the state will be explored in the following section. Plattner fears that in an attempt to overcome this normative component of quality of democracy, scholars try to hide behind measurable indicators, but these in fact, enshrine the particular “preferences of scholars as objective standards of quality” (Plattner, 2004, p. 107). Similarly, Altman and Pérez-Linan (2002) recognize this normative component and instead of attempting to overcome it, or ignoring its significance, they analyze “in which countries democracy performs better given some normative standards. Much of the debate about the quality of democracy is about the identification of these normative standards” (Altman and Pérez-Linan 2002, p. 87), and they cite examples of a lack of horizontal accountability. The normative component is 58 interesting, but so too are procedural components. The quality of democracy literature shows the importance of looking at the state level but the role of the state remains only one component of quality of democracy. The important role that the state plays in upholding a democratic regime precedes the search for measures of quality of democracy. 2.8 Conclusion This chapter has established how democratic regime stability, political stability and institutional stability have been used in the literature. It argued that when elections are used as an indicator of democratic stability, a country may have a functioning democracy at the regime level; however, there are a number of countries that have come to hold democratic elections without other features of democracy. This has given rise to a category of countries that can be classified as electoral authoritarian. Examples include Zimbabwe, Russia, and Singapore all of which have multiparty elections that coincide with authoritarian governance (Schedler, 2006, p.1). Under such regimes, leaders may continue to be elected, but citizens have not come to enjoy the full benefits of democracy. In order to ensure the full benefits of democracy, democratic regimes require democratic states. The quality of democracy literature attempts to provide us with operationalizable variables to access the democraticness of a country by considering state level factors other than elections. This literature falls short of providing clearly established operationalizable variables, especially when we consider the notion of democraticness outside of liberal democracy. The minimal criteria for democracy—free and fair elections—cannot be upheld without democratic state institutions in place to ensure that citizens can hold their leaders accountable. That is to say, without some aspect of horizontal accountability, vertical accountability is undermined. In addition, for these rules to be considered democratic they must have the capacity 59 to hold the rulers responsible for their actions so that rulers are unable to run roughshod over political institutions. My analysis separates the procedure from the outcome and emphasizes the importance of procedure. By focusing on state level attributes of presidential systems this dissertation seeks to determine how the perils of presidentialism interact with low rule of law. In so doing, this chapter provides the basis for the rest of this dissertation to build on in its attempt to provide insight into why presidential systems and instability are correlated. Lastly, this chapter overviewed the literature on quality of democracy and established the overlap between this concept and the notion of institutional instability. Although the dissertation contemplates many of the same questions as the literature on quality of democracy, and it contributes to this literature, it focuses on the more narrowly defined concept of institutional instability. 60 CHAPTER THREE 3.1 The Rule of Law and Democratic Stability The rule of law is characterized by the supremacy of law over the will of individuals. An overview of the rule of law literature shows that most research measures the rule of law through a proxy. The judiciary is the body of government that enforces law and therefore is fundamental to the rule of law. Since the terms rule of law and judicial independence are frequently used interchangeably, it is important to outline how the literature uses and distinguishes the two concepts. In order to determine the best means of evaluating the rule of law, this chapter begins with the literature that explores the relationship between the rule of law and democracy. Despite the seemingly evident nature of the claim that the rule of law is important for democratic stability, the relationship between the two concepts is not well understood. Specifically, the causal mechanisms that lead a country with low respect for the rule of law to become democratically unstable are not well known. As Russell and O’Brien (2001) state, the judiciary can contribute to the breakdown of rule of law through collaboration with the executive, or through passivity. Problematic executive-judicial relations have prompted a growing scholarship to address the importance of judicial independence and to identify its key attributes.51 From this literature, we know that when the rule of law is weak, the executive can easily seek unconstitutional or illegal means of resolving political problems. Intuitively this makes sense, but we need to develop a better understanding of how it occurs. Several attempts have been made to quantify different components of the rule of law. This chapter will first 51 In every Latin American country the constitution provides for the independence of the judiciary, although the independence of the courts is not always guaranteed (World Bank, 2000, p. 181). 61 provide an overview of these measures. It will then justify the dissertation’s focus on judicial independence and operationalize it. This will provide the reader with both a better understanding of how previous studies have measured judicial independence, and show how it will be examined in Venezuela. Empirical evidence suggests that there is a disjuncture between the letter and practice of the law, therefore, prior to concluding, this chapter overviews the importance of looking at informal institutions. 3.2 The Rule of Law The rule of law refers to the supremacy of law over the will of individuals. Laws, when well respected and implemented uniformly, add predictability, stability, justice and equality to the society in which they function. An examination of the literature shows that previous attempts to evaluate and measure the rule of law have done so in different ways and on many levels. This section first surveys the literature and then it justifies the dissertation’s focus on judicial independence. It then demonstrates how judicial independence will be operationalized in this study. In so doing, this dissertation presents a collection of elements of judicial independence that will be used as the guideline for its evaluation. As will be demonstrated, this is necessary because there is a shortage of statistical data available in the quantitative realm. Moreover, qualitative studies have tended to focus narrowly on one indicator, and so do not provide an in- depth explanation. The debate on the importance of the rule of law in relation to democratic stability finds its antecedents in the law and development literature of the 1960s. This body of literature concentrated on the importance of law for economic development and was founded on the theoretical belief that democratic stability spurs economic development (Lipset, 1959; Przeworski & Limongi, 1997, p. 155). Lipset (1959) stated that “the more well-to-do a nation, 62 the greater the chances that it will sustain democracy” (Lipset, 1959, p.79).52 More specifically, Lipset argued that the increase in education and the reduction of inequality—in the form of a growing middle class—improve the probability that democracy will be stable. Other studies have refuted this relationship. For example, Przeworski and Limongi (1997, p. 177) concluded that “the emergence of democracy is not a by-product of economic development,” but they recognized that once established, economic conditions play an important role and democracies are more likely to survive when economies are growing. Modernization theory alone fails to explain why Latin American nations shifted toward authoritarianism in the late 1960s, during a period of relative prosperity and growth and toward democracy in the 1980s (Remmer, 1995, p.106). This logic holds true for the case of Venezuela where, despite increasing equality and a growing economy, democracy has been unstable.53 Largely due to the shortcomings of modernization theory, the law and development literature did not contribute directly to the debate on democratic stability until O’Donnell revisited the importance of rule of law. O’Donnell (1998, and 2001) noted that in many unconsolidated democracies the executive had a tendency to supersede the law. In such cases, the executive, seeing itself as above the law, ruled as it saw fit; upholding its own interests with few constraints and little respect for the population’s will. In an attempt to define the rule of law, O’Donnell stated that it existed when: 52 In many of these earlier studies political regimes were seen as dichotomous, either dictatorships or democracies. More recent literature has contributed to narrowing this debate. The most common factors include wars, death of the dictator, foreign pressure, and economic crises (Przeworski & Limongi, 1997, p. 157). With a shift in focus away from legal structures the scholars in this field of research questioned whether democratic stability was endogenous or exogenous to economic development (Preworski & Limongi, 1997). This research focus diverged attention away from the role of the legal system. Later work, however, showed that several factors other than modernization led to the collapse of dictatorships and to the emergence of democracy 53 The relationship between economic development, inequality and democratic stability in Venezuela is discussed in chapter four. 63 whatever law there is, this law is fairly applied by the relevant state institutions, including, but not exclusively, the judiciary. By fairly applied I mean that the administrative application or judicial adjudication of legal rules is consistent across equivalent cases, is made without taking into consideration the class, status, or power differentials of the participants in such processes, and applied procedures that are pre- established and knowable (O’Donnell, 1999, p. 308). Above all, O’Donnell was concerned with ensuring that leaders are subject to the law, and that state institutions apply laws fairly and consistently. He provided a solid starting point from which to identify the institutional mechanisms that can uphold the rule of law. He did not, however, test the theoretical assertions that he presented. His observations were used to explain the persistence of unconsolidated or low quality democracy in many countries. O’Donnell argued that in the absence of a state that can uphold a democratic rule of law, a universalist legal system, and social conditions supportive of citizenship, “we face a new monster: democracies without effective citizenship for large sections of the political community” (O’Donnell, 1995, p.34). The stagnation of these democracies led some to conclude that they were not in fact progressing toward liberal democracy as anticipated. 3.3 Existing Measures Related to the Rule of Law Several datasets have been created that attempt to quantify the rule of law. This section reviews these data to show that none is a comprehensive measure of the rule of law. They are useful for illuminating specific aspects of the rule of law, but considered independent of other sources, none is sufficient to provide an in-depth understanding of the rule of law, nor are these data capable of illuminating the causes of low rule of law. This critique will be followed by a discussion of qualitative studies which have tended to focus more narrowly on one indicator. 64 One of the most common measures of democracy in comparative politics literature is Freedom House’s measures of political and civil liberties.54 Freedom House goes beyond measuring democracy and has been used to measure, more broadly the level of governance.55 Specifically, Freedom House attempts to capture aspects of governance through a 40-point ranking scale to rank political rights, and a 60 point ranking scale for civil liberties. In response to Munck and Verkuilen’s (2002) criticism that Freedom House did not publicize its aggregate data, Freedom House has been more forthcoming and has since released ratings on their subcategories. Still, the utility of this resource is confined to providing a snapshot of democratic stability by classifying countries into the three categories of free, partially free and not free. In and of itself, Freedom House reveals little about the rule of law.56 Freedom House measures, however, do allow us to identify key years that mark a problematic break from stable democratic governance. To understand the events in these years, however, requires more in-depth study. In an attempt to measure changes in the rule of law, the World Bank Institute has created a variable designed to measure citizens’ perceptions of the rule of law, crime rate, enforcement of contracts and predictability. According to the World Bank Institute’s rule of law score, the rule of law in Venezuela has taken a sharp decline in recent years: whereas in 1998 Venezuela scored 29.8 on this indicator, in 2005 this had fallen to 9.2. Other indicators, such as corruption, did not plummet as low. For example, Venezuela’s ranking on control of corruption changed 54 For uses of Freedom House data see Linz and Stepan (1996), Diamond 1996 & 2002), Stepan and Skach (1999). McClintock, 2006 provides further justification for the use of Freedom House scores as measures of democracy. Freedom House is often used as a measure of democracy even through it measures civil rights and political rights. These categories correspond with Dahl’s characterization of polyarchy. Freedom House is a more complete measure than ACLP, which only looks at elections, specifically if elections occur and if there is competition for them. See also Munck & Verkuilen 2002, and Munck 2008. 55Mainwaring and Shugart (1997) use Freedom House to measure democratic breakdown if the Freedom House score goes over 5. 65 from 17.6 in 1998 to 16.7 in 2005 (Kaufmann, Kraay & Mastruzzi, 2006).57 The large change on the rule of law indicator and the relatively small change on corruption demonstrates that other related measures exist, but that they may be independent to the rule of law, thus increasing the need to study them in greater detail. Since the concepts of corruption and the rule of law are often linked, it is important to distinguish between them. The level of corruption has remained relatively constant, while the indicators of rule of law have fallen dramatically. This suggests a significant disjuncture between the two concepts. Corruption is defined as “the extent to which public power is exercised for private gain, . . . as well as ‘capture’ of the state by elites and private interests” (Kaufmann, et al., 2006, p.4). While there is an inherent relationship between corruption and rule of law, the variables used to measure them act independently. Another common measure of corruption is compiled by Transparency International (TI). TI’s corruption variable is based on perceptions of corruption, including political corruption. This gives us some insight into the perceived level of corruption in a given society and also into how effective the law is at curbing corruption. In 2007, Transparency International ranked Venezuela 162 out of 179 countries (Transparency International, 2007, p.7). This ranking was based on survey research conducted with business people and country analysts. Transparency International recognizes that an independent judiciary is necessary to uphold the rule of law and combat corruption but makes no attempt to measure how independent the judiciary is (Transparency International, 2007, p.3). With respect to the rule of law, the World Bank Institute’s measure is based on four criteria: 1) citizens’ perceptions; 2) incidence of crime; 3) enforcement of contracts, and; 4) 57 Control of corruption is measured on a percentile ranking. For a detailed description see Kaufmann, Kray & Mastruzzi (2006). 66 effectiveness and predictability of the judiciary.58 These categories provide a useful skeleton around which to organize the following survey of the literature because most other indicators fall into these broad categories. The first category of the World Bank Institute’s rule of law score is citizens’ perceptions. Perceptions are often, but not always, a reflection of reality. Therefore, it comes with an inherent subjective or normative component. When the rule of law is enshrined, it contributes to the establishment of a hierarchy of norms that are internalized through social processes which make actions and expectations predictable. Once established, a shared normative framework spurs a political culture, rooted in civil society and respected by both the state apparatus and the population (Linz & Stepan, 1996, p. 14). Socio-cultural theories of political science have cited the respect for societal norms as having an important impact on democratic stability (Almond & Verba, 1963, Putnam, Leonardi, & Nanetti, 1993). Tracking citizen’s perceptions in the Latin American context, the Latinobarometro59 is a widely cited source of public opinion data. It uses polls to gather the population’s perception of political institutions.60 This data shows a negative or pessimistic perception of democracy in Latin America. As a region, only 29% of the population is satisfied with democracy (Latinobarometro, 2004). This data shows that a similar low level of confidence applies to the judiciary as well as other individual governmental institutions, as shown in Table 4 below. 58 See: http://info.worldbank.org/governance/kkz2002/q&a.htm#2 Each of these 4 sections includes several subsections. In fact, to arrive at the final rule of law score the World Bank uses an amalgamation of 25 sources from 18 organizations, making it one of the most extensive on the rule of law. It is relied on here to indicate that citizens do not have a high perception of governing institutions. Although there is a lack of available data, the large number of countries covered by the World Bank makes it the best source to use. For another example see Kunicová and Rose-Ackerman (2005) which relies on the World Bank’s Control of Corruption Index which aggregates surveys of perceived levels of corruption across countries. 59 For a more complete explanation please see www.latinobarometro.org. It should also be noted that recent discrepancies in data from Latinobarometro call into question the accuracy of its findings. 60 For studies that use public opinion as a measure of judicial effectiveness please see (Smithey et. al. 2000; and Gibson et. al. 1998). 67 Table 4: Public Perception of Institutions in Latin America Institution Confidence Rate Government 30 % Parliament 24 % Judiciary 32 % Church 71 % Democracy 29% Source: This table was created by the author taking statistics from Latinobarometro, 2004. When prompted to identify why, respondents reported “a lack of equality” as the key determinant of efficiency. Clearly, citizens in Latin America do not perceive their political institutions to be functioning fairly. This means that Latin American governing institutions are not perceived to have high levels of equality. The perceived lack of equality suggests that the public does not have confidence in the state’s ability to create and enforce fair laws. Poor perceptions of political institutions are linked to a broader problem of citizenship issues in Latin America (Karl, 2000). An improvement in citizen rights stems from bolstering elements of citizenship, including those related to vertical accountability, such as party participation, trust, and civil society organizations.61 Public opinion is in part a reflection of how citizens feel about their judicial systems. In Venezuela, public opinion toward the judiciary changed considerably over Chávez’s period in government. As the data in Figure 4 shows, in 1999, thirty percent of the population had a positive or very positive perception of the judiciary, by 2006 this had risen to over fifty percent. These survey statistics, taken from Consultores 21’s perception of institutions’ historical series data, shows an overall increase in the perceived role of the Supreme Court. It also shows an increasing polarization; by 61 Extensive studies regarding problems related to citizenship in democracies in these areas can be found in O’Donnell, 1994, 1999, 2004; Coppedge, 2002b; Mainwaring, 2006; Karl 1999; and Putnam 1995. 68 2002 respondents ceased to choose the more moderate options of positive or negative and instead answers were either very positive or very negative.62 Figure 4: Perception of the Venezuelan Supreme Court 1999 – 2006 Source: This is the author’s recreation of survey data taken from Consultores21 (2007) Historical Series Data. The data was collected through surveys by Consultores conducted several times a year, across the country. Participants were asked to rank their perception of the Supreme Court and given five options: Don’t know/Don’t Care; Positive, Very Positive, Negative or Very Negative. (Ns/Nc; Positivo 1; Positivo 2; Negativo 1; Negativo 2) Author’s translation. Public opinion experts in Venezuela report that more than simply being an adequate depiction of the population’s true perception, answers to questions about support for government institutions tend to directly reflect support for or against the government (Interview, 558). For example, if an individual supported the government they would give a high rating to all public 62 The survey did not note a change in question to indicate that these categories had been removed. Individuals who work on the survey confirmed that they had not been changed. 69 institutions, and therefore according to these Venezuelan public opinion experts, this type of data does not give an adequate depiction of perception (Interview, 558). This expert’s opinion suggests that polls are a reflection of the support for the leader, not a reflection of how well the institution is operating. The later is what we normally seek to measure when we look at public perception. If we are measuring performance based on public opinion then we could conclude that the situation has improved. This is problematic, however, because according to other measures of performance, such as impartiality, and non-politicization, little has improved. Public opinion is an important aspect of democracy—and the disjuncture between opinion and performance is an indication that we need more detail to truly understand what is occurring. Data that shows low public opinion illustrates a problem, but to understand the root of the problem requires an explanation of institutional performance. While recognizing that public opinion is an important aspect of judicial independence, this dissertation is focused predominantly on horizontal accountability. Studying citizens’ perceptions, other than to signal where problems may exist, is more conducive to projects that look at vertical accountability and at studies that focus on ways of increasing civil society’s involvement in the political process.63 The second component of rule of law identified by the World Bank Institute is crime rate. Crime rate measures the frequency and types of crimes committed. This indicator is of concern to those interested in measuring how effective and responsive judicial institutions are and how they deteriorate or improve over time.64 To treat this as a significant variable, however, presupposes that there is a functioning judicial system. A low reported crime rate cannot (in many countries) be taken as indication that criminal activity is low. In some cases, low crime rate 63 There are several comprehensive studies on Citizens’ perceptions of the judicial system in Venezuela. See (Roche & Richter, 2003; Casal, Roche, Richter & Hanson, 2005). 