Venezuela: Revoke Emergency Decree

By declaring a "state of exception," on May 13, 2016, President Maduro has granted himself the power to restrict rights guaranteed in the Venezuelan Constitution. The 60-day emergency decree also allows the president to block the National Assembly from using its constitutional powers to sanction government officials, and authorizes the Foreign Ministry to suspend international funding to nongovernmental organizations.

"Until recently, the Maduro administration has been able to jail opponents and trample the rights of ordinary citizens without fearing any response from the other branches of government," said Daniel Wilkinson, Americas managing director at Human Rights Watch. "But now that the opposition controls Venezuela's National Assembly, the president has given himself the power to deprive this body of its authority to sanction government officials."

President Maduro's emergency decree represents a departure from Venezuela's obligations under the Inter-American Democratic Charter, which obliges Venezuela to promote and defend representative democracy, including the separation of powers.

The Venezuelan Constitution grants the National Assembly oversight powers over the executive branch, including the power to summon officials to be questioned about their policies and practices by legislative committees and – in the case of the vice president and cabinet ministers – to remove them from office through a no-confidence vote. The May 13 decree allows the president to impose a "temporary suspension" of sanctions of this kind if he deems they could "undermine national security" or could "obstruct the continuity of the implementation of economic measures for the urgent reactivation of the national economy [or] the provision of essential goods and services to the Venezuelan people."

The emergency decree also instructs the Foreign Affairs Ministry to suspend all agreements that provide foreign funding to individuals or organizations when "it is presumed" that such agreements "are used with political purposes or to destabilize the Republic." In a country where authorities have routinely accused human rights defenders of destabilizing Venezuelan democracy, this order could effectively force key Venezuelan independent organizations, which rely on foreign funding to work independently, to shut down or dramatically scale back their work.

In light of the widespread self-censorship of the Venezuelan media, a consequence of years of official policies and practices that have seriously undermined free speech, one of the few voices left that openly challenges the government's human rights policies is that of local nongovernmental organizations, Human Rights Watch said.

The practical impact of the "state of exception" declared by President Maduro would be to allow the government greater latitude to curtail human rights that are already under sustained assault in Venezuela, including the rights to freedom of association and expression. Under the International Covenant on Civil and Political Rights, governments do have the power to "derogate," or temporarily suspend, some of their human rights obligations by declaring a state of emergency – but only in the face of a public emergency that "threatens the life of the nation." Even then, governments may only derogate from human rights obligations to the extent "strictly required by the exigencies of the situation."

President Maduro's emergency decree does not meet these criteria, Human Rights Watch said. Instead, it appears to be a politically motivated action against the government's political opponents and independent organizations. The president's own words bolster that conclusion. On May 17, President Maduro declared: "The National Assembly lost its political validity. It's a question of time before it disappears." The president predicted that opposition lawmakers would reject the decree, suggesting that they would do so to create "a scenario of violence to justify a foreign intervention of a military nature."

The Venezuelan Constitution requires National Assembly approval of decrees declaring states of emergency. The National Assembly rejected the new emergency decree on May 17. However, the Supreme Court ruled in February that National Assembly rejection of decrees declaring states of emergency does not "affect the[ir] legitimacy, validity, and juridical efficacy."

Since the government's political takeover of the Supreme Court in 2004, the judiciary has ceased to function as an independent branch of government, and has routinely validated the government's open disregard for basic rights. The National Assembly, which was controlled by government supporters for most of the past decade, repeatedly enacted "enabling laws" granting the president broad powers to legislate. It repacked the Supreme Court, most recently in December 2015, to ensure that a loyal court remained in place. Since opposition legislators won the legislative elections of December 6, the Supreme Court has adopted a series of rulings that severely undermine the National Assembly's ability to legislate.

OAS Secretary General Luis Almagro has said he is considering invoking the Inter-American Democratic Charter to analyze threats to the democratic order in Venezuela. The charter allows the OAS to act without the consent of the government concerned to address "an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order."

The Inter-American Court of Human Rights has stated that judicial independence and the separation of powers are essential components of the democratic order that the OAS is mandated to protect by the charter. And authoritative interpretations by the Inter-American Juridical Committee and the OAS Secretariat for Legal Affairs make clear that situations like the current state of affairs in Venezuela – where the judiciary has ceased to function as an independent branch of government – warrant an active response by the OAS, with or without the consent of the Venezuelan government.

Venezuela is facing an economic crisis, with severe shortages of medicines and basic goods, and in recent weeks, opposition leaders have called for a public referendum on whether President Maduro should be removed from office.

President Maduro claims that the emergency measures are in response to a foreign-led plot to destabilize his government. The May 13, 2016 decree authorizes the president to "adopt measures and execute special security plans that guarantee the sustainability of the public order when faced with destabilizing actions" and "any other social, environmental, economic, political, and legal measures