64 On a related subject, Transparency International provides an index of corruption levels based on survey data. www.transparencyinternational.org 70 indicates that crimes are not being reported and are being dealt with outside the judicial system. The use of crime rate as an indicator assumes a functioning judicial system and therefore, is a problematic measure of the rule of law.65 Similarly, the third component of the World Bank Institute’s ratings, enforcement of contracts, also presupposes a judicial administrative capacity. This measure is of great significance to those concerned with the rule of law as it relates to regulating market economies and providing predictability for investors. Without adequate state institutions to set standards for the regulation of contracts, the study of how well contracts are enforced is not revealing. Once it has been determined that such state institutions meet a minimal standard, the enforcement of contracts can be a useful means of determining the effectiveness of state institutions. Evidence from Latin America suggests that contracts are not enforced uniformly. Although at times predictable, enforcement is likely tied more closely to one’s position in society and the strength of one’s contacts than to a legal code. For example, Hernando de Soto demonstrated that in Peru getting a business license can be up to 1,500 times faster with the right connections (de Soto, 1987, p. 133). Similarly, Erik Jensen notes that the formal legal rules do not always determine actions and that operating outside of the formal legal system is especially prevalent for business interests who generally rely on close-knit groups of friends (Jensen, 2003, p. 355).66 Often, businesses, and the lawyers that represent them, are aware of how the judicial system functions and of the power relations that operate outside the formal system. To conduct business in these societies it is necessary to work outside formal legal channels to settle potential 65 For a comprehensive overview of crime and security in Venezuela see (Chacao, 2006). 66 For an analysis of the difficulties of moving from clientalistic systems such as those present in Latin America, to ones more directly representative of the interests of the population who argues that clientelism undermines citizenship, see (Fox, 1994). 71 contract disputes. Measures that look at the formal system, therefore, do not reflect reality. The predictability and enforcement of contracts is problematic when a strong legal system to oversee them is absent. Therefore, considered alone, the enforcement of contracts does not capture the full picture. The final component used by the World Bank Institute’s measure of the rule of law is effectiveness and predictability. The effectiveness of a judicial system relates to how capable it is of delivering on constitutionally ascribed responsibilities. Predictability of the judiciary relates to whether judicial rulings are applied equally across cases with similar circumstances. Predictability assumes that cases will be subject to the same procedures by the court system and in return equivalent punishments will be prescribed. This means that the application of rules should be immune from political control (Hart, 1997). When this condition is not met, the judiciary lacks independence. In democratic systems, where executives by design change regularly, judicial branches should remain predictable. The efficiency and predictability of the judicial system is heavily influenced by judicial independence, but because the efficiency and predictability is an aggregate indicator, it tells us little of the actual functioning of the judiciary. Nor does it tell us the components necessary to establish judicial independence. To determine how to evaluate if the judiciary can deliver on constitutionally ascribed responsibilities, I draw on work in the field of judicial independence. Predictability is evaluated based on the equal application of the law—that the law is applied with little regard for the actors involved and is applied equally. Equal application is determined by independence, and therefore a focus on the components of independence is necessary. The literature on the rule of law supports the assertion that the independence of the judiciary is one of the most pressing problems in relation to the rule of law (Verner, 1984; 72 Larkins, 1996; Jensen, 2003). After all, the judiciary is the branch of government responsible for enforcing the rule of law. Without an independent judiciary it is highly unlikely that the enforcement of a rule of law will be impartial. To give a more accurate picture of how the judiciary functions requires detailed process tracing of executive-judicial relations. Prior to this, however, this chapter turns to an elaboration of judicial independence. 3.4 Judicial Independence To demonstrate that judicial independence is an important component of the rule of law, a survey of the literature will be used to determine the criteria by which judicial independence will be evaluated. Prior to presenting components of independence, it is necessary to define judicial independence. In the words of Larkins: judicial independence refers to the existence of judges who are not manipulated for political gain, who are impartial toward the parties of a dispute, and who form a judicial branch which has the power as an institution to regulate the legality of government behavior, enact ‘neutral’ justice, and determine significant constitutional and legal values (Larkins, 1996, p.611). Similar definitions are offered by organizations that aim to foster judicial independence. For its part, the United Nations (UN) sets forth standards for the Basic Principles on the Independence of the Judiciary (1996). Although these standards are not laws, many countries adopt them as models for conformity. In building these standards, the UN defines judicial independence as “judges with full authority to act, free from pressures and threats, adequately paid and equipped to carry out their duties” (United Nations, 1996, paragraph 12).67 Additionally, although short of providing enforceable standards, the International Bar 67 Increasing violence toward lawyers and judges provoked the United Nations commission on Human Rights to appoint a Special Rapporteur to investigate these problems and to focus on the promotion of universal judicial independence. 73 Association recommends minimum criteria for the functioning of independent judiciaries (Shetreet, 1985). These definitions suggest that judges must posses the ability to act without political influence. They do not, however, provide a methodology of how to evaluate or measure judicial independence, nor do they indicate how to achieve independence. Despite a shared belief among scholars on the importance of judicial independence, the concept is not easily measured (Verner, 1984; Wilson & Cordero, et al., 2004). Evaluating independence is complicated by the small number of quantitative studies that measure independence. This lack of indices and the incomplete data within these indices mean that it would be lax to rely solely on quantitative studies. 68 Therefore, I turn to qualitative literature to identify the most important elements that affect independence. As will be shown, no single qualitative study alone is sufficient because they use a number of different indicators to show judicial independence.69 This demonstrates that there is no consensus in the literature. Qualitative literature is useful to establish the aspects of judicial independence that impact institutional stability (Fiss, 1993; Feld & Voigt, 2002; World Bank, 2004).70 Joel Verner’s 1984 review of the literature highlights a positive correlation between judicial independence and the level of political stability. A recent and growing literature on the comparative study of political institutions has marked a return to identifying the link between judicial independence and democratic stability (Larkins, 1996; Weingast, 1997; Larkins, 1998; 68 Both Polity IV and the ACLP datasets, two common sources for data related to democracy, give no consideration to the judiciary. The Gutenberg Quality of Democracy dataset includes indicators for judicial independence that are borrowed from Porta, López-de-Silanes, pop-Eleches & Shleifer. These include variables that measure judicial independence, Tenure of Supreme Court Judges, Tenure of Administrative Court Judges, Case Law, Judicial Independence, Rigidity of Constitution, Judicial Review and Constitutional Review. The World Bank Institute’s rule of law measure, the most oft cited statistics on rule of law, only began in 1995 making it difficult to use this measure for long term comparisons. 69 Take for instance Matthew Stephenson’s (2003) analysis that considers only judicial review as a proxy for judicial independence. 70 For the impact that judicial non-independence has on investment see also (Gregorio, 2003). 74 Smithey & Ishiyama, 2000; Helmke, 2002; Iaryczower et al., 2002; Maravall & Przeworski, 2003). In these studies concerned with judicial independence, there is a tendency to focus on Supreme Courts. Following the logic of Larkins, this dissertation will focus on Supreme Courts. Larkins states that judicial branches are hierarchical and the Supreme Court (or Constitutional Court as it is sometimes called) sits at the apex.71 As the top legal authority, the Supreme Court and the constitutional laws it enforces represent the highest level of the legal hierarchy. Together, the Supreme Court and constitutional law sustain the overall framework of the rule of law within a country (O'Donnell, 1999). Constitutions lay out how judiciaries are structured and play a key role in analyses of the judiciary. After justifying the importance of the Supreme Court, Larkins notes that the executive can use the court to strengthen its power and weaken the separation of powers by influencing judges (Larkins, 1998). Clearly it is important that judges have the capacity to make independent decisions; however, there are several means to ensure this independence. This paper borrows from Owen Fiss’ system of classification and divides the examination of independence into three broad categories, “party detachment,” “individual autonomy,” and “political insularity” (Fiss, 1993). Party detachment, as it is aptly named, suggests that judges should not have links with parties (Fiss, 1993, p. 55). Individual autonomy deals with the power that one judge has over another in the judicial hierarchy. This also includes the impact of bureaucratic (administrative and 71 In Venezuela, it is difficult to track Supreme Court performance. The World Bank reported that Venezuelan Courts only started to document decisions in 1997 (World Bank, 2002, p.2) and through their modernization project between 1997-2002 the publication time of decisions improved from seven years, to immediately (via internet). In addition, the judiciary, Public Ministry, and the Ombudsman, do not collect data and statistics. Transparency Venezuela reports that without this information you cannot evaluate their status or their progress (Salas, Lander & De Fritas, 2004, p. 5). 75 budgetary) practices on judges (Fiss, 1993, p. 55).72 Lastly, political insularity deals with the relationship between the judiciary and other state institutions (Fiss, 1993, pp. 56-57).73 Although party detachment is a fairly straight forward concept, individual autonomy and political insularity will be explored in greater detail below. I will draw on scholarly work in each of these areas to justify how each of these categories will be evaluated. This criterion will be included in the elements this dissertation uses to operationalize and evaluate independence. 3.4.1 Individual Autonomy: The nascent research on comparative constitutionalism suggests that provisions of tenure, appointment and removal are important for a judge to maintain autonomy. These features have been used to distinguish levels of independence in different countries.74 Research in the area is limited by the fact that little research has been done outside of the United States: comparativists know precious little about the judicial and legal systems in countries outside the United States. We understand little or nothing about the degree to which various judiciaries are politicized; how judges make decisions; how, whether, and to what extent those decisions are implemented (Gibson, et. al., 1998, p.343). To improve our understanding of how judicial systems work, this dissertation focuses on the key components that ensure independence. Understanding the rules of tenure is one way to provide valuable insight into the true functioning of the judicial system. 72 In Fiss’ categorization he is most concerned with the power that one judge has over another in terms of judicial hierarchy, that is to say, a higher court judges ability to influence lower court judges. The literature suggests that the following: 1) Financing elements are related to the annual budget: A) Who elaborates the judicial budget? B) Who approves the judicial budget? C) Who allocates the judicial budget to lower courts? D) Who supervises the execution of the budget? E) Is there an amount stipulated by law? And, 2) What administrative capacity is assigned? A) Number of justices per 100, 000 inhabitants? B) Is the Judiciary considered efficient? C) Who is responsible for assigning cases? D) How do cases come before the Supreme Court? 73 Fiss warns that judges with too much independence can be a threat to democracy. This warning is an indication that not all judges have democratic ends in mind and their actions should be kept in check. 74 It should be noted that the comparative constitutions literature is of limited use here. The propensity of these scholars to assume that constitutions work as they are intended confines their use to the theoretical realm. For a good overview of this literature see: (Epstein,2001; Jackson, et. al., 2002; Russell, & O'Brien, 2001). 76 A judge’s tenure is dependent on both the procedures for appointment and removal. In Fiss’ classification, the appointment of judges who did not have partisan affiliation was an important way to ensure independence. To avoid nepotism and encourage meritocracy, appointments ought to be done through a non-politicized process (Wilson, et al., 2004). One means of curbing politicization is to increase the number of individuals involved in the appointment process. Appointments should be based on qualifications, through the implementation of minimum criteria including, for example, experience and education. A non- politicized process increases the probability that a judge will be impartial (Smithey & Ishiyama, 2000; Madhuku, 2002). In general, we can evaluate the formal procedures for appointing judges through the provisions laid out in the Constitution. The length of a judge’s term is also an important factor that can help ensure independence. Hamilton argued, in the Federalist Papers, that judicial authority could be preserved through life tenure, which acts as a barrier to the encroachments of the other bodies of the government on the judiciary and is also the best method to ensure a steady upright and impartial administration of the laws (Kramnick, et al., 1982).75 When judges lack secure tenure, they are inhibited from making decisions free from the fear of negative retribution. Manipulation and politicization are easier when a judge’s livelihood is on the line, or can be used as collateral. Scholarly work has used provisions for tenure and term length to evaluate the prospects of a judiciary being independent. For example, Brian Loveman (1993) argues that security of tenure is the most fundamental of the guarantees of judicial independence and he notes that the reality of security of tenure is dependent on how judges are removed from office (Loveman, 1993). Similarly, Peter Russell (1987) emphasizes the supremacy of removal procedure and 75 It is important to note here that encroachment could more easily occur when judges did not have adequate tenure, it was not a defining feature of judicial independence. 77 argues that this is necessary to protect judges from political authorities who may be displeased with their decisions, especially when a case impacts their interests. To foster independence, most nations provide for a formal, institutional procedure for removal from office (Von Lazar, 1972). In order to have judicial independence, the key issue in all these different removal procedures is that it must be made via a process that is free of political rivalry and motivation. Life tenure alone is not enough: As Gretchen Helmke (2002) demonstrated, while Supreme Court justices in both Argentina and the United States have life tenure, in Argentina, justices serve an average term of only 5.6 years versus 16.3 years in the United State (Helmke, 2002, p.292). The discrepancy between formal and actual tenure shows that similar rules in different countries have very different outcomes. Helmke’s finding suggests that factors other than the formal procedures impact tenure. Looking at only tenure provisions and other formal procedures fails to explain why there is a large discrepancy between the rules of tenure and how long judges actually serve. Instead, we need to focus on how different judicial systems actually function. In short, if judges fear that their interpretation of the law compromises their security of tenure they are less likely to rule impartially. That being said, there must be provisions to remove incompetent judges. Unless the judicial system can purge incompetent, ineffective, inadequate, careless, incapacitated, senile justices, those who abuse their power, and those who do not conduct their jobs, it cannot be considered effective (Reardon, 1974). Requirements for dismissal vary depending on country, but include: special laws; permission of judicial councils; and impeachment or conviction for a crime. This suggests a gap between the letter and enforcement of the law. 3.4.2 Political Insularity: 78 According to Fiss, branches of the government must be protected from the undue infringement of other branches of government (Fiss, 1993).76 By definition, “political insularity enables the judiciary to act as a countervailing force within the larger governmental system” (Fiss, 1993, p. 56). To reiterate, the concept of an independent judiciary requires that other branches of government not exercise direct control over decisions of the judicial branch (Henley & Haynes Suhr, 2004). Therefore, how can we measure whether or not insulation exists? One means of evaluating political insularity is to determine if and how often judicial branches ruled against the government (Rosenberg, 1992, pp. 370-371; Tate, 1995; Rosenn, 1987; Verner, 1989). For one, Robert Dahl (1957) argued that if a court only ruled against the government occasionally it could be taken as an indication that the court did not have true independence. Helmke’s (2002) Strategic Defection Theory questioned if the court’s ability to rule against the government was a good indicator of independence. She demonstrates that, in the case of Argentina, judges do not necessarily remain loyal to current presidents, but are strategic and take into consideration future governments and the perceived interest of these governments (Helmke, 2002).77 Therefore a ruling against a current leader could be as politically motivated as ruling in favour of them. Specifically, if judges anticipate a change in administration they tend to rule in a way they calculated to be favorable to the incoming government. This theoretical qualification suggests that court rulings against a government alone, cannot be a true indication of independence.78 76 Fiss was also concerned that judges should not be given too much independence and demonstrated that it should not be assumed that judges with independence would act within democratic means. 77 It should be noted that Helmke (2000; 2002) used only Argentina to develop this theory. Her later work Helmke (2005) added possible case studies of Mexico and Venezuela, but this work has not yet been fully developed. 78 Initially, this dissertation attempted to shadow the methods used by Helmke (2002) to examine the turnover rate of Supreme Court judges and to code case decisions as favorable or unfavorable to the sitting and incoming administration to evaluate if SDT was being used in Venezuela. The unavailability of statistical information made this endevour difficult. At the time of writing the Supreme Court of Venezuela was in the process of compiling a list 79 Another way to measure political insularity is through the institutional checks provided by the Constitution, such as judicial review. Judicial review provides a check on the executive to ensure that it cannot rule without limits. Specifically, judicial review is the process by which courts have the right to determine if laws are constitutional. The concept stems from the Marbury v. Madison case in the United States, which determined that the power to judge the constitutionality of laws fell within the jurisdiction of the courts (Lijphart, 1999). As Austrian constitutional architect Hans Kelsen has argued, judicial review should be handled by constitutional courts (Tate & Vallinder, 1995). Judicial review is premised on the belief that it is necessary to control constitutional order to assure the protection of fundamental rights (Cappelletti, 1971). When a court can rule on the legality of executive or legislative actions, it has a degree of independence for the judicial branch (Abraham, 1986). Judicial review ensures that the judiciary has a legal right to rule on the constitutional relevance of laws but it does not immunize against influence that could come from other branches. Judicial review, in theory, provides a level of independence that allows the judicial branch to regulate the relationship between the state and its citizens. The judicial branch, after all, is the institution normally charged with the enforcement of the constitution, rights, and other democratic procedures in constitutional democracies. Ideally, through the application of judicial or constitutional review, judges cannot only mediate conflicts between political actors but also prevent the arbitrary exercise of government power (Larkins, 1996, p. 606). Clark (1974) has similarly argued that the protection provided by judicial review is of greater importance in countries that are prone to delegative leaders because it gives the courts greater power to limit the actions of the executive (Clark 1974-1975). The policing role judicial of appointment and removal dates of all Supreme Court judges. Until this information is available this method is not feasible. Furthermore, the high rate of supplemental judges used for short time periods further complicates this analysis. 80 review provides also ensures that it is a positive indicator of judicial independence (Tate & Vallinder, 1995). Evaluating judicial review, however, is complicated by different forms of practice in different countries. As Mauro Cappelletti (1971) has found, there are two different methods of implementing judicial review: the “diffuse method” of review common in North America and the “concentrated method” characteristic of European countries (Cappelletti, 1971). Latin American countries do not fit neatly into either category. In Venezuela, judicial review is exercised by all judges, not just by Supreme Court justices. This means that the constitutionality of a law can be challenged by anyone, provided they can establish standing. To show standing one must prove that they have been negatively affected by the law (Brewer-Carías, 2002). The ultimate jurisdiction over all constitutional issues, in Venezuela, lies within the constitutional chamber of the Supreme Court. Theoretically, this suggests a strong sense of independence. In previous studies, judicial review alone has been considered the determinant of judicial independence. Take for instance Matthew Stephenson’s (2003) analysis, which considers only judicial review as a proxy for judicial independence. Evaluating independence based on this sole factor is too constricted because it dismisses cases where there is no provision for judicial review, but whose judicial independence is not contested, such as Switzerland. Furthermore, in spite of the presence of judicial review in many countries, and although the judiciary is legally free to act against the executive the judiciary is not always capable of restraining the actions of the executive and it cannot escape encroachment by the executive. There is a tendency for executives to disrespect the separation of powers. In delegative democracy, leaders do not tend to respect existing political institutions (O'Donnell, 1996). This encroachment is perhaps the result of a lack of judicial independence, but it is not a defining 81 characteristic as some studies have perhaps claimed. In these countries constitutional provisions for judicial independence exist, however in actual fact, institutions possess few restraints on the executives’ ability to govern. When political actors are not restrained by the institutional framework, they tend to pursue policies with immediate or short-term payoffs (rewarding supporters) in place of longer-term pay-offs and true institutional reform targeted to overcome problems (Geddes, 1994). As an example of leaders disrespecting the separation of powers, Cameron (2002) argues that leaders such as Chávez and Fujimori have successfully used their executive power to “eliminate checks and balances and create ‘delegative democracies,’ if not disguised autocracies” (Cameron, 2002, p.134). One such example occurred when former Argentinean President Carlos Menem after being accused of violating the separation of powers to expand the Supreme Court, responded to critics by stating “Why should I be the only president in 50 years who hasn't had his own court?” (Larkins, 1998, p. 428). This shows how too often, Latin America democracies lack de facto institutional checks on a leader’s power. To remedy the delegative tendencies of leaders, and facilitate political insularity, O’Donnell has highlighted the need for: state agencies that are legally enabled and empowered, and factually willing and able, to take actions that span from routine oversight to criminal sanctions or impeachment in relation to actions or omissions by other agents or agencies of the state that may be qualified as unlawful ( O'Donnell, 1999, p.38). This reference highlights the need for an effective judicial system. From O’Donnell’s other work, we know that Latin American countries tend to have strong executive branches. Therefore, the main problem is how to restrain the executive. An overbearing concentration of power in the executive branch, especially if the legislature is weak, provides even more reason to consider the 82 role of the judiciary in ensuring democratic stability (Helmke, 2002). Yet, by and large, presidents lack incentives to strengthen political institutions. Evidence suggests Presidents can actually undermine the judiciary and with it, the rule of law (Prillaman, 2000; Ungar, 2002). Contributions from this body of literature have come from scholars who have begun to explore how the judiciary has affected democratic stability in other Latin American countries (Domingo, 2005; Chávez, 2004; Helmke, 2002; Larkins, 1998), but few studies look at Venezuela (exceptions include: Louza, 2007; Kornblith, 2005; and Brewer-Carías, 2002; 2006). Overall, how the executive branch interacts with the judiciary is an understudied phenomenon. In order to illuminate our understanding of this area of the judiciary, this dissertation examines the institutional structures that exist using the collection of elements detailed below as a guideline. Built through an extensive examination of the literature in the field, the components of independence offered in the dissertation ensure that the analysis of Venezuela is theoretically grounded. A discussion of how the judicial system in Venezuela measures up to the elements identified here as being key to judicial independence is explored in Chapter Four. This dissertation uses process-tracing to highlight how the judicial system works. 83 Figure 5: Constellation of Presidential Powers in Relation to the Judiciary in Latin America.79 ______________________________________________________________________________ Political Insularity 1. Is there a provision for judicial review? a. Who holds the review powers? b. What is the extent of review powers? 2. Can the court rule against the executive? Individual Autonomy 3. Are judges appointed through constitutional provision? a. Who nominates justices? b. Who appoints justices? 4. Is there a constitutional provision for the removal of judges? a. Who is responsible for the removal of justices? b. What are the provisions for removal? 5. What tenure provisions are justices given? a. What is the Tenure for Supreme Court? b. How long do they actually serve? c. What are the provisions for promotion and renewal? __________________________________________________________________________________________ 3.5 The Formal – Informal Divide The above mentioned collection of elements, like in the majority of scholarship, looks at how formal political institutions prescribe and account for judicial independence. Evidence suggests, however, that informal institutions are more revealing of actual practice (Helmke & Levitsky, 2004, pp. 2-3; Mejía Acosta, 2006). Likewise, the application of the above elements of judicial independence, in the case of Venezuela, shows that there is a large gap between the written law 79 This table was created by the author. Shugart and Mainwaring’s Constellation of presidential powers was used as an inspiration for this typology. Shugart and Mainwaring (1997) compares executive – legislative relationships as a models. For more information on how judicial review relates to judicial independence see (Busey, 1964; Von Lazar, 1972; Verner, 1984) Appointment, impeachment and tenure issues see: (Clagett, 1952; Needler, 1963; Von Lazar, 1972; Verner, 1984) 84 and how the law is practiced. In general, informal or extra-constitutional behavior, negatively impacts democratic stability by creating a parallel set of rules (Hartlyn, 1994; O'Donnell, 1994).80 An exploration of the informal institutions at play is necessary, because it exposes the “…incentives that enable and constrain political behavior” and without such insight, we would not understand the true operation of the judicial system (Helmke & Levitsky, 2004, pp. 2-3).81 There is often a big difference between the formal provisions and the actions of leaders. Rebecca Bill Chávez (2005) demonstrated the importance of considering informal practices when behaviour is inconsistent with constitutional provisions. To trace this behavior and its impact on democracy, Chávez (2005) employs process tracing and looks at Argentina during four different time frames. Employing the method of process tracing, this dissertation shows that a lack of political insularity contributed to a lack of judicial autonomy in Venezuela. That is to say, methods to ensure political insularity are provided for in the constitution, yet, they are systematically undermined. This finding reflects Raymond Duncan’s argument that overwhelming evidence suggests “the independence and strength of the judicial branch is more fictive than true” (Duncan, 1976, pp.152-53). This dissertation will build on the previous claim that judicial independence contributes to democratic stability by demonstrating how the stability of democratic institutions in Venezuela was both damaged and impeded by the executive’s domination of the judicial system. If a legal structure exists, but is not robust enough to stand up to political pressure, it does not go very far in preserving democratic stability. In theory, “judicial 80 This does not dismiss the possibility that informal institutions have the capacity of contributing to democracy. For an examination of how pacts can contribute to stability between clans (though not necessarily to democratization, See (Collins, 2006) 81 A few attempts have been made to quantify informal or de facto judicial independence. One such example is Feld & Voight (2002) who conducted expert surveys in 66 countries. 85 independence insulates judges so that they can decide cases on the basis of the law and apply the law equally to all, especially those in power” (Cameron, 2002, p. 133). In reality, judicial independence is violated in a number of different ways. To study the impact of the judiciary on democratic stability we must look at how it actually functions and identify the causal mechanisms that prevent it from operating as legally intended. 3.6 Conclusion This chapter laid out how the rule of law has been analyzed in previous studies and it established why this dissertation prioritizes judicial independence as the most important determinant of the rule of law. Components used by other studies to evaluate the rule of law are far less meaningful if the judiciary is not independent. Yet there is little agreement on how to analyze judicial independence. To most accurately evaluate judicial independence, this chapter has overviewed both qualitative and quantitative measures. From these it has established the elements of judicial independence that capture the formal measures generally attributed with upholding independence. Evidence suggests, however, that there is a large gap between the letter and practice of the law. To understand the true impact of the judiciary on democratic stability we need to be familiar not only with the formal institutions and role of the judiciary, but also with its actual role and with how the two diverge. Since informal institutions and practices are not codified, to understand how they function requires an in-depth examination. The best means of doing so is through a monographic treatment of a single country. The chapters that follow overview both formal and actual practices and demonstrate that informal institutions are a more accurate depiction of how the judiciary functions. After establishing the formal components of the Venezuelan judicial system, this dissertation will use process tracing to study executive-judicial 86 interactions in order to identify causal mechanisms at play. In accordance with current trends in the literature, this dissertation will focus on the Supreme Court as the highest court in the nation. 87 CHAPTER FOUR 4.1 Institutional Sources of Instability in Venezuelan Democracy To support the argument that judicial independence is important for the stability of democratic institutions in presidential systems, this chapter suggests that previous explanations of instability—in Venezuela—including the pacted democracy, economic downturn, and the presidential system may be improved through an understanding of how the judiciary functioned. The hypothesis that a positive relationship between judicial independence and stability exists would lead us to expect an independent judiciary in earlier years. This conclusion is reached because most of the literature classified the Punto Fijo period (1958 - 1988) in Venezuela as a democratically stable. The Punto Fijo period had a stable democratic regime, but a more in-depth overview demonstrates that parties supplanted state institutions. Process tracing reveals that executive encroachment on the judiciary, enabled through a lack of judicial independence, was commonplace. This dissertation contributes to the existing literature that seeks to explain how the pact broke down. And it also reveals that once the pact broke down, the true impact of a lack of judicial independence was exposed. Explanations for the pact’s failure based on its exclusionary nature, presidentialism and economic downturn are convincing. This dissertation does not seek to refute these assessments of why the pact failed; instead it adds nuances that deepen our understanding of the Venezuelan political system. After demonstrating that there is value in studying the role of the judiciary, this dissertation argues that under the democratic pact a politics of exclusion and politicization of the judiciary forced those who did not have power to operate outside of the political system. It then argues that that this relationship is present in the Bolivarian period (1999 - 2007). This 88 dissertation hypothesizes that it was a lack of judicial independence that enabled politicization and exclusion. As a presidential system, there were few institutional mechanisms to hold leaders accountable, and once elected Chávez was able to systematically reconfigure the existing democratic institutions.82 To date, his revolutionary project has not been institutionalized and a tendency of the executive to threaten or attack other institutions undermines institutional stability. The pact gave the façade of a stable democracy. The regime was stable, but the state institutions necessary to uphold democracy were absent. I provide an overview of the executive’s ability to threaten and attack the judiciary and this chapter shows how influence over the executive inoculated the parties from accountability and, as a result, an exclusionary system emerged. For the purpose of this dissertation Venezuela’s democratic history is divided into three distinct phases. The first, 1958—1988 was characterized by the Punto Fijo era, the second, 1989—1998 was a period of transition between Punto Fijo style ‘representative’ democracy and the start of the Bolivarian revolution. This decade of transition was characterized by high levels of politically motivated violence leading to President Pérez’s impeachment (For analysis on the political nature of this period see: McCoy & Myers, 2004; Perdomo, 2004; Ellner & Hellinger, 2003; Combellas, 2003; Buxton, 2001; Karl, 1997; and Coppedge, 1994). The inability of the existing political structure to mitigate high levels of violence and inequality helped pave the way for Chávez’s rise to power. The third period 1999—2007, is referred to as the Bolivarian revolution (see: Buxton, 2001; Buxton 2005; Hellinger, 2003, McCoy 2004, McCoy, 2004). 82 In parliamentary systems the head of government requires the support of the legislature to remain in power—this check on the leaders power does not exit in presidential systems. 89 Following his election in 1998, Chávez’s attempts to reform the old political institutions, based on his popular appeal, have provoked criticism that he is acting undemocratically. Yet a similar pattern of executive encroachment has persisted across time periods and threatens to undermine institutional stability because the overarching relationship between the executive and other political institutions, I argue, has changed little. This Chapter briefly overviews the key previous explanations of instability in Venezuela and argues that instability can be more thoroughly understood when we consider the role that judicial independence has played. This chapter also addresses how presidentialism contributed to institutional instability. Specifically, if aspects of presidentialism contributed to problems, why had the system not broken down sooner? As Coppedge (1994) asserts, presidentialism did not cause problems sooner because problems were successfully masked. The institutional literature shows that Venezuela’s form of presidentialism contributed to the exclusive nature of the party system (Levine & Crisp, 1994; McCoy & Myers, 2004; Coppedge, 1994).83 When oil prices fell in the 1980s, the political parties lost grip of their stronghold on power. In the absence of strong parties it became evident that other institutions necessary for the maintenance of democracy were not present. The stability of the democratic regime was called into question at the end of the 1980’s when the high level of political instability challenged the democratic regime. The unstable nature of the presidential system became evident in the transition years between 1988 and 1998. 83 It is worth noting that the plethora of research on parties provoked Levine and Crisp (1994) to consider political parties as an independent category, while McCoy and Myers (2004) classify parties as an aspect of broader political institutions (see also: Coppedge, 1994; and Levine, 1973). 90 Scholars identified three important causes for the fall of the pacted democracy and problems of democratic governance; The Punto Fijo pact itself (Levine, 1978; Karl, 1987; Bejarano, 2005), the economy (Karl, 1997), and presidentialism (Karl, 1997; Coppedge, 1994). Although the pacted democracy ended, economically, the country remains highly dependent on oil, and a similar form of executive-judicial relations persisted. The presidential system and the executive’s tendency to encroach on other institutions remain. This highlights the necessity of exploring the role that presidentialism and low rule of law have played. Through an overview of the main scholarship on instability in Venezuela, this chapter suggests that a focus on the persistent non-independence of the judicial helps explain why the executive remains largely unaccountable. To explain how the executive could avoid accountability, one government supporter suggested that “very little has changed politically. The opposition is just mad that it is us in power now, not them” (Interview, 458; similar sentiment expressed in Interview 457). The following chapter builds on this overview to explain how a similar, and democratically harmful, executive domination of the political system has continued even while so many other contributing factors that caused political problems in the past have remained. For a better overall understanding of institutional instability in Venezuela, we must consider the role of the judiciary. More specifically, Jennifer McCoy (2004) states that institutions had a very important impact in determining “how the distribution and representation crisis unfolded in the Punto Fijo era and how since 1999 they have prevented normalization of the Bolivarian polity” (McCoy, 2004, p. 292). She notes that there have been a number of political and economic changes, although overall: The Fifth Republic has not changed these basic traits of power-1958 Venezuelan politics: structurally, dependence on oil continues;…Institutionally, it [the post-1958 system] 91 maintains a highly centralized decision-making structure, even though a new set of privileged actors have emerged. It is now the traditional elites who are excluded, much like in the Trienio of 1945-1948. The Bolivarian regime continues to rely on the distribution of oil rents and has failed to restore the regulative and administrative capacities of the state. (McCoy, 2004, p.294) Instead of being corrected, institutional problems from earlier eras continue to negatively impact Venezuela’s democracy. Buxton (2005, p.329) argues that “under Chávez, there has been continuity with the ‘politics of exclusion’ that characterised the Punto Fijo period (1958–1998).” This exclusion, led those left out to operate outside of the system: “Excluded from the benefits and political privileges implicit in Punto Fijo, the left consequently assumed the role of an antisystem actor.” (Buxton, 2005, p. 335). The nature of exclusion has exacerbated polarization: Previously privileged groups have lost access, influence and patronage, a situation that has led to their rejection of the new institutional arrangements. By contrast, those who have gained ascendancy and opportunity under the Chávez government have an overriding interest in defending the administration. This situation has exacerbated the existing problem of institutional incapacity, which the government has bypassed rather than addressed. In failing to adopt practices based on meritocracy and objectivity, the Chávez government may undermine the capacity of its revolutionary programme to be institutionalised over the longer term (Buxton, 2005, p.338).84 The exclusionary nature of the presidential system and a lack of judicial independence have persisted throughout the three periods. The key differences between the periods are important to note; during the Punto Fijo era problems associated with the low rule of law were masked by the political pact; in the transition years the problems associated with a non-independent judiciary became evident; and as demonstrated by to his direct influence over the Supreme Court, persisted under Chávez. 84 Similarly, Garcia-Guadilla (2006, p.149) demonstrated that a fear of the “other” led to exclusion. ‘In the case of the privileged sectors the “other” is excluded even from the category of “civil society,” while for the nonprivileged the other is the “oligarch,” excluded from the “people” and the “sovereigns.” In both cases these social images, reinforced by political polarization in the nation as a whole, served to justify acts of violence, the spatial and social exclusion of the “other,” and the denial of the existence of the other “civil society.” 92 This chapter makes two main contributions. First, the chapter overviews the literature on the democratic nature of pacted democracy and presidentialism, it then argues that existing explanations of instability are incomplete without considering the role of the judiciary. To do so it uses the Punto Fijo and transition eras as stepping off points. An overview of these eras shows one, that there is value in studying the role of the judiciary and two, that the underlying relationship between the executive and the judiciary, which I argue is one of domination, existed to different degrees under all three periods. Second, it demonstrates how the judiciary was made ineffective in previous periods. The chapter shows how the detrimental impact of the judiciary became evident in the transition period and how unsuccessful attempts to reform the judicial system acted as a catalyst provoking the electorate to break from the political party system and elect Chávez. By establishing the importance of exploring executive-judicial relationships, this chapter sets the stage for future chapters to show how a lack of judicial independence harms presidential stability by truncating institutional development. 4.2 Venezuela’s Pacted Democracy: 1958-1988 There is wide agreement among scholars that during this period, Venezuela was able to thwart the regime instability experienced in much of the region through a pact.85 The Punto Fijo pact established the practice of regular elections and ended the Marcos Pérez Jiménez dictatorship. In 1958 the pact certified that the COPEI, AD and Unión Republicana Democrática (URD) would share power commensurate with the electoral results (Levine, 1978). The pact provided regime 85Another account comes from the literature on political culture, which makes the assumption that political learning occurs and in turn, it builds democratic political culture. This literature finds its antecedents in the work done by Gabriel Almond and Sidney Verba (1980) and in the work of Robert Putnam (1995). As an example of political learning in Venezuela, Nancy Bermeo (1992, p. 277) argues that Betancourt’s role in the reconstruction of democracy showed that change could come from learning. In this perspective, lessons from past experience condition future responses as actors “learn” from previous lessons. 93 stability because it ensured the parties were in agreement on the country’s basic political and economic program (Karl, 1987, p. 82).86 The regime stability earned Venezuela the title of “near perfect” democracy prior to 1989 because it had regular elections, an alternation of parties in power, and it upheld respect for civil rights (Ellner, 2003, p. 7).87 When evaluated against measures of institutional instability, democracy does not seem as robust. Although elections continue, the executive’s immunity from persecution hindered the systems capacity to be democratic—an issue that I will address in the next section of this chapter. Comparative political scientists are concerned with how institutional equilibriums establish democracy in different countries. Some scholars have asserted that the best means to establish a consolidated democracy was through the use of pacts. Philippe Schmitter (1994) argued that democratic consolidation depends mostly on the mode of transition and he claimed that “the most favorable context for an eventual consolidation is a ‘pacted transition’” Schmitter explains how this form of transition is beneficial because it is an agreement between elites, who will “. . . respect each other’s interests” (Schmitter, 1994, p. 68). A pact is defined as: An explicit, but not always publicly explicated or justified, agreement among a select set of actors which seeks to define (or, better, to redefine) rules governing the exercise of power on the basis of mutual guarantees for the ‘vital interests’ of those entering into it. (O’Donnell & Schmitter 1986, part IV p. 37) The belief that pacts were good for democracy stems from the historical use of political pacts as a means to end military dictatorships. A pacted democracy may have been preferable to military rule, but the transition does not ensure that democratic institutions will emerge. As was the case in Venezuela, pacts allowed elites to agree on the ‘rules of the game’ and to ensure that the 86 In order to appease the military, the armed forces were guaranteed economic and technical improvements. In addition, officers were guaranteed immunity for actions under the Pérez-Jimenez dictatorship (Karl, 1987, p. 83). 87 Ellner (2003, p.7) qualifies this statement by recognizing that these are the conditions that political scientists have identified as basic to “long-lasting, well-functioning democratic regimes.” 94 democratic institutions that emerged did not threaten their interests, thus providing elites with an incentive to support democracy (Przeworski, 1991, p. 90). Higley and Gunther (1992, p.24) suggested that pacts “constitute the only direct and rapid route to consolidated democracy that is available in today’s world.” Burton, Gunther and Higley (1992, p.34) argue that “private negotiations among elites are an acceptable, even routine feature of democratic governance, as long as the elites involved are held publicly accountable through elections and other processes.” According to this logic, the establishment of a democratic regime, through elections, is equivalent to the establishment of democratic governance. At first many such pacts were heralded for their ability to deliver democracy, despite their inherently undemocratic nature which came from the fact that their creators had no public mandate (Hagopian, 1990; Karl, 1986). Although it is difficult to conclude that even the most well established democracies are void of elite influence, in countries where the process of pacted transition allowed elite groups to establish the rules of the new democracy, the rules were often established to privilege these same elites. Under these newly-established rules, there were often few institutional mechanisms to ensure that elites could be held accountable; when these rules did exist, too often they were not followed. The merit of these pacts came from the fact that they introduced elections and this was valued above the undemocratic nature of their inception. In Venezuela, some scholars have argued that because democracy emerged from a pact, it was doomed from its inception. Karl (1987) argued that executive domination, limited representation, and political exclusion are characteristic of democratization by pact because: “in the long run, pacts may hinder the prospects for the future democratic self-transformation of the society, economy, or polity, thereby producing a sort of ‘frozen’ democracy” (Karl, 1987, p. 95 88).88 The pact, which was a reflection of elite interests’, was not easily changed by the same elites who created it. Elites who were involved in establishing the pact had no public mandate to represent the people, meaning the transition to democracy was done through non-democratic means. Borrowing from Rueschemeyer, Stephens and Stephens (1992, p.64), we know that “if the state is simply a tool of the dominant classes, democracy is either impossible or a mere form.” McSherry (1992, p.471) asserts that pacts can be undesirable because their exclusive nature can create a climate of fear and an overwhelming sense of injustice and hopelessness.89 The extensive involvement of elites in the transition process prompted these scholars to question the long-term impact that pacts would have on democracy. Pacts, therefore, while providing stability, can install unequal democratic state institutions that do not necessarily reflect the will of the people. Pacts can bring an agreement among elites to respect electoral outcomes. This is a step in the direction of democracy, because it increases the time horizon of the democratic regime, but the existence of elections alone does not ensure stable democratic governance. While a pact that helped transition a regime to democracy and then implemented rules equally could increase the longevity of a democratic regime; a pact that does not hold leaders accountable is unlikely to result in the establishment of robust democratic institutions. It is clear, therefore, that a focus only on the establishment of elections is insufficient to ensure that the benefits of democratic governments were delivered to citizens. 88 See also O’Donnell, & Schmitter, 1986; Przeworski, 1991, pp. 79-88; Levine, 1978, pp.82-109). 89 For an analysis of pacts in the Central Asian context see Kathleen Collins (2006). Collins asserts that “Pacts do not make democratization more likely” but between clans pacts can help lessen a democratic blow—arguing that clan pacts can have an important, yet informal, contribution to a durable, “but not necessarily democratic transition” (Collins, 2006, p. 50). 96 Other work has convincingly shown that not all pacts lead to the same outcome.90 In contrast to research which argued that transition by pact was the best means of establishing democracy, Ana Maria Bejarano (2005, p.27) shows that the degree of restrictions imposed by pacts can explain if a country ended up reaching consolidated democracy or not. Through an in- depth case comparison, Bejarano recognized that democracy in Colombia and Venezuela was weak, ill-equipped, and possessed “critical problems such as that of imposing collectively binding rules on the society (namely, the rule of law) or overcoming social and economic distress” (2005, p. 36). Her recognition of the importance of how societies implement pacts is an indication that the rules that mediate conflict have a large impact on the eventual consolidation of democracy. In addition to providing greater insight into the debate on the outcome of pacts, Bejarano recognizes the underlying importance of the rule of law. She demonstrated that the content and nature of the pact, and how pacts enforced societal-institutional relations affected the future endurance of democracy. A pacted transition does not guarantee a consolidated democracy even in the presence of elections. The extent to which a pacted democracy can be considered democratic or not, rests on the features of democracy we see as most important. In the words of Terry Lynn Karl (1986): A pacted democracy is a form of limiting this uncertainty that has both advantages and disadvantages for democratization. If [regime] stability is the primary measure, pacts among elites can be highly successful…the cost of the stability of pact making has been the abandonment of greater democratization (pp. 217-218). Despite the recognition that pacts were problematic, the direct effect they had on removing the military from political power was an accomplishment; pacts demonstrated a commitment to a 90 For an analysis of how similar transitions can lead to different outcomes see Bejarano (2000). By comparing Colombia and Venezuela, Bejarano demonstrates how “mode of transition” is not the only indicator of democratic outcome, and focuses on institutional legacy. 97 future with a more democratic regime. The focus on elections, however, led scholars to overlook other important elements necessary to ensure democratic governance, in particular the judiciary. Pacts can deliver the electoral components of democracy and may even lay the groundwork for the development of other democratic institutions, but without state institutions in place to check governing institutions, their future is uncertain. 4.3 The Functioning of the Judicial System 1958 to 1988 Although the judiciary was not fully independent in any of the periods studied here, it is important to note that it was differently non-independent. During this period the politicization of the judiciary was the result of a lack of individual autonomy and political insularity of the judges. As outlined in chapter three, individual autonomy involves the influence that one judge has over another, while political insularity refers to the relationship between judges and other state institutions (Fiss, 1993). Literature on judicial independence states that tenure procedures including appointment and removal of judges is the most important determinant of judicial independence (Fiss, 1993; Helmke, 2002; Smithey & Ishiyama, 2000; Madhuku, 2002; Russell, 1987; Wilson et. al. 2004). In Venezuela, during the Punto Fijo era tenure procedures, including the appointment of judges, were completely controlled by the party. Although the electoral regime endured, the politicization of the judiciary enabled parties to maintain their privileged positions and other segments of society were excluded from the formal political process. The extent of politicization within the judiciary led Former Supreme Court President Omar Alfredo Mora Díaz to state that from 1830 until 1998, the judicial system had been an appendage of the executive (Mora Díaz, 2006: pp. 9-10). He specifically attributed problems to the fact that judges were not admitted to the judiciary based on their legal credentials, but instead on their support for party politics (Mora Díaz, 2006: 10). Although formal rules to select judges 98 through the Consejo de la Judicatura had been in place since 1972, the formal selection criterion was ignored and the two main parties shared the distribution of positions in the judicial administration and in the courts (Carlos Ayala Corao: quoted in Buxton, 2001, p.32; Ojeda 1995, p. 82). The procedure resembled more of a ‘a dedo’ method, meaning judges were hand picked rather than subject to evaluation based on set criteria. What mattered most were personal connections (Interview, 419).91 It became regular practice for the two major parties to negotiate who would be appointed to the Supreme Court and to balance magistrates between them (PROVEA, 1996, p. 26). The appointment practice led to the declaration that in 1983, 99 percent of judges had a publically declared political party affiliation (Rangel, 1985, p. 218). During the Punto Fijo era the judiciary was heavily influenced by the executive. Partisan political appointments led to a judicial system that was dominated by “judicial tribes” (Interview, 471). Tribes were comprised of individuals who would work together to ensure that other like-minded individuals were hired or promoted and to secure favorable judicial decisions. These tribal networks extended beyond magistrates, and encompassed judges at all levels and other members of the judicial system, including attorney generals, employees in judicial administration, police, and other public sector employees (Fernandez, 1985, p. 33; Ojeda, 1995, p. 113).92 These tribes were well-known and regularly referred to in conversations and in the media.93 91 In 1992 political actors were forced to appoint magistrates in a more open and professional manner somewhat improving the image of the Supreme Court (Perdomo, 2006, p. 5). 92 In this period, one of the most well-known tribes was David Morales Bello’s from Acción Democrática. This tribe was counter balanced by a group associated with COPEI which fell apart in August 1994 when there were cases decided against it. Another tribe was reportedly led by Dr. Reyes Sanchez and was known for working across parties. This group was especially successful because of its links outside of the judicial system (Ojeda, 1995, pp. 118-121). The tribes were famous for “wining and dining” those they wanted to bribe (Ojeda, 1995, p. 128). More recently, the Magistrate Valazquez Alvaray attributed his fall from power to the tribe known as Bande de los Enanos (Perdomo, 2006, p. 12). Alvaray was dismissed on accusations of corruption that at the time of writing had not been 99 By appointing magistrates along party lines, presidents successfully installed courts that would rule in their favor. This had a negative impact on democracy because it made the judiciary subservient to the executive and legislature (Roraima, 1987, pp. 162-163). Extreme party influence in the judiciary led the courts to be viewed as ineffective because they lacked both professionalism and independence from political parties (Kada 2003b, p. 118). José Vincent Rangel concluded that partisan appointment procedures led judges to ignore equality and justice (Rangel, 1985). Injustice and inequality were so blatant that some judges had predetermined prices for sentences. The judiciary was seen as ineffective because, to interpret the law, magistrates did not consider what the Constitution or legal codes said, but were concerned with the reaction of the government and political parties to their decisions. The decisions of judges were not therefore based on legality. One former judge reported that prior to making a politically relevant decision judges always consulted the Attorney General, party leaders, or the President directly (Interview, 523). The partisan appointment of judges had dire ramifications for justice and the rule of law. These deep-rooted problems led Rangel to state that justice under democracy was even worse than when Venezuela was ruled by dictators (Rangel, 1985, p. 6). With a Supreme Court and legal framework staffed by those loyal to AD and COPEI, impunity, injustice, and corruption were rampant (World Bank, 1992; Ojeda, 1995). Two kinds of justices emerged: one for the rich and those connected to the parties, and one for everyone else. “Justice” itself was also for sale. If one had the resources, one could pay fully investigated. Valazquez Alvaray had been incredibly active politically, both as the engineer of the Ley Organica de Tribunal Supremo de Justicia (LOTSJ), and as a deputy for the MVR. 93 The existence of such tribes is undeniable, though there is disagreement on who exactly is involved in each tribe, and the extent of power they hold. The existence of tribes with such great influence suggests that they act as informal institutions. 100 one’s way out of the judicial proceedings during any phase along the way. It was not uncommon for judges to receive ‘gifts,’ including cash, cars, apartments (Ojeda, 1995, p. 31) or airplanes (Interview, 539). The irregular application of the law was also evident when the same judges gave different sentences in similar cases depending on the actors involved (Rangel, 1985, pp. 9- 20). This practice was so prevalent that judges were rarely punished. Short of being fully independent the parties acted as a balance against one another. Party officials knew that what goes around comes around and this prevented them form using the judiciary as an outright tool of their party. Yet, the political parties dominated the judiciary to such an extent that the judiciary’s ability to act as a check on the power of other institutions was undermined. Both the independence of the Venezuelan judiciary and its impact on democracy are understudied. In part, this can be attributed to a lack of understanding of how the judicial system worked. The largest contributions to this area come from the previously referenced William Ojeda, a journalist turned politician, who documented the politicization in a book entitled ¿Cuánto vale un Juez?, (How much does a Judge cost?) and from reports by La Comisión Presidential para la Reforma del Estado (COPRE) (the Presidential Commission for State Reform) that highlighted how problems with the judiciary affected the quality of democracy. In addition to these in-depth analyses, periodic newspaper articles also brought public attention to the issue.94 If one was caught committing a crime, the first line of defense was to pay the police officer. If this failed, evidence or important documentation could be “lost” for the right price (Interview, 546). Ojeda outlined some of these payments in his book. He noted that as high as 70 94 It should be noted that, at the time of conducing field research Concorsio Justicia was in the process of setting up a watch dog organization to overlook judicial actions. In 2006 it began a study on the state of judicial independence in Venezuela the final report was presented in July 2007 and was in the process of publication. 101 to 80 percent of the irregular payments made within the judicial system went directly to the judges (Ojeda, 1995, p. 31). He was imprisoned for one year following the publication of his book. His judicial proceedings were irregular and he was forbidden from calling witnesses and from appealing to the Supreme Court for 14 months (Buxton, 2001, p. 33).95 A lack of equality and justice inhibited the application of the law. There was recognition at the time that problems in the judiciary affected the political system. The need for change had not gone unnoticed and a serious dedication to change of state institutions materialized with the formation of COPRE in 1984. The aim of COPRE was a broad overall reform of the state and it was tasked with looking at the monopolization of representation and participation by political parties. Evidence that a high level of corruption in the judiciary had an impact on governability can be found in the former Supreme Court President Jose Santiago Nuñez Aristimuno, speaking in his formal capacity as President of the Supreme Court, expressed the opinion that democracy had not reached the judiciary (Brewer-Carías, 1987, p. 2). In response to these problems, the commission recommended judicial reform, electoral reform, the decentralization of government, and the introduction of a more direct form of democracy to better represent the population (Combellas, 2003, p. 2).96 The recommendations made by COPRE highlighted how the judicial system required change in order to overcome corruption and inefficiency (Perdomo, 2004, p. 349). This change became more probable when the National Congress established the Comisión Bicameral (Bicameral Commission) for constitutional change on 6 June 1989. Change within the political system, however, proved to be slow and 95 There were some interviewees who refuted the exact facts presented by Ojeda, alleging that he had got the actors wrong, but the existence of these infractions was not refuted (Interview, 477). 96This group largely adopted the proposals put forth by Roraima, a group convened under the Lucinchi government that called for the depoliticization of state institutions (Buxton, 2001, p. 43). These reforms were not supported by AD; however, when Andrés Pérez won the presidency in 1988, he gave COPRE ministerial status, improving the possibility that change would be realized (Buxton, 2001, p. 44). 102 inconsistent. Apart from a 1989 reform that introduced the direct election of governors, and created the position of mayor, few changes materialized (Combellas, 2003, p. 2).97 Without being constrained by other branches, the executive could govern with few impartial arbiters. Much like in the rest of Latin America, the judicial branch has never enjoyed the degree of independence that it was granted in the Constitution. Yet, since the system augmented their support, parties paid no attention to the problems within the judiciary except to ensure that people in key positions would remain faithful (Perdomo, 2004, p. 337). Actors in the judicial system were reluctant to initiate change, so corruption within the judiciary continued but much of the literature that looks at instability focused on economic and institutional problems. The parties, through their control of the executive, were able to influence appointments in the judiciary, and therefore able to ensure that the judiciary ruled in their favour. When the system fell, the absence of institutional constraints became more evident. 4.3.1 Competing Explanations for the fall of Pacted Democracy: The institutional arrangements set up under the Punto Fijo pact were unable to withstand economic downturn. Scholars have shown that there is a positive relationship between economics and regime stability—the wealthier a country, the more likely it is to have a stable democracy (Przeworski & Limongi, 1997; Lipset, 1959, p.56). At best, the body of literature that explores the role of economics and democratic stability is inconclusive with regard to how wealth sustains democratic governance. Przeworski, Álvarez and Cheibub (1996, p.39) assert that the endurance of democracy is dependent on “…[existing] democracy, affluence, growth with moderate inflation, declining inequality, a favorable international climate, and parliamentary institutions.” When oil prices fell in the late 1970s and early 1980s, political 97 The Comisión presented its final recommendations to Congress on 20 March 1992. 103 parties in Venezuela were no longer able to maintain their privileged position. There was, however, no switch on the regime level from democratic to non-democratic governance, but there was an increase in political instability including protests, coup attempts and a presidential impeachment. Karl argued that the timing of Venezuela’s political instability in the 1980s is best explained by an economic downturn. Political volatility was “…painful testimony to the diminishing capacity of the democratic regime to implement its economic program and to manage conflict without the lubricant of petrodollars” (Karl, 1997, p. 181). Thus, the failure of the pact was due to poor economic performance and a resulting inability of the parties to maintain their patronage ties. Volatility in oil prices contributed to the fall of the Punto Fijo system. Coppedge argues that it was not economic hardship alone that created problems, “the breakdown of democratic regimes is frequently blamed on economic problems, but whether the regime falls depends as much on the strength of the regime as it does on the strength of the blow” (Coppedge, 1994, p. 9). This implies that a stronger institutional structure would be capable of withstanding the economic downturn. He argued that partyarchy made the regime more resilient, but undermined the quality of democracy in the long run. Other than stating that “the quality of democracy affects the stability of a democratic regime” (Coppedge, 1994, 8), he does not identify the qualities that contribute to a quality democracy. In relation to survivability, Coppedge argued that “For a democracy to survive, it must be democratic enough to respond to its people and adapt quickly to a changing world” (Coppedge, 1994, 9). The rigidity of the Venezuelan system made change difficult. 104 Scholarly research has argued that Venezuela’s presidential system makes change difficult. The “explicitly presidentialist” nature of the Venezuelan system “exaggerated the concentration of power in the executive” (Karl, 1997, p. 93). Paradoxically, although presidential partyarchy increased regime stability under the Punto Fijo pact while at the same time it decreased the long term quality of Venezuela’s democracy by stifling the development of more representative democratic institutions (Coppedge, 1994, p. 4; p. 39). Coppedge argued that Venezuela had not broken down under presidentialism sooner “not because presidentialism causes no problems but rather because Venezuela has enjoyed exceptional advantages over its neighbours that have helped it survive conflicts between the president and the Congress—economic prosperity, frequent majority governments, and exceptional leadership” (Coppedge, 1994, p. 178). These additional factors masked larger institutional problems that lowered the quality of democracy. Although the regime was stable, the presidential system stifled mechanisms for conflict resolution. Specifically, Coppedge noted that under the partyarchy system in Venezuela there were few mechanisms to reduce stalemate (Coppedge, 1994, p. 167). Stalemate, or deadlock, occurs in presidential regimes when the president lacks a majority in one of the houses. In some cases this can be overcome through formal coalitions, or when party discipline permits through ad hoc coalitions. Coppedge argues that Venezuela’s unique party system did not permit this flexibility because legislators held the party line (Coppedge, 1994, p. 157).98 The political party agreement assuaged executive-legislative conflict. There simply were not conflicts over dual claims to legitimacy between the executive and the legislature as have been associated with instability in other countries. Such conflicts have often caused regime, political and institutional 98 It is worth noting that party discipline is so strong that the role call was never taken, and the leader of the party’s opinion was taken as representing the will of the party. 105 instability. Both the legislature’s claims to legitimacy and the judiciary’s inability to combat corruption were overshadowed by partyarchy. Since all power within the state was controlled by the party-dominated executive, the state had no independent capacity to end corruption at the highest level. As a result corruption led to blatant rent-seeking behavior and subsequent corruption undermined the legitimacy of democracy (Karl, 1997, pp. 139-140). Instead of nurturing democracy “…the centralized, presidentialist political model” increasingly reinforced the undemocratic aspects of the Punto Fijo pact (McCoy, 2004, pp. 285-286). Under the centralized model, the revenue from high oil prices went directly to the state; there is little to suggest that the model had changed in the Chávez period from 1998 to 2007.99 This allowed a rent-seeking state to emerge and to maintain a strong hold on power and in doing so the Venezuelan political system became characterized by inefficiency and an underlying level of institutional instability. In resource dependent states that have built their growth on oil wealth, the resource boom “abruptly and automatically expands the jurisdiction of the state and concentrates power in the executive… Fearing instability, governments spend even more and become more dependent on revenues from petroleum to sustain themselves in power” (Karl, 1997, p. 65). In resource rich countries such as Venezuela, the power of the state tends to increase when there is an increase in oil wealth; this centralization of wealth leads to a concentration of power in the state, but the institutional capacity of the state often cannot keep pace, and so institutional evolution is slow (Karl, 1997, p. 59). The fragility of these institutions 99 Chávez made attempts to diversify manufacturing and food production in Venezuela, in an attempt to reduce the country’s dependence on oil wealth. 106 became evident when faced with economic hardship the parties’ hold on power was challenged.100 The resource dilemma emerges in primary commodity producing countries because profits from rents produced from resource extraction that tend to be concentrated in the state can be politically mediated. Karl (1987) outlined the important role that the petroleum sector played in Venezuela’s transition to democracy. Karl argued that “oil exacerbated the already high degree of centralization of authority in the executive [and] aggravated the form of presidentialism that could be found elsewhere in Latin America” (Karl, 1997, p.90). Oil money influenced the political structure. The existence of oil in Venezuela certainly lubricates the economy. Levine (2002, p.249) recognizes that “of greater political interest was the way its revenues were used; presumably put to different purposes by democracies answerable to the people and dictatorships answerable to a narrow clique. Petro states do not tend to be sustainable because “once the money runs out, or even if the rate of increase slows, patronage will dry up and loyalties wither” (Levine, 2002, p. 254). This proved to be the case in Venezuela because when the oil prices dropped elites could not maintain political control. Dependence on oil remained high in the 1998 – 2007 period despite the Chávez administration’s attempts to diversify. This dissertation leaves an extensive discussion of the role of economics on stability to future research. 100 This view is supported by Karl’s (1986) conclusions on the stability of pacts. “Finally, the viability of a democracia pactada is related to the cost of the maintenance of the pacts themselves. Ironically, the state-owned petroleum that provides a fiscal advantage also has powerful disadvantages associated with it. Since the state is the center of accumulation in an oil-producing country, pact-making is based upon agreements that carve up the state through a complicated spoils system which, in the end, has a deeply corrosive influence upon the efficacy and productivity of the state itself. . . Since petroleum has played a fundamental and unique role in the formation and maintenance of this party system, the long-term viability of this form of pacted democracy and its value as a model for other countries may become clear only when the oil money begins to disappear” (Karl, 1986, p. 219) 107 4.4 Decade of Transition: 1989-1998 Given the perception that Venezuela’s democratic regime was stable, observers were shocked when politically motivated violence broke out in the late 1980s shattering the image that Venezuela was a perfect democracy. In the words of Brian Crisp and Daniel Levine, “after decades of political stability and social peace, beginning in 1989 Venezuela’s democratic order was shaken by widespread unrest and citizen disaffection” (Crisp & Levine, 1998, p. 27).101 This period had a high level of political instability in the form of protests and violence. Returning to Helmke‘s (2008) classification of institutional instability, this period also experienced a number of rebellions, impeachment, and general threats by one branch of government to another; in response to the inability of the exiting political institutions to mitigate societal problems, the population turned to extraconsitutional means.102 This violence, which characterized the second transition phase of Venezuela’s democratic history, began with riots in 1989 known as the Caracazo. The government responded to this unrest by unleashing the army on crowds of unarmed civilians (Coker, 1999).103 The heavy military and police repression sparked outrage. During this uprising over 500 people were killed in street rioting (Buxton, 2001, p. 34). This number of deaths made the Caracazo the most violently suppressed protests in Venezuela’s history (Buxton, 2001, p. 34). Another notable example of social unrest occurred a year prior to Caracazo. This event known as El Amparo, occurred when eight fishermen were executed by the army. This event did not reach the level of 101 Levine and Crisp (1994) view the democratic order as being shaken by these events. One could also see these as a manifestation of frustration and instability, and not a cause of this instability. 102 For a complete overview of Helmke’s indicators of institutional instability see Chapter two of this dissertation. There is some overlap between notions of political instability and institutional instability –this is evident in Helmke’s inclusion of rebellions as a sign of institutional instability when it is also considered a sign of political instability. It can be classified as a threat to institutional stability because it shows that institutions are incapable of contending with societal unrest. 103 For a comprehensive analysis of the Caracazo see: (Lopez-Maya, 2003). 108 violence of the Caracazo, but it is cited as an example of governability problems and as an indication that the government would resort to sheer violence as a means of solving societal problems, and of the state’s inability or unwillingness to persecute offenders.104 Political instability in this period is most evident in how individuals sought extraconstitutional solutions, including the 1989 riots and the 1992 coup attempts. The population turned to such measures “out of frustration with the functioning of democratic institutions and the blockage of formal channels of representation” (Coppedge, 1994, p. 4). This dissertation argues that, instead of causing a disruption in an otherwise democratic system, the politically motivated violence was the result of a flawed democratic system. The parties’ domination of the political system stifled the development of other political institutions, and the parties dominated the executive with few checks, outside of each other, on their power. As political parties became progressively less representative, politics was increasingly dominated by a political and economic minority (Coppedge, 1994; Corrales, 2001; Martz, & Myers, 1994). Eventually, the system self-destructed and elites could not maintain their political clout. This period of Venezuela’s democratic history did not see an end to elections, yet cracks in the democratic edifice became more apparent, and when the power of the political parties fell—a lack of institutional capacity was evident. 4.5 The Judiciary in the Transition Years 1989-1998 The seemingly sudden eruption of political instability grew to threaten regime stability through two coup attempts. An examination of Pérez’s impeachment shows that the political parties 104 These events were the catalyst for mobilization of non-government organizations (NGOs) such as COFAVIC and PROVEA which were created to increase awareness of violence and human rights problems. Both groups remained active at the time of research for this dissertation. 109 influence on the judiciary had a direct impact on Venezuela’s politics. Although elections continued in this period, the lack of impartial justice became evident. This section argues first that a lack of impartial justice contributed to the fall of pacted democracy; and second, that failed pressure to rectify problems in the judiciary contributed to extraconstituional pressure to change the political administration in the form of two attempted coups and eventually in the complete rejection of the pacted democracy and the election of a political outsider, Hugo Chávez . When the parties were strong, judges knew how to rule to keep their jobs. There was no question, one former magistrate insisted, “we always did what the party demanded.” When the parties lost power, he recalled great uncertainty; “it was no longer clear how we should rule” (Interview, 523). A lack of impartial justice in the Punto Fijo era led to a high level of violence and directly contributed to the deterioration of partyarchy, or may have even have caused it (Buxton, 2001, p.43). As she notes: the absence of a functioning rule of law was a factor in the burgeoning legitimacy crisis for the Venezuelan state and the ‘democratic’ characteristics of the Punto Fijo regime were openly questioned. …[the executive] increasingly relied on the use of state force for its preservation” (Buxton, 2001, p. 34). The government’s reaction to high levels of popular unrest made it clear that the political system was unable to respond to governability problems. State agencies, for example, were never held accountable for violations of the law (Buxton, 2001, p. 34). Victims have never seen justice for the crimes committed against them. One expression of the population’s dissatisfaction with the state’s role was framed in a letter written by a group of notable citizens and delivered to the President. The letter, called Carta de los Notables, written in 1990, publicly criticized the political system in Venezuela, called attention to the high level of corruption and, in particular, highlighted the ineptitude of the judiciary and called for the resignation of all magistrates in the 110 Supreme Court (Perdomo, 2004, p. 349).105 The letter criticized the government for not implementing sufficient reforms to correct shortcomings in the political system, such as the introduction of the position of prime minister, which would be tasked with parliamentary responsibility. This proposal was a direct reaction to the propensity of the strong presidential system to generate significant corruption. Additionally, this letter raised public attention of corruption and mobilized a push for reform (Pérez Perdomo, 2003, p. 455). Further demonstrating the enshrined politicization of the judicial system, a 1992 World Bank report stated that the “judicial system was in absolute crisis due to politicization and bureaucratic incompetence” (World Bank, 1992, p.13). This view was echoed in a United Nations survey that claimed that the Venezuelan judiciary was one of the least ‘credible’ in the world (Buxton, 2001, p. 32).106 In sum, instead of interpreting the legal code for its merits, judges’ decisions were based on political calculations, and the judicial system was an extension of the executive and the legislature, which were likewise dominated by political parties (Brewer- Carías, 1975; Combellas 1979; Njaim & Pérez Perdomo, 1994, p. 3). When individuals were unable to hold the executive accountable through legal channels they began to seek extra-institutional resolutions to the problems, often acting outside of the constitutional process. Most notable of these were two coup attempts in 1992. The first, in February, was conducted by the Movimineto Bolivariano Revolucionario 200 (MBR 200), a group of low-ranking military officers led by Hugo Chávez. The direct catalyst for this coup 105 Signators to the letter include: Arturo Luis Berti, Alfredo Boulton, Miguel Angel Burelli Rivas, María Teresa Castillo, Jacinto Convit, Tulio Chiossone, José Román Duque Sánchez, Arnoldo Gabaldón, Ignacio Iribarren, Eloy Lares Martínez, Ernesto Mayz Vallenilla, Domingo F. Maza Zavala, José Melich Orsini, Hernán Méndez Castellanos, Pastor Oropeza, Pedro A. Palma, Rafael Pizani, Carlos Guillermo Rangel, José Vicente Rangel, Alfonzo Ravard, Elías Rodríguez Azpúrua, Isbelia Sequera Segnini, José Santos Urriola, Arturo Úslar Pietri, and Martín Vegas (Carta de los Notables, 1990). 106Again, this was reflected in a 1995 survey “which found that 78 per cent of respondents were of the opinion that the Supreme Court, the highest expression of judicial authority in the country, was inefficient and untrustworthy.” (Consultores 21, Insight 21” VenEconomy 1999, quoted in Buxton, 2001, p. 32). 111 attempt was systematic government corruption (Buxton, 2001, p. 46).107 Although Chávez failed to take political office directly following the coup, it catapulted him on to the public stage. Following his failed 1992 coup, Chávez drew attention to the high level of corruption and the unfair nature of the judicial system and he called for a new constitution (Norden, 2003, p.96)-- this drew a direct link between problems in the judiciary and the existing political system. Chávez was imprisoned for his attempts; upon his release he remained determined to change the political system. The uprising against corruption was aimed both at the problems within the armed forces and at government. Although the coup attempt failed and was also condemned by the international community, it transformed Chávez into a hero and set the stage for his return to power. A second and more violent coup attempt occurred in November 1992; this one was conducted by members of the air force high command (Levitt, 2006). Much of this insecurity was aimed directly at President Carlos Andrés Pérez, not at the regime or at the decline of governability (Lander, 1996, p. 68; Buxton, 2001, p. 47). As is often a problem in presidential systems, dissatisfaction with an unrepresentative political regime forced actors into illegal actions because it was difficult to remove the President. The one legal method to remove the president, impeachment, required evidence that the law had been broken and the politicized nature of the judicial system made the likelihood of such a process succeeding very low. With the presidential impeachment in 1993, there was the illusion that this was the action of an independent judiciary. Carlos Andrés Pérez, an Acción Democrática president, had been elected with a near-majority in Congress. He had tried but failed to develop a congressional majority with other parties when his own party increasingly turned its back on him (Valenzuela 107 Chávez later used this frustration as momentum to launch his 1998 campaign, with corruption as the main issue. 112 2004b, pp. 9-11). Pérez was impeached for the misuse of public funds. Crisp and Levine found that the impeachment process was accomplished with “meticulous attention to proper constitutional procedure” (Crisp & Levine, 1998, p. 32). While the application of the law may have followed legal protocol, Pérez’s impeachment is viewed in retrospect as a politicized decision by many government officials (Interview, 449; Interview, 471).108 One interviewee stated that “most lawyers believe it was a negotiated political decision and Pérez’s party abandoned him” (Interview, 479). Specifically, she did not see it as an indication of the rule of law but rather of a political process. To support this position she argued that the transfer of public funds from one department to another—the crime for which Pérez was accused—was illegal but such was common practice. Moreover, while Naoko Kada (2003) asserted how remarkable the removal through the legislature and not the military was; Kada also stated that Pérez’s impeachment was not an indication of the judiciary’s ability to check executive power (Kada, 2003, p.113). Pérez’s confidence that the court would rule in his favour was indicated by his public request, prior to the court’s decision, that the party respect the decision of the court (Kada, 2003, p. 130). The impeachment attempt shed light on the level of corruption among parties. It was a combination of party conflicts and government inability to deal with discontent that created the dangerous climate of corruption that undermined the legitimacy of democratic rule (Karl, 1997, p. 158).109 Hellinger (2003, p. 33) argued along a similar vein and noted how incredible levels of corruption had gone previously unpunished, making this conviction seem more like “a desperate attempt to remove from office the highly unpopular president…” and not an indication of an 108 For example: (The Vengeance of Dinosaurs 1993; Mayobre, 1995). 109 The decline of pactismo left the government with no support. Both members of his party and COPEI members made day to day governing impossible and repeatedly called for his resignation (Karl, 1997, p. 183). 113 independent judicary. Party politics and party infighting had a larger influence over legal proceedings than a strict application of the law. Legal uncertainty surrounded this ruling because, as Lander (1996, p.71) noted, the amount was minor when compared with previous infractions, and similar or more serious crimes went unpunished in the years that followed. With the exception of the fact that the impeachment process itself occurred under considerable threat of violence it did follow legal procedure. In accordance with legal protocol, Pérez was accused of corruption by José Vicente Rangel,110 and the request for his impeachment came from the Attorney General, Ramón Escobar Salom. The Attorney General had, however, been selected by Congress and was not perceived to be independent of party interests (Kada, 2003, p. 119; p. 468).111 Furthermore, in March 1993, the Chief Justice of the Supreme Court, Gonzalo Rodriguez (a known COPEI affiliate), assigned himself to hear the case. Although democratically permitted, skeptics questioned his motivation and accused him of doing so for political ends. As evidence that the president’s removal was not an indication of and independent judiciary, between 5 May and 20 May while the case was being decided, Movimiento al Socialismo (MAS) threatened to use violence against the Supreme Court Justices if they voted against sending the President’s case to trial. 112 Moreover, as an indication of MAS’ non- democratic intentions, in place of Pérez, it proposed a joint military-civilian government led by 110 There are several different versions of why Pérez was impeached. Kada reports that Rangel’s accusation of corruption was based on the fact that just prior to passing exchange rate reforms, Pérez took 250 million Bolivares and exchanged it to dollars. Following the devaluation, he re-converted the dollars into Bolivares and only returned the 250 million, and pocketing the rest (Kada, 2003, p. 125) 111In strict legal terms: “In 1993, impeachment investigations were handled by the Supreme Court upon request by any citizen (though most requests are not followed up). “If the Court did recommend a trial, the Senate decided, by the majority vote of its members (i.e., absolute majority), to impeach the president and the president was suspended” (Kada, 2003, p. 116). The independence of the Supreme Court was questionable, in Kada’s own words: “Under the 1961 constitution, Supreme Court justices were selected by Congress in joint session for nine-year terms (with the possibility of reappointment). This selection rule resulted in a Supreme Court whose overwhelming majority was strongly aligned with one of the two major political parties” (Kada, 2003, p. 118) 112 This was a credible claim since Supreme Court Justices had been receiving letter bombs at the time (Kada, 2003, p. 131). 114 Hugo Chávez. The process was heavily influenced through “an abuse of power by a segment of the military and supported by some prominent political leaders…” (Kada, 2003, p. 133). This meddling invited complaints that the trial had not been conducted in a legally convincing manner (Martin, 1996, pp. 206-20; Rey, 1993, p. 9; p. 112). When the case of impeachment was presented to the Supreme Court, nine justices voted in favor of a trial while the other six abstained from voting. Following this decision, the Senate voted unanimously in favour of hearing the case (Kada, 2003, pp. 125-126). Pérez was initially accused of embezzlement, but he ultimately was impeached for the misappropriation of state funds, having donated 40 million dollars to support the electoral campaign of Violetta Chamorro in Nicaragua (Buxton, 2001, p. 48). The judicial system already lacked credibility because it was perceived to be manipulated by politics. What some scholars have seen as the appropriate exercise of legal authority (Karl, 1997; Crisp & Levine, 1994) upon closer examination can be seen as the party system using its political influence and using the legal system for political clout. The way the president was removed confirmed that the judiciary was highly politicized, and also that the parties were not willing to toe the party line indiscriminately. The inability of the Supreme Court to apply a neutral justice brought greater attention to problems of the non- independent judiciary. 4.6 Judicial Reform Attempts in the Transition Years The turmoil caused by political rebellions and the two presidential coup attempts in 1992 heightened the conviction of the reform-minded that change to the judicial system was needed. This unrest was a catalyst for reform and the government began to work with the World Bank on a series of judicial reform projects to address the problems of partial justice. The first, signed in December 1993, was valued at 60 million dollars, and a second project signed in 1997 was 115 valued at 7.3 million. These projects did not bring about rapid change. To begin with, implementation of the project was delayed because the Venezuelan government took two years to endorse the project after it was approved by the World Bank (Interview, 424). When the project was finally initiated, progress was complicated by the fact that none of the people in the Pérez administration, with whom the project idea and arrangements were agreed upon, remained in office (Interview, 424).113 This contributed to problems with implementation, as did the thirteen different directors who oversaw the project in its seven years, each of whom came with his or her own management ideas and conceptions for the future direction of the reforms (Interview, 496).114 The lack of consistency hindered attempts at true reform. A negotiation process between the Pérez cabinet and the Judicial Council had resulted in an agreement that judicial reform would be made through the Council. Putting the council at the helm circumvented the need for legislative approval, removing some of the political obstacles, but it also meant that the changes made were of a purely technical nature (Lawyers Committee 1996, p. 5). These were much needed changes and involved modernizing facilities, including court houses, which were severely under-equipped. The World Bank reform projects introduced the Juris and Tepuy systems for tracking cases and case results. Judges’ previous means to track decisions, their “daily books,” was personalistic and decentralized. This procedure made it difficult to compare rulings in different tribunals, or rulings over time in the same tribunal. Because there was no common standard for tracking information, it was easily lost. As recently 113 These projects faced some difficulties with implementation largely because the Consejo de Judicatura was not prepared to implement the project and it was further complicated by the process of writing a new constitution (Louza, 2007). 114 Members involved in the reform process were not concerned with the politicization of the process because the government had to support each change (Interview, 495). A Center for Strategic and International Studies (CSIS) report states that the efforts and investments in reform have been have been “neutralized” by executive “encroachment” on the judiciary (DeShazo & Vargas, 2006). 116 as the late 1990s, several tribunals did not use computers to track cases. To directly improve the Supreme Court, the Tepuy program was a gateway for decisions to be placed on the internet as soon as they were concluded. This system made the website for the Supreme Court (TSJ) one of the world’s most modern. In this way, the modernization process which intended to make the judiciary more effective, accessible, and credible was a seen as a success (Interview, 424). However, because these projects focused on physical infrastructure, they did not directly address elements of politicization (Interview, 424). Since politicization was the biggest problem facing the judiciary, the reforms did little to tackle the root of the problem. A critical assessment of the reform projects was captured in a joint publication of the Lawyers Committee for Human Rights and the Venezuelan Program for Human Rights Education and Action. The main critique of this report, entitled Half-Way to Reform (1996), was that infrastructure modernization was only contributed to part of the inefficiency and that true change could only come from combating the deep-seated politicization of the judicial system. To make matters worse, individuals involved in the reform said that the changes were ineffective because there was not enough incentive within the judiciary to change the system (Interview, 528). Skepticism comes from the fact that the projects quickly became politicized and manipulated for political ends (Interview, 492). That being said, the reforms had an indirect impact on transparency by making it more difficult to hide inefficiencies and irregularities (Interview, 424). The report suggests that with greater government and civil society participation, judicial reforms could have a more substantive impact. The World Bank is limited by Article IV of its charter to consider only economic issues; therefore, the direct impact that it can have on political affairs of a nation is limited (Lawyers Committee 1996, p. 2). As a result, 117 the reforms were not effective at eliminating the most pressing problems of judicial independence, including extreme politicization. The phrase no hay, or ‘there is none’ was repeatedly stated during interviews in response to questions on the nature of judicial independence. Answers to more probing questions—such as why there was no independence, how independence was most commonly violated and how independence had deteriorated—were not answered in a uniform or straight-forward manner. The overwhelming conclusion was that the judiciary had never been free of political pressure. “Judges used to be more influenced by money, now they are influenced by politics” stated one former judge who qualified this statement by noting that money still had influence (Interview, 478). Other interviewees noted that justice has always been an instrument to serve the government (Interview, 437; Interview, 479). Furthermore, a former judge stated that “everyone is afraid of an independent judiciary” (Interview, 523). Qualifying this comment the interviewee went on to explain that the government prefers to use the judiciary to its favour and not be constrained by an independent judiciary. The executive’s ability to influence judicial decisions was not a new feature of Venezuelan democracy. The mechanism that allowed the executive to operate under few constraints was not presidentialism alone, but the fact that “…the judiciary did not function on the basis of a rule of law” and it in turn contributed to regime delegitimization (Buxton, 2001, pp. 219-220). The interaction between a centralized presidential system and a lack of respect for the rule of law created an environment that was not conducive to democratic stability because the state had no capacity to end corruption at the highest levels and within the Supreme Court. When the power of the parties deteriorated, the judiciary was not in a position to uphold a rule of law– and had never really been. The rule of law had been the rule of parties. Instead of being a 118 damaged democracy, Julia Buxton (2001) asserts that: “The term ‘Venezuelan democracy’ was an oxymoron. What Chávez sought to displace was not democratic government per se, but a highly restricted and illegitimate political system that had prevented new forms of representation from emerging” (Buxton, 2001 p. 2). Buxton pinpoints the shortcomings of democracy during the Punto Fijo years. The break from the previous system that came with Chávez opened the opportunity to overcome democratic shortcomings. 4.7 Chávez as a Consequence of Dissatisfaction with the Previous System: 1999-2007 Chávez’s election in 1998 marked a clear end to partyarchy; he campaigned on a platform to revive democracy by recreating political institutions and by putting an end to corporatism and corruption. It was clear that the Venezuelan population wanted change and the old guard political parties were all but eliminated from the political scene when they abandoned their candidates to support Salas Römer (Roberts, 2003, p.67). The alternative of Hugo Chávez appeared preferable, especially because he attached the label of a ‘different democracy’ to the changes he promised to implement. Few who supported him had any idea what Chávez’s ‘different democracy’ would entail. That it was ‘democratic’ and ‘different’ seemed to be sufficient” (Myers & McCoy, 2003, pp.62-63). Chávez’s election was a clear indication that the population wanted change. We can observe similar forms of exclusion under the Punto Fijo era and in the third period 1998 to 2007 when state power was largely concentrated in the executive. In the beginning, the Punto Fijo pact brought regime stability and political calm because leaders could distribute wealth; this led to an exclusionary regime that asphyxiated representation by excluding segments of the population and in turn damaged democracy. If institutions of the state, such as the judiciary, had the ability to combat corruption, damage to democracy could have been 119 mitigated. The executive’s continued ability to run roughshod over other political institutions calls into question the claim, by some authors, that the political and institutional instability in the 1999 to 2007 period were caused nearly exclusively by Chávez’s style of government.115 The similar patterns suggest that perhaps there were similar causes. Although a counterfactual analysis could argue that, done differently, more representative democratic institutions could have been institutionalized—that is not the purpose of this dissertation. Much like pacted democracy, in the beginning Bolivarian democracy was buttressed by high oil prices. Again, pluralist representation was been damaged by a concentration of power in the executive and, when attempts to influence the political system from within were exhausted, individuals who were discontent with the political system pushed for change outside the political system. The use of state resources from oil to invest in social programs no doubt mitigated societal problems that may otherwise have emerged. Oil wealth was, however, used by the state to uphold the state’s power. The executive is restructuring the state of Venezuela and buttressing its own power, and it is doing so in the absence of institutional checks and balances. An examination of executive judicial relations shows that a lack of institutional autonomy and little political insularity of judges existed during the period of the democratic pact. Prior to turning to an explanation of executive-judicial relations in the remaining chapters and to how the judiciary contributed to institutional instability, this chapter finishes with an overview of Bolivarian Democracy. 115 Although many authors recognize that factors prior to Chavez have contributed to instability there tends to be a great deal of emphasis on his style. This over-simplification of the issue is common in the media. For an academic overview see Levine, 2002, pp. 261-263; Kornblith 2005; and for an analysis of how leaders who by pass representative institutions to rule in the name of the masses can damage democracy see Roberts, 2000. 120 4.8 The Bolivarian Revolution Chávez bolstered support based on his desire to move away from the previous elite- centered system, but the direction that his proposed institutional changes would take was not clear. He successfully convinced the population that there were only two available options: Punto Fijo style rule or a revolution. Alternatives and the potential for dialogue between the extremes were strangled. Since Chávez was not forthcoming about what Bolivarian democracy encompassed, he has successfully channeled attention to its honorable end goal of greater equality, participatory democracy and social justice, and made it difficult to evaluate the revolution’s progress. Supporters of the Bolivarian Revolution often reference the success of the French revolution because they have similar ideals of liberty, equality, social justice and brotherhood. Supporters justify the Bolivarian Revolution on the basis that an increase in citizen participation would lead to greater equality and overcome the enormously unequal system that existed prior to 1998 (Interview, 453; Interview, 487; Interview 645). These supporters reference increased citizen participation and redistribution among the poor and therefore are optimistic in regard to prospects for democracy in Venezuela. Many interviewees cited the will of the people as the most important aspect of any democracy (Interview, 453; Interview, 469; Interview, 487, Interview, 645). They make reference to the ideals of the revolution and how the system is changing and see the political system as moving in a positive direction. A focus on the end goal, however, has camouflaged shortcomings in the process. In this way, the leaders demonized the past and idealized the future. The institutional problems, however, were unchanged. The purpose of the Bolivarian Revolution evolved as time went on. In an announcement on 30 January 2005, during a speech to the World Social Forum, President Hugo Chávez 121 revealed that his revolution aimed to create twenty-first century socialism in Venezuela (Wilpert, 2007).116 Ambiguity surrounded the concept until 25 February when Chávez made direct reference to the teachings of Simón Bolívar. Specifically, Chávez used Bolivar’s decrees on education, land ownership, health, and the use of common property, to conclude that Bolívar was a socialist (Hernandez, 2007). In turn, Chávez declared that the Bolivarian Revolution was socialist. Later, during the Presidential campaign of 2006, Chávez called for a deepening of the revolution. He insisted that his revolution was distinct from Marxism; that this form of socialism was nationalistic and responded directly to the country’s unique socio-economic and political environment (Buxton, 2007, p. 2). Optimism for positive change has largely kept supporters on side, while the vocal opposition dismisses Chávez’s promises as glib rhetoric. Supporters of Chávez discount opposition claims of irregularity and inequality (Interview, 453). Some government supporters feel that the opposition deserves to be discriminated against and see their exclusion as a form of payback for the previous unrepresentative political system (Interview, 513; Interview, 505). This belief has fueled political polarization and prevented dialogue between the opposing sides. The displacement of an institutionalized, unequal, corrupt system has given way to an exclusionary, corrupt, and unequal system. 4.9 Conclusion This chapter highlights the role that executive-judicial relations have played to complement existing theories of instability. Scholars contributing to the literature on instability in Venezuela seek to explain the fall of the Punto Fijo pact through structural and institutional factors and look 116 Raby (2006, p. 177) reports that on 5 December 2004, Chávez announced the need to “reclaim the concept of socialism” an announcement he made public in January of the following year. 122 to justify the collapse of a seemingly stable system. In so doing, this literature points to important institutional reasons for democratic instability. Research to date, however, cannot account for why similar forms of executive influence over other institutions continued in the period from 1999 to 2007 when the party system no longer existed and economic conditions were for the most part prosperous.117 In response to this shortcoming, this chapter demonstrated that claims to the stability of Venezuela’s democracy were overstated because they were based only on the presence of elections. The democratic regime was stable, but the necessary institutions were not in place to ensure their continuation. Many scholars writing on Venezuela classify it as democratic in the 1958 to 1989 period (Levine, 1978; Ellner, 2003, p.7). This was because the leaders were elected through democratic elections despite their power sharing arrangement. Scholars seem generally less wedded to this conviction in the 1989 to 1998 and 1999 to 2007 periods when the causes of instability are questioned (McCoy & Myers, 2004; Perdomo, 2004; Ellner & Hellinger, 2003; Combellas, 2003; Buxton, 2001; Karl, 1997; Coppedge, 1994; Njaim & Pérez Perdomo). Closer examination shows that under the Punto Fijo pact Venezuelan democracy did not extend much beyond elections. A high level of corruption, inequality and a lack of representation persisted—those outside of power were cut off from the political system. Problems associated with a concentration of power and limited representation that led to the demise of party rule have reemerged under the Chávez administration because they stemmed, at least in part, from the executive’s ability to dominate the judiciary. The following chapters turn to an examination of the Venezuelan judicial system to show how its dysfunction contributed to institutional instability. 117 Although it is beyond the scope of this dissertation to include an in-depth analysis of economic conditions, 123 CHAPTER FIVE 5.1 Using a Popular Mandate to Reinvent Political Institutions This chapter returns to the argument on the perils of presidentialism and argues that after his 1998 election Chávez used an already compromised judiciary to overcome the constraints of a congressional minority that would not grant him the authority to call a constituent assembly. Chávez’s ability to overcome the constraints of a minority government did not compromise his leadership. Despite his lack of congressional support, the population’s continued willingness to back Chávez was demonstrated through his successive electoral wins which included two referenda. One referendum sought permission to hold a constitutional assembly and one approved the new constitution once the assembly had completed writing it. Much of the population celebrated Chávez’s positive electoral track record as a true victory for democracy and his supports demonstrated their approval by reelecting him in the 2000 presidential elections held under the newly created 1999 constitution. The use of a judicial decision to surmount congressional opposition led his critics to call him autocratic. Both extremes have merit: ever-larger majorities at the polls since Chávez was first elected in 1998 suggest broad support for his democratic reforms, while continued violations of the separation of powers, essential to check executive authority, and fundamental to some definitions of democracy, led some to conclude that Chávez has become increasingly autocratic. Although Venezuela has never enjoyed a truly independent judiciary, the power sharing agreement between the political parties acted to attenuate the influence of the parties because there was always judicial representation and influence from the other party. The judiciary could not be considered independent because judges were appointed based on political loyalties and 124 decisions were politically influenced. When political parties lost their grip on control, judges stated that they no longer knew how to rule because the parties had always directed them (Interview, 523). The transitory period offered a weakening of party influence over the judiciary, but the judiciary was not able to break with the practice of politicization to establish itself as independent. This dissertation argues that the perils of presidentialism, minority government, coalitions, deadlock, term limits and fixed terms, in the presence of low rule of law, became a challenge to institutional stability. Chávez was elected in 1998 with a minority government and failed to establish a coalition. Despite attempts to garner support within congress to back constitutional change, sufficient support could not be found. When faced with deadlock on the issue of constitutional change, the executive overrode Congress, used a judicial decision to permit the creation of a constitutional assembly, which was elected to rewrite the Constitution. Opposition supporters saw this method as controversial because it was not a provision so the 1961 Constitution. The new constitution redefined institutions to increase the executive’s power. Congressional deadlock was circumvented with a judicial decision, allowing the executive to push through its agenda of constitutional change. Broken into four sections, this chapter shows how, when confronted with a deadlock in Congress, Chávez relied on a judicial decision to overcome minority government and he took advantage of the lack of autonomy and neutrality of the judiciary, leveraging a non-independent judiciary. In particular, this decision appealed to the power of the people and allowed for the enactment of a referendum which called for the creation of a constitutional assembly. The second part examines how this assembly, assigned with the role of rewriting the Constitution, was effectively dominated by pro-government forces, and how its supraconstitutional status — the 125 notion that the constitutional assembly could rule in place of other institutions was granted by the judiciary. The third section describes how the new Constitution formally concentrated power in the executive. Finally, the chapter provides a brief overview of the 2000 presidential election. The chapter ends by noting that Chávez, despite some criticism on the democratic nature of his methods, was reelected under the new Constitution. 5.2 Referendum Circumvents Congressional Minority In 1998, Chávez captured the hearts and votes of Venezuelans through an anti-corruption campaign that sought to reclaim the country from a ruling elite increasingly seen to be dishonest, and a political system that had become highly exclusionary. One of the main planks of Chávez’s election platform was his promise to have the constitution rewritten. His supporters believed that the constitution enabled the continuation of an unequal political structure built by the architects of the Punto Fijo pact. This pact, as a negotiated agreement between political parties to share power, largely shut out the political voice of the majority of the population for the 40 years that it was in effect. The call for constitutional reform was not a new concept in Venezuela. Every caudillo leader in the country’s history wanted his own Constitution, making the 1999 Constitution Venezuela’s twenty-seventh.118 Although Venezuela’s 1961 Constitution was perceived to allow a system that was seen as unfair to perpetuate,119 it lasted longer than any other.120 Consequently, 118 Throughout history it was common for Venezuelan leaders to rewrite the previous constitution, enshrining their own rules of the game. 119Angel Alvarez (2003, p. 150-151) explains how the constitution permitted the exclusionary, elite dominated party system to continue. As a result the system “minimized competition among elites, and minimized popular participation even more.” 120 Attempts to change it began as early as 1984 when a presidential commission aimed at broader overall reform of the state La Comisión Presidential para la Reforma del Estado (the Presidential Commission for State Reform; COPRE), examined the monopolization of representation and participation by the political parties. The commission 126 even before he was formally sworn in as president, Chávez was able to convene a group of experts to set up an ad hoc committee to explore avenues of constitutional reform. This group, the Comisión Presidencial Constituyente (Presidential Constitutional Commission), was asked to assess the viability of issuing a decree to hold a referendum that would permit a constitutional assembly and to explore the mechanisms for electing members to this constitutional assembly. Committee member Ricardo Combellas recounts how Chávez participated personally in the meetings, both listening and actively formulating positions (Combellas, 2003, p. 5).121 Although alternative means could have been used to reform the constitution, Chávez stated publicly that he was committed to using a constitutional assembly to have the Constitution rewritten because he was convinced that it was the best way to break from the existing power structure and bring about effective change (Harnecker, 2002). This method of constitutional change was legally questionable because it was not a provision of the 1961 Constitution. Some constitutional lawyers argued that it was necessary first to amend the 1961 constitution to allow for a constitutional assembly prior to holding one (Interview 553; Interview 555; Álvarez, 2007, p.169). Another interviewee stated that this method was used because Chávez knew that it was his best means of increasing his power (Interview, 428). Regardless of motivation, it is clear that when attempts to build a coalition in congress to support constitutional change failed, other avenues were explored. Therefore, Chávez’s commitment to using the Constitutional Assembly as a means of constitutional reform invited accusations that he was willing to go to any means suggested that the constitution could be reformed to change the electoral system, decentralize government, and introduce a more direct form of democracy that would better represent the population (Combellas, 2003, p. 2). 121 Coppedge (2002, p.18) reports that although a panel had been convened to write the text of the referendum and to design “an interim electoral law” Chávez disregarded its suggestion and “dictated the terms of the referendum himself.” 127 necessary to overcome the minority he faced in congress and deliver a new Constitution (Interview, 478). Chávez as leader of the Movimiento Quinto Republica (MVR) (the Fifth Republic Movement)122 was elected on 6 December 1998. He wasted no time and called for constitutional reform during his inaugural address on 2 February 1999, Chávez swore on the “moribund constitution” that would give our people a true Magna Carta. Chávez decreed that the National Electoral Council (CNE) set a date for a referendum to create and give a mandate to a constitutional assembly.123 In response, the CNE set the referendum for 25 April 1999. 124 Chávez had only a minority in Congress; the MVR received 56 percent of the vote but this resulted in only 44 of 208 seats in the House of Deputies and 12 of 57 Senate seats (Buxton, 2001, p.196). A broader coalition, which was known as the Patriotic Front, comprised of the PPT, MVR and MAS was built to win the election and was. This coalition ruled with a total of 70 deputies and 19 senators; consequently the Chávez government did not reach the two-thirds majority needed in congress to invoke constitutional change. The first attempt to bring constitutional change failed when Chávez and his party were unable to build a congressional coalition to support it. Luis Miquilena, Chávez’s mentor and a member of Congress, spearheaded the drive to muster congressional support for the 122 The MVR was created in 1997 while Chávez was in jail to challenge the political establishment in the 1998 presidential elections. Despite low popularity in the polls prior to the election Chávez won by a wide margin. 123 This decree was known as Decreto No3. As a part of this decree Chávez presented the following two questions: 1) Do you support the convocation of a constituent assembly with the purpose of transforming the state and to create a new judicial order that permits the effective functioning of a participative social democracy. And, 2) Do you authorize the president of the Republic by the means of a fixed act of government, based on the opinion of political sectors, social, and economic, and the bases of the process electoral in which the members of the Constitutional Assembly will be elected? 124No 990217-31, February 1999, published in the March 4, 1999, Gaceta. Convoked a referendum and set the date for April 25, 1999. 128 constitutional assembly, building on the backing of the Patriotic Front coalition.125 Although it gained support from several groups including the MBR-200, the communists, and other left- leaning politicians, the government was unable to build sufficient support through coalitions to overcome the limitations of the minority government (Interview, 340). As can be characteristic of presidential systems, the minority government inhibited the government’s ability to pass its agenda in congress. Instead, the constitutional assembly would have to be introduced in another way. 5.2.1 Surmounting Coalition Crisis: When faced with minority government, presidents can either moderate their agendas to appease an opposition dominated congress, or they can form coalitions to build support for their agendas. This dissertation adopts Mainwaring and Shugart’s (1997, p.403) definition of coalition, which argues that a coalition is the share of seats held by the party of the president (see also Cheibub, 1999, p. 8).126 What constitutes a coalition in presidential systems is contested. One group of scholars argues that legislative coalitions in presidential systems are less common than in parliamentary regimes127 because the survival of the executive is not dependent on support from the legislature as it is in parliamentary regimes, presidential systems generate fewer incentives to form coalitions (Mainwaring, 1990; Stepan & Skach, 1993, p. 20; Mainwaring & Scully, 1995, p. 33; Linz & Stepan, 1996, p. 181). 125 This is the coalition that was made predominantly of the Movimiento al Socialismo (MAS) and Movimiento V República (MVR) prior to the 1998 election, but included Patria para Todos (PPT), Independents for the National Community (IPCN), Partido Comunista de Venezuela (PCV), Grupo Convergencia (GC), Movimiento Electoral del Pueblo (MEP). 126 For types of coalitions in Presidential systems see: Altman (2000) and Garrido (2003). 127 Information on coalitions in parliamentary systems is abundant: (Riker, 1962; Dodd, 1976; Luebbert, 1986; Strøm, 1990; Müller & Strøm, 2000). Few attempts to make a comparison have been done (Geddes, 1994; Amorim Neto, 1998; Foweraker, 1998; Altman, 2001). See also, Sartori, 1997; Lijphart, 1999) and Mainwaring and Shugart (1997: 396, n. 2), who emphasized that there should be more work done in the area of coalition governments’ in presidential systems. 129 This institutional feature can discourage the formation of coalitions because the concentration of power in the president’s hands gives the president little incentive to form coalitions or power-sharing arrangements, or to take part in the give-and-take negotiations with the opposition that may be necessary to arrive at a compromise (Lijphart, 1992, p. 19). Essentially, the winner-take-all nature of presidential systems tends to dissuade cooperation with other parties (Linz, 1990; Valenzuela, 1994, p. 93; Stepan & Skach, 1993, p. 130). Presidents do not need the support of the legislature to stay in power, yet without the legislature’s support presidents are unable to pass their policies, leading to deadlock. An alternative view suggests that when coalitions do form, the dual claim to legitimacy tends to make them unstable (Negretto, 2006). When cooperation is strained, the probability of problematic relations increases. To examine unstable coalitions Negretto explores how executive-legislative conflict can lead to premature termination of presidencies. He concludes that when no cabinet coalition holds a majority, the probability of conflict increases (Negretto, 2006, p. 64). According to other studies, coalition status has no impact on “the survival of democracy in either [presidential or parliamentary] system” (Cheibub, Przeworski and Saiegh, 2004, p. 1). This debate suggests that there is conflict over whether, in fact, coalitions have an impact on the survivability of a government. This debate in the scholarly literature on whether or not coalitions increase the probability of democratic instability is unresolved. Unlike students of U.S. political institutions, however, those who study Latin American political institutions “generally agree that divided government is almost always associated with gridlock, unconstitutional unilateral 130 actions, and inter-branch strife” (Negretto, 2006, p. 65).128 To state it directly, when the executive and the legislature disagree there is no alternative but deadlock (Linz & Stepan, 1996, p. 181; Mainwaring & Scully, 1995, p. 33). The role of the judiciary is critical to understand how conflict and deadlock within executive-legislative conflict can be overcome. In particular, when gridlock or deadlock exists in an environment that respects the rule of law, the outcome is likely to be amicable or at a least predictable and will occur within the context of political institutions. When conflict exists under conditions of low respect for the rule of law, clandestine agreements can be reached or illegal unconstitutional mechanisms can be sought (Mejía Acosta, 2006). While the impact of the judiciary on coalitions is unstudied, Linz (1978) asserts that one way for the executive to avoid a loss of cohesion in regime-supporting coalition parties is by removing “. . . highly conflictive issues from the arena of partisan politics by transforming them into legal or technical questions” (Linz 1978, p. 69). It can be argued that Chávez used such an approach when he successfully removed the question of constitution change from Congress when attempts to work with congressional coalitions failed. Instead, he reframed it as a judicial question. As Figure 8 shows, there were two available options to reach the new Constitution. The first path—negotiate—involved building a coalition to garner support in Congress for a constitutional amendment. When the government failed to build a coalition, path two— surmount—was taken. As can be characteristic of presidential systems, a successful coalition could not be built. Instead, Chávez used the judiciary to leap-frog the constraints of Congress 128 There has however been recent literature on coalitions in presidential systems of Latin America. For example, Altman (2000) asserts that problems of coalition formation are overstated, using the case of Uruguay he argues that coalitions can last. Hartlyn (1988) postulates that Colombia existed under coalition rule from 1958 – 1986; and Mejía Acosta (2006) explores the impact of “ghost” coalitions on Ecuadorian politics. 131 and introduce a constitutional assembly. This is problematic because the judiciary could not claim to be independent of political interests. 5.3 Using the Judiciary to Introduce a Constitutional Assembly In anticipation of Congress blocking his efforts to create a constitutional assembly, Chávez had provided a legal justification for the referendum in his 2 February decree, referring to a Supreme Court decision made the previous month: in December 1998, only 10 days after Chávez won the election, the human rights organization FUNDAHUMANOS brought a case on the constitutionality of creating a constitutional assembly before the Supreme Court (Álvarez 2007, Minority Government Coalition Judicial decision Constitutional Assembly Bolivarian Constitution of 1999 Path one Surmount Path two Negotiate Figure 6: Paths from Minority Government to Constitutional Assembly 132 p. 158).129 The explicit purpose of this ruling was to solicit an interpretation of Chávez’s proposed use of referendum to ask for a constitutional assembly (Quintero, 2002, p. 484). The result of this ruling was the 19 January, 1999 political administrative chamber of the Supreme Court’s ruling known as Fallo 17 which stated that the Constitution did not have to be amended in order to permit the formation of a constitutional assembly, but that a referendum on the questions would be sufficient.130 This decision was based on the justification that, since sovereignty is held by the pueblo131 and a referendum allows for the exercise of the popular voice, a referendum overrules the requirement for congressional supermajority and establishes legality (Urdaneta García, 2000, p. 166; Hernández-Mendible, 2000, p. 84; Mejía, 2002; Interview, 152; Interview, 523). Specifically, the decision stated that the President, the Congress, or 10% of the electorate could initiate a referendum (Romero, 2002, p. 75). Therefore, constitutional change could be implemented without the support of Congress, providing that the government could win a referendum. The importance of this interpretation lies in how the court’s consideration of the pueblo marked a break from the past. One interpretation of this suggests that it could be interpreted as an indication of judges ruling strategically to align themselves with the incoming president. Gretchen Helmke (2002) demonstrated that in the case of Argentina judges voted strategically to protect their jobs. Her research proved that ruling against the government does not indicate independence, as indicated in Chapter Two. Evidence suggests that similar actions were used in 129 It was a generally held belief that Chávez had been maneuvering to use this court decision prior to when he took power. 130 The debate among legal and political professionals to discern the constitutionality of the constituent assembly remains unresolved and there are several legal professionals who continue to claim that the constitution was changed in an unconstitutional way (Interview 445). 131The term Pueblo refers to the Venezuelan population, though is generally used in relation to the poor majority. It is in the name of the pueblo that Chávez regularly states that he seeks to empower. 133 Venezuela. Although the courts were not previously considered fully independent, the decision to allow constitutional change through a constitutional assembly is said to reflect a shift in political power (Interview, 523). During this time, the courts, like politics in general, were dominated by parties: former Supreme Court judges and members of the judicial community stated in interviews that since judges had been appointed by one of the ruling parties it was clear where their loyalties belonged. One former judge stated explicitly that when Chávez won the presidency from outside the traditional party system, judges were unclear about where their loyalties ought to be (Interview, 523). The change marked by the pueblo decision led to accusations that judges’ were motivated by political, not legal, considerations (Interview, 523). In other words, judges ruled with the side they thought would keep them in their jobs—not with strict legal interpretation. 5.3.1 Legal Challenges to the use of a Constitutional Assembly to Reform the Constitution: Although Chávez was proactive and provided a legal justification for a constitutional assembly, this did not deter opponents from challenging the legality of using a referendum to call for a constituent assembly. This put the future of reform in the hands of the Supreme Court. Political parties, opposition groups and individuals asked the Supreme Court to rule on the constitutionality and legality of Congress and the CNE’s decision to implement a referendum without a constitutional amendment on the grounds that the 1961 Constitution had no provision to hold a constitutional assembly (Urdaneta García, 2000, pp. 167-168). Opposition parties such as AD, COPEI as well as other plaintiffs from the old political order challenged the government’s attempts to call for a constitutional assembly through a referendum. Despite these efforts, they lost the majority of their cases (Romero, 2002, p. 76). 134 These legal actions were successful, however, in limiting the executives’ influence. For example, one legal decision in particular both defined the powers of the assembly and limited the power of the President. When the referendum on the constitutional assembly was originally decreed in February, 1999, the question read, “Do you authorize the President of the Republic to establish by executive decree the basis of the electoral process through which members of the constitutional assembly will be elected, after having listened to the opinion of political, economic and social sectors?” (Romero, 2002, p. 79). Had this question been used, the president would have been granted all the power to define and direct the constitutional change, without limitations. The original question was challenged in the Supreme Court on 3 March, 1999, on the premise that it was undemocratic; many legal experts believed it contradicted the very principle upon which the new Constitution was to be based, namely, popular participation. On 18 March, 1999, the court ruled in favour of the case placed before it by lawyer and opposition member Gerardo Blyde Pérez, ordering the CNE to modify the referendum question (Quintero, 2002, p. 34).132 Published by the CNE on 25 March 1999, the new question more clearly defined the powers of the President, asking, “Do you agree with the bases proposed by the President to convene the constitutional assembly, under the regulations that were reviewed and modified partially by the National Electoral Council on 24 March, 1999 and that were published in the Official Gazette on 25 March, 1999?” (Romero, 2002, p.79). Instead of giving the president full control to decide the rules, this power was shared with the National Electoral Council. This court ruling is an example of how the court was able to restrict the power of the executive. 132 This ruling was known as ‘sentence 271.’ 135 The referendum was held and won on 25 April, 1999, and with it, the government won its public mandate to convene a constitutional assembly. The two questions posed in the referendum passed with the support of nearly 90 percent of those who voted. The magnitude of this win is diminished when you consider that only 39 percent of registered voters participated.133 Although voter turnout for such a pivotal election was low, President Chávez was given the legitimacy required to convene the constitutional assembly. Chávez was elected into a minority government and initiated extensive constitutional change; when insufficient representation in congress prevented the reform, extra-congressional means were used. Chávez was accused of using the constitutional assembly as a way of overcoming the minority he had in congress (Interview, 447). The constitutional assembly allowed him to break from the institutions of the previous regime. The new Constitution meant that institutions of the fourth republic would no longer constrain the government (Interview, 523). 5.3.2 Legal Impact of Circumventing Congress: The legal decision circumvented the need for congressional support and silenced critics who insisted that a constitutional amendment was necessary; it also suggested that there could have been a political shift in the courts. Urdaneta García (2003, p.187) suggested that it was the flexibility of the Supreme Court that allowed for change. Coppedge also noted that “without a constituent assembly empowered to neutralize the legislative and judicial branches, Chávez would have remained accountable…without it [the court ruling] the entire process would have been patently unconstitutional” (Coppedge, 2002, p. 31). The legal decision provided him with 133 This calculation is an overstatement of the support for the referendum because it uses only registered voters. The electoral registry, although containing those eligible to vote, was known to be incomplete. 136 the means to justifiably circumvent congress.134 The court at this time was able to restrict the President’s power but, some argued, it was still an indication of the courts’ appeasement, as creating an assembly was prioritized over applying the law, as the ruling deviated from a strict application of the 1961 Constitution. The justification for superseding existing institutions was based on the fact that these institutions were seen as unrepresentative artifacts of the previous democratically questionable regime. Since these institutions garnered little backing outside of their own ranks, there was support to surpass them. From a theoretical perspective Schmitt (1985) suggested that the will of the people is supreme over constitutional institutions. “Against the will of the people especially an institution based on discussion by independent representatives has no autonomous justification for its existence, even less so because the belief in discussion is not democratic but originally liberal” (Schmitt, 1985, p.15). In modern democracy, however, governing institutions are meant to represent the will of the people and are held accountable through institutional structures laid out in the state’s Constitution that establishes the rules of democratic institutions. According to Schmitt, there is an inherent tension between liberalism and democracy. Instead of amalgamating the two concepts as many liberal democrats do, Schmitt believed that liberalism destroys democracy and democracy destroys liberalism (Schmitt 1996, p.69).135 The state restricts individual freedom: “for the purpose of protecting individual freedom and private 134 Legal justification for this decision comes from “The possibility of [the people] delegating sovereignty via the suffrage to popular representatives does not constitute an impediment for its direct exercise in matters for which there exists no express provision in the norm regarding the exercise of sovereignty through representatives. Thus the people preserves its sovereignty [originaria] power for situations such as being consulted about referendum issues….The opinion of the electorate can be sought on any decision of special national transcendence other than those expressly excluded by article 185 of the Organic Law of Suffrage and Political Participation, including a decision relating to the calling of a Constituent Assembly. (Dominquez & Shifter p. 189). 135 Schmitt recognizes that liberal democracy can exist –for a time. He stated that when it achieves power it “must decide between its elements (Schmitt, 1985, p.15). 137 property, liberalism provides a series of methods for hindering and controlling the state’s and government’s power” (Schmitt 1996, p.70). Democracy, according to Schmitt, does not put a limit on the state power, because “in a democracy, where those who command and those who obey are identical. . .” there can not be limits on the power of government (Schmitt, 1985, pp.14- 15). By contrast, he asserts that in a monarchy or aristocracy a contract between state and society is possible and can be used to limit state power (Schmitt, 1985, p.15). Though there is merit in Schmitt’s critique of the relationship between liberalism and democracy, his critique on the broader separation of powers in democratic systems warrants greater investigation than can be achieved by this dissertation. 5.3.3 Elections to Form the Constitutional Assembly: After the permission to convene a constitutional assembly was obtained through the April referendum, elections to determine the members of the constitutional assembly were held on 25 July of the same year. The perceived power of the Constituent Assembly is evident by the fact that many members of Congress resigned from their congressional seats, choosing instead to run for the constitutional assembly, because they were not legally entitled to do both (Norden, 2003, p. 101). To some, this was also a premonition to suggest that the Constitutional Assembly might act in place of Congress because at the time of its creation the relationship that would exist between the constituent assembly and other government institutions was unclear. The constituent assembly later replaced the sitting congress, which had been elected only a few months previously. To choose members of the Constituent Assembly, a new electoral formula was introduced. The assembly involved candidates from both the national and regional levels and had a total of 131 seats. In the national competition, 24 candidates were elected from a field of 93. 138 Regionally, 104 members were elected from 1065 candidates to represent 23 states plus the capital (CNE, 1999); each of these 23 (plus national level) districts had a different number of seats, ranging from two to thirteen (CNE, 1999), the number of seats were proportional to the population (Urdaneta García, 2000, p. 168; Combellas, 2003, p. 6). In addition, three seats were reserved for representatives of indigenous peoples. Although the system was multi-member, each district had more than one member, the result had a majoritarian effect because the candidates with the most votes won, this lead some scholars to classify it as a first-past-the-post system.136 Specifically, this implied that the system had no proportional formula (Newman and McCoy 2001, p.28). Accusations that the change in electoral formula had political motivations were fueled by the fact that it was the first time that this non-proportional electoral system was used in Venezuela. Moreover, critics of Chávez accused him of commissioning research to identify and implement the electoral system that would ensure his supporters would gain the largest number of seats (Interview, 451; see also Corrales and Penfold, 2007, p.101). To critics these accusations were given greater weight when the electoral gains by the MVR are considered. Table 5 shows a breakdown of MVR affiliates that won all 20 of the seats they ran for on the national level. MVR candidates dominated the elections and only lost in Aragua, Nueva Esparta and Portuguesa, as indicated by the bolded numbers in the table. The MRV alliance built by Chávez, known as the Polo Patriótico (PP), ran candidates strategically on a single ticket, reducing in-fighting. The opposition, on the other hand, ran as independents. This 136 Newman and McCoy (2001) state that: “In theory, the electoral system was not a first-past-the-post system because there was more than one seat for the national and regional districts” (Newman & McCoy, 2001 p.27). They continue to state that: “In practice, however, it had the same majoritarian effect over the way votes were counted: In districts with more than one seat, the candidate with the most votes was elected (Newman & McCoy, 2001 p.28). This majoritarian effect is why other scholars have classified the electoral system as first-past-the-post for example see Hellinger, 2003 p. 43 and López Maya, 2003 p.85). 139 created competition amongst the opposition, and split votes (Coppedge, 2002, p. 29). The Polo Patriótico won 62.1 percent of the popular vote. Under the electoral system, this translated into 95 percent (121 of 128) of seats (Ellner, 2001, p.12).137 The opposition, in contrast, won about 35 percent of the vote138 but only seven seats (Crisp & Johnson, 2001, p. 272; Maingón, Pérez & Sonntag, 2001, p. 116).139 Urdaneta asserted that under a proportional electoral system the Polo Patriótico would have won 10 fewer seats on the national level (Urdaneta García, 2000, p. 178). The electoral results suggest that the electoral system provided a clear advantage to MVR candidates, fueling accusations that the electoral system had been chosen based on political motivations. The popular support for Chávez translated into electoral domination because of the electoral system that was chosen. This suggests that the executive may have had influence over other institutions, though this dissertation does not argue that there is evidence to suggest that there was a blatant violation of the power of the electoral branch by the executive. 137 Three additional seats were reserved for representatives of the indigenous populations and these were chosen based on indigenous mechanisms for choosing leaders. 138 The percentage of votes won by the opposition is reported to be between 35-40 depending on the source. 139 It is important to note that since these elections, several key members of the assembly have been critical of government actions, some doing so publicly: including, for example, Hermann Escarrá, Angela Sago, Alfredo Peña, Luis Miquilena, Leopoldo Puchi, and William Ojeda. 140 Table 5: Concentration of MVR Candidates Elected in the Constituent Assembly Election 1999 State Number of MVR running Number of MVR elected Total seats available National 20 20 24 Federal District 8 8 8 Amazonas 2 2 2 Anzoategui 5 5 5 Apure 2 2 2 Aragua 6 5 6 Barinas 2 2 2 Bolivar 5 5 5 Carabobo 9 9 9 Cojedes 2 2 2 Delta Amacuro 2 2 2 Falcon 3 3 3 Guarico 3 3 3 Lara 7 7 7 Merida 3 3 3 Miranda 11 11 11 Monagas 3 3 3 Nueva Esparta 2 1 2 Portuguesa 3 2 3 Sucre 3 3 3 Tachira 4 4 4 Trujillo 2 2 2 Vargas 2 2 2 Yaracuy 2 2 2 Zulia 13 13 13 Total 124 121 128* Source: Authors creation based on numbers from (CNE, 1999). Calculations by author. There were a total of 1163 candidates in the ANC election. *Three additional seats were reserved for indigenous representatives. The MVR’s success in elections was due both to the electoral system chosen and to its candidate selection strategy. Some national and regional candidates were selected directly by Chávez, who actively and personally persuaded them to run (Interview, 540). The strongest candidates, who became known as “Las llaves de Chávez” (the keys of Chávez), were personalities known across the country; 20 of them ran in the national competition and all 20 of them were elected (Romero, 2002, p. 80). As logic would suggest, candidates with local 141 recognition were run locally. The electoral system had strong majoritarian tendencies and so the victory of the largest party was exaggerated (Reynolds & Reilly, 1997, p. 36). The success of this electoral tactic ensured that only three MVR candidates lost140 and, with 95 percent of seats, the MVR was in a position to control not only the process but also the content of constitutional change. Following the elections the group of 131 immediately began writing the Constitution, a task they were given only given 180 days to complete (Coppedge, 2002, p. 30; Combellas, 2003, p. 192). Members of the assembly reported that because so many people represented the same party and ideology, debate on several issues was limited (Blanco, 2002, p. 106; Interview, 532, Interview, 540). Some members also reported that Chávez directly drove the most important issues and the general direction of the reform (Interview, 534; Interview, 532).141 Overall this suggests that the composition of the Constituent assembly affected the dialogue which was stifled by a lack of diversity of opinions. 5.3.4 The Reorganization of the Political Powers: The constitutional assembly may have been created to overcome congressional deadlock, but when it was first elected Congress and the constitutional assembly co-existed.142 The MVR, concerned by a similar situation in Colombia where the Congress had agreed to work with the assembly but then sabotaged it, used the Colombian situation as legal precedence of suspending congressional sessions while the assembly re-wrote the Constitution (Ellner, 2001, p. 13).143 140 These losses occurred in the states of Aragua, Nueva Esparta and Portuguese. 141 This influence does not mean that Chávez was able to achieve all of his desired changes directly. For example, assembly members recount how Chávez hoped to eliminate the National Guard, but he was unable to because of the political power it enjoyed. 142Short of a full autogolpe this was nonetheless a move by the executive to stop congress and the judiciary (Cameron, 1998). 143In 1991, Colombian President Gaviria had encouraged the installation of a constitutional assembly outside Congress (Pérez-Liñán, 2005, p. 64; Interview, 535). This assembly took the role of being the definitive source of constitutionality and established a “plebiscitary model of unconventional constitutional change” (Barros, 2001, quoted in Pérez-Liñán, 2005, p. 64). 142 According to some leading Venezuelan constitutionalists, the Colombian precedent was a thin cover for Chávez’s use of the constitutional assembly to build his own power base. Justification for the ANCs authority to reform other institutions came from its claim to have originating power. Controversy over the extent of the power that the Constitutional assembly held stemmed from the debate over if it had “originating power,” or specifically, over the question of if the ANC had the power to dissolve Congress and the Supreme Court. In other words, “originating powers” called into question the ability of the ANC to act in place of other governing institutions (Combellas, 2003, p. 194; Álvarez, 2007, p.169). This played a large role in dictating the power that the ANC would have because it determined what bodies could limit the actions of the ANC. In an April 1999 decision, the Supreme Court ruled that the Constitutional Assembly did not have originating power, stating that its sole mission was to re-write the constitution. Yet, Chávez publically asserted that it did posses these powers and that they were drawn from the fact that it was elected by the population (Roth, 1999). The ANC President, Luis Miquilena declared that the Constituent Assembly had originating power, asserting that nothing could challenge the sovereign power of the Assembly (Gaceta Constituyente, 1999, p.2). The ANC used its originating power to reorganize all organs of public power, including the judiciary (Viciano Pastor and Martínez Dalmau, 1999, p.145-146). With this power the ANC “reduced the power of elected Congress, and intervened in the courts to remove judges (McCoy, 2006 p. 766). This included the removal of judges and the adoption of legislative powers (McCoy, 2006 p. 766 and 774). Had the ANC not had originating powers its jurisdiction would have been restricted to constitution writing. 143 Relying on a plebiscitarian model the Venezuelan Constitutional Assembly took control of the political institutions on 12 August, only 18 days after it was elected, when it declared a national emergency and announced that it would reorganize public powers (Greste, 1999). This stifled congressional power and gave it to a body dominated by government supporters and elected under a questionable system full authority to reform the constitutions and the political institutions. A direct use of the constitutional assembly to carry out a threat or an attack against another branch, to borrow from Helmke (2008, p.11), occurred when the Congress, which had not held any real power since August, was dissolved in December (Molina & Pérez, 2004, p. 107). The constitutional assembly replaced congress with the Consejo Nacional Legislativo (CNL) (National Legislative Council). Further leaving its personal imprint, the constitutional assembly appointed the members of the CNL. That is to say, members of the CNL were not popularly elected (Molina & Pérez, 2004, p. 107; Calvert, 2004, p. 227).144 From 15 December 1999, when the Constitution was approved by referendum, until 31 January 2000, the constitutional assembly acted as the legislature and used its power to revamp the political system. “It appointed a large number of public officials, rewrote the electoral law, and approved a ‘transitory regime’ that served as a kind of unratified constitution until new elections could be held” (Coppedge, 2002, p. 18). Such noteworthy change demonstrated the enormous power held by 131 members of the Constitutional assembly. 144 This body had been elected by 39 percent of voters and was dominated by one political ideology. 144 5.3.5 The Supreme Court Rules that the Constitutional Assembly is Supraconstitutional: Institutional restructuring was not confined to the legislature and on 18 August, the assembly announced a judicial emergency, which revamped the judiciary.145 Until the emergency committee took control away from the Supreme Court it had been the last institution capable of limiting the assembly’s power (Combellas, 2003, p. 9). The court had previously shown that it could limit the power of the constituent assembly when it ruled that the referendum question had to be narrowed and the power of the president was limited. The constituent assembly, through the judicial emergency committee, essentially eliminated the chance that the judiciary could act against it. Members of the Supreme Court perceived this to be a blatant power grab. On 25 August, after senior judges of the Supreme Court had negotiated with assembly officials, the Court agreed in a six-to-eight decision that the constitutional assembly could place itself above all other bodies, including the Constitution (Molina, 2001; Combellas, 2003; International Commission of Jurists, 2001).146 This contradicted an earlier court ruling that gave the assembly only the authority to write the 145 Coppedge stated that the emergency commission essentially dissolved the judiciary: “it [the ANC] created a Judicial Emergency Commission that began a purge of the entire judiciary, including the Supreme Court and the Judicial Council. After the draft constitution was ratified on December 15, the ANC (which was not dissolved until January 31, 2000) decreed a Public Power Transition Regime that dissolved congress and the Supreme Court, and appointed the Ombudsman (Defensor del Pueblo), Public Prosecutor (Fiscal General de la República), Comptroller (Contralor General de la República), and the board of the National Electoral Council.” (Coppedge, 2002, p. 30). The Judicial emergency was justified based on the high level of corruption and inefficiency in the judiciary. Since few people viewed the judiciary as an independent body there was not much in the way of pubic outcry. 145 The eight magistrates voting in favour included: Iván Rincón, Hildegard Rondón de Sansó, Alirio Abreu Burelli, Humberto J. La Roche, José Luis Bonnemaison, José Erasmo Pérez España, Angel Edecio Cárdenas and Antonio Ramírez Jiménez. Those voting against included: Cecilia Sosa, Aníbal Rueda, Hermes Harting, Héctor Paradisi, Héctor Grisanti Luciani y Nelson Rodríguez.The final member of the court at the time, Jorge Rosell was not present (Renuncia la Presidenta). 146 The eight magistrates voting in favour included: Iván Rincón, Hildegard Rondón de Sansó, Alirio Abreu Burelli, Humberto J. La Roche, José Luis Bonnemaison, José Erasmo Pérez España, Angel Edecio Cárdenas and Antonio Ramírez Jiménez. Those voting against included: Cecilia Sosa, Aníbal Rueda, Hermes Harting, Héctor Paradisi, Héctor Grisanti Luciani y Nelson Rodríguez.The final member of the court at the time, Jorge Rosell was not present (Renuncia la Presidenta, . 145 Constitution, not to act in place of other governing bodies (Chief of Venezuelan Court Resigns, 1999). The Supreme Court had ruled that the ANC did not have the power to dismiss congress. After one such ruling Sosa remarked that the ANC was responsible for drawing up a new constitution not to “supplant existing institutions or to govern the country” (Roth, 1999). The court had previously determined that it was willing to work in conjunction with the constitutional assembly, Sosa is quoted as stating that: “Until the new charter has been written and approved by voters, she added, '’the Supreme Court will carry out its duties in accordance with the Constitution of 1961.’'' (Roth 1999). The apparent switch in opinion is believed to have come from outright pressure against the court (Interview 447; Interview 462; interview 473). One lawyer stated directly that the judges ruled in favour of President Chávez because they did not want to lose their jobs (Interview 504). Meanwhile, another legal expert stated that Magistrates thought that siding with the government was the best means of keeping peace—and argued that at times this was more important especially since judges had been so accustomed to ruling based on political factors (Interview 504b). Contributing to fear among magistrates, Manual Quijada president of the assembly commission was quoted in local news sources as directly threatening dissolution of the Supreme Court if it attempted to interfere with the work of the ANC. The legal justification for the 25 August ruling came from a decision that the constitutional assembly was supraconstitutional and had the authority to supersede the rules of the previous Constitution (Asamblea Nacional, 1999; Romero, 2002, p. 84; Interview, 542; Interview 543).147 This court decision gave the ANC legal authority to position itself above other powers (Interview, 542). In response to this decision the Chief Justice of the Supreme Court, 147 This was a decision in the Sala Plena of the Supreme Court on 6 October 1999. All Supreme Court magistrates have voting rights in the Sala Plena. 146 Cecilia Sosa Gomez,148 resigned in protest, saying, “the court simply committed suicide to avoid being assassinated. But the result is the same. It is dead” (Top Venezuelan Judge Resigns, 1999). Sosa strongly disagreed with the decision made by the Supreme Court, which overturned previous court rulings. Sosa did not believe that the constitutional assembly had the legal power to unilaterally reorganize the judicial system, placing itself above the law, despite the president’s repeated public statements that it would. Sosa had previously been instrumental in bringing attention to the need to reform the judiciary and improve its independence. One such step toward improving the judicial system had been to forge reform projects with the World Bank; she was also active in creating an international network of Supreme Court Judges (Interview, 475). Despite the shared goals of judicial reform, the President’s methods of conducting this reform clashed with the view of the Chief Justice of the Supreme Court. The underlying contrast of believes that fueled this conflict of opinions also prompted legal experts and political analysts to conclude that the president was rewriting the Constitution based on his own agenda with little regard for the law (Interview, 423; Interview, 449). Prior to Sosa’s resignation, the constitutional assembly had appointed a Comision de Emergencia Judicial (CEJ) (Judicial Emergency committee) and assigned it the role of cleaning up the judiciary by eliminating corruption and increasing independence (Hernandez-Mendible, 2000, p. 94). How it would do this was not laid out clearly, so there was no easy resolution to the controversy between the congress and the constitutional assembly over which body had greater legitimacy. Despite the surrounding controversy the CEJ quickly began reforming the judiciary. The CEJ committee was comprised of eleven members, four of whom were members of the 148 Inviting accusations of retaliation, Sosa was arrested in 2005 for her alleged involvement in the 2002 coup against President Chávez. 147 constitutional assembly.149 The committee was granted the power to investigate and discipline judges, designate judges to the Supreme Court and restructure the judicial system (Interview, 523). The committee used its power to fire judges without consultation. As criteria to determine who would be fired, the committee began by letting judges with more than 7 complaints against them go. This meant that by the end of the year, the committee had suspended 230 judges (International Commission of Jurists, 2001).150 One of these, and one of the first, was Supreme Court Vice President Franklin Arrieche, a well known Chávez critic (Human Rights Watch (HRW), 2004). It also fired ten judges responsible for acquitting 24 bankers implicated in a 1994 bank scandal.151 Since this had been a politically charged decision, it invited accusations of having been driven by partisan intentions. The actions of the committee fuelled the belief that the judicial reform process was being used for political ends.152 Other top officials resigned as assign of protest against the CEJ’s actions; among them was Normarina Tuozzo, who had been president of the Consejo de la Judicatura, the body in charge of the judicial system under the 1961 Constitution. Tuozzo’s resignation on 13 September was in direct protest to the constitutional assembly’s suspension of the judges. Several judges 149 Members of the CEJ included: Judge Alirio Abreu Burelli and Nelly Morillo, a member of the Consejo de la Judicatura. Manuel Quijada was head of the commission. 150 Gomez reports that when these judges were replaced with non-tenured judges—an issue I explore in the following chapter. “To the general dismay, some of the new judges had shady pasts and even criminal records, but the government was willing to overlook these details as long as the candidates offered their unconditional support to the Bolivarian revolution. In order to guarantee that the newly hired judges would remain unreservedly loyal to the regime, their appointments were made temporary so they could be easily dismissed without cause when deemed necessary.” (Gomez, 2008, p.19). 151 The 1994 banking scandal led to the collapse of the Venezuelan banking system and a subsequent blow to investor confidence. For a more detailed examination see: Weyland (1998). Arrieche was fired for having lied about his credentials during the interview process. This was reported to be common practice and because others who also did not have the credentials, and who had lied about it, were not fired many felt that his firing was a political move. Moreover, many of the judges that were appointed during the rebuilding of the Court system did not have the requisite education (Interview, 455; Interview 461). A lack of qualified candidates was used as justification for hiring individuals without the prerequisites (Interview, 484). 152 Despite tremendous pressure directly from the President during the ANC, he was reportedly not fully satisfied with the end result (Interview, 523). One example in particular was Chávez ’s push to implement a national police force. Despite failing to implement these changes through the 1999 constitution Chávez continued the push and the national commission on Police Reform (Interveiw, 564). 148 recounted the conundrum they faced at this time: they could abandon the judiciary in the face of changes with which they disagreed and forgo an opportunity to influence the direction of change, or they could stay despite their moral objections to the government’s actions and try to influence them (Interview, 462). The fates of these judges varied. When the judiciary determined that the constitutional assembly was supraconstitional there was no longer a single branch of government that could check the powers of the constitutional assembly. The power to dissolve and recreate institutions had enabled the assembly, and in turn Chávez’s 5th Republic, to break entirely from the previous government: “By the time the ANC ended its functions, there was not a single national power, other than President Chávez himself that had not been appointed by a body that was 93 percent Chavista” (Coppedge, 2002, pp. 30-31). Supporters of the constitutional changes assert that, from political and juridical perspectives, the changes were necessary to initiate participatory democracy, increase representation and judicial independence, and to reduce corruption. Overall, many of these supports saw the ends as justifying the means. If, as Kornblith asserts, constitutions are not intended to be “political programme[s] of any particular party, but rather all of them…” (Kornblith, 1991, p. 88) then a constitution motivated by narrow political interests could pose problems when it comes to implementing the democratic process. A constitution written as a direct reflection of one political stripe, as this dissertation has argued was the case with the Bolivarian Constitution of 1999, could be perceived as illegitimate. Regrettably, this can lead to the entire project being overlooked, not just the negative aspects of it. In the words of one of Venezuela’s best known constitutionalists: “Constitutions that are well respected ought to rise above subjectivity and should have a rationality that is valid for all circumstances and binding for everything” (García-Pelayo, 1991. 149 III, p. 3290). Although this may be unattainable and ideal, the domination of government supporters in the process of the Venezuelan Constitution’s creation was controversial: “the process for constitutional change was galvanized and controlled, from beginning to end, by President Chávez” (Segura & Bejarano, 2004, p. 227). The concentration of power associated with writing the Constitution enraged the opposition and sparked worry among observers concerned with the stability of democratic regimes in the region (Greste, 1999).153 Nonetheless, the Bolivarian Constitution was put to a referendum on 15 December 1999, and passed. Since 72 percent of those who participated had voted in favour, and 46 percent of registered voters participated in the referendum, the overall public approval rating for the new Constitution was 33 percent. Not only had Venezuela accepted the Constitution, but it had indirectly legitimized the process used to write it. Even many people who were critical of the implementation process celebrated the new Constitution for its attention to human rights, indigenous rights, justice, equality, and participatory democracy, and for totally re-founding the republic based on participatory democracy and a rule of justice (Interview, 542). These critics, however, questioned the democratic foundation of a constitution constructed with such narrow participation. Formally, the Constitution increased the ability of citizens to participate in the democratic process through referendums. This addition gave citizens the capacity to recall officials, including the president. Citizens’ right to express their discontent was protected and enshrined in Article 350. 153 The four members of the constitutional assembly who were not perceived to be in direct support of the government were Alan Brewers Carins, Claudo Fermin, Jorge Olvarria and Alberto Franceschi (Kelly, 2000). 150 5.4 Structure of the Venezuelan Government under the 1999 Constitution In addition to reforming the state-societal relationship, the Bolivarian Constitution of 1999 changed the structure of the Venezuelan government. This section will outline these major changes and highlight how they gave the executive greater power. Venezuela is a constitutional democracy with a directly elected president and a unicameral legislature elected in a bifurcated system of proportional representation. In addition to the more typical executive, legislative and judicial branches of government, the 1999 Constitution introduced a citizen’s power branch (or moral branch as it is sometimes called) and an electoral branch.154 These new branches of government were seen as equivalent to the executive and legislature. These additional branches are intended to make the Bolivarian Republic of Venezuela better able to represent the population’s interests, through direct participation of citizens. The citizen branch is comprised of an Ombudsman, a public prosecutor and the Attorney General. The citizen’s branch is intended to promote popular political participation. The electoral branch is headed by the Consejo Nacional Electoral (CNE) (National Electoral Council) and is responsible for overseeing all functions related to elections. A breakdown of the Venezuelan governing system and the relationship of the five branches of government are portrayed in Figure 7 below. 154 In the Venezuelan government structure these branches are theoretically set up as separate and independent as depicted in Figure 7. Similarly, Costa Rica’s constitution of 1949 added electoral and citizens branches to the government structure. 151 5.5 The Venezuelan Judicial System The 1999 Constitution also brought several changes to the judicial system. Venezuela is a civil law country, though its original constitution borrowed heavily from the Constitution of the United States (Aronovitz, 2000). Unlike many other federal countries, Venezuela has no dual organization of national and state courts, meaning all courts are part of the federal system.155 Administratively, there are seventeen judicial districts each with individual superior courts. Lower courts within a judicial district include courts of instruction, district courts, municipal courts, and courts of first instance. As depicted in Figure 8, the highest body in the judicial system is the Supreme Court of Justice. This Figure shows the relationship between upper and lower level courts. The Supreme Court is divided into six chambers, each responsible for different aspects of law. These chambers include the constitutional, electoral, criminal, citizen, social and political administrative. The current court structure (the Tribunal Supremo de Justicia) was introduced in the 1999 Constitution, but modified and expanded by the LOTSJ in 2004. The 1999 Constitution 155 For more on Federalism in Venezuela see: (Penfold, 2004; and Alvarez, 2003, pp. 155-157). Executive ElectoralJudiciary President Ministers Ombudsman Public prosecutor Comptroller General Citizen (Moral) Legislature Chamber of Deputies Executive- Vice-President Supreme Court National Electoral Council Government of the Bolivarian Republic of Venezuela Figure 7: Government of the Bolivarian Republic of Venezuela 152 changed the Consejo Supremo de Justicia (CSJ) by adding the constitutional chamber, which was tasked with discerning the validity of constitutional cases. In addition to structural changes the new Constitution changed the appointment procedure to fill the court. Under the 1961 Constitution, the Supreme Court had 15 judges. These judges were appointed for 9-year renewable terms. The 1999 Constitution expanded the number of judges to 20 and changed their terms to 12 non-renewable years, with one-third of the judges being renewed every 3 years.156 The important ramifications that these had on the judicial system are the topic of the next section. 156 Since the judges wee appointed at the same time, the renewal of judges is anticipated to pose a problem when the judges’ initial period is up in 2012 (Interview 548). It is also worth noting that the 20 member Supreme Court was expanded to 32 members in 2004 by adding two additional judges to each chamber. This will be elaborated upon in Chapter five. 153 Supreme Court of Justice Superior Court Courts of Instruction District Courts Municipal Courts Courts of First Instance Constitutional (7) Political-Administrative (5) Electoral (5) Citizen (5) Criminal (5) Social (5) Supreme Court Chambers (# of magistrates) Figure 8: Venezuelan Judicial System 154 5.6 Stronger Executive, Weaker Judiciary The purpose of the constitutional reforms that the Bolivarian Constitution delivered were to increase participation and representation, yet in striving for these changes the document also increased the power of the executive. For one, it changed the Congress from a bicameral body with a house of representatives and a senate to a unicameral body, the National Assembly.157 This eliminated the possibility of another check on new legislation and, because the senate had assured regional representation, reduced regional power and undermined the decentralization program that had been in progress. The 1999 Constitution also extended the presidential term from four to six years, and removed the previous ban on immediate reelection of standing presidents. Instead of a one-term limit, Venezuelan presidents could stay in power for two terms, or 12 years. Since Chávez had not been elected under the 1999 constitution he argued that he was eligible for, and went on to be elected for two consecutive terms.158 Moreover, the changes brought important ramifications for both the individual autonomy and political insularity of the judiciary. As argued in Chapter Two, these are important categories of judicial independence. Many of these changes, as will be analyzed below, increased the potential independence of the judiciary. The increase in control possessed by the executive, 157 Peru, Ecuador and Cuba are three other Latin American countries that also have unicameral chambers. One political analyst, and state employee claimed that prior to the 2007 reforms being released, some government advocates had suggested reintroducing the senate. He suggested that these positions were needed to provide more political favors to Chávez supporters (Interview, 523). 158 In 2007 a referendum on constitutional reform sought to amend the provision on presidential reelection to allow only the President to be reelected indefinitely. When this package of constitutional reforms was overturned in elections. Chávez sought to hold another referendum on the 15 February 2009. This referendum sought and won indefinite reelection for nearly all elected positions. 155 however, counterbalanced these reforms by putting the executive in a position that it could override these changes, undermining their purpose. 5.6.1 Political Insularity: Judicial review, as noted in Chapter Three, is one means of ensuring political insularity and that the judiciary has the capacity to act as a check on the powers of other governing bodies. The gap between the letter and practice of the law, however, undermine its impact in Venezuela. Under the 1961 Constitution the power of judicial review was reserved for the Supreme Court in the integrated chamber—the Sala Plena.159 The methods for judicial review were changed in the 1999 Constitution, increasing the ways in which the court could evaluate the constitutionality of laws. The 1999 Constitution permits judicial review, to be initiated in the following ways: first, the chamber can be asked to rule on the unconstitutionality of stat
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UBC Theses and Dissertations
Bringing the judiciary back in : an analysis of the impact of executive-judicial relations on democratic… Burns, Lesley Martina 2009
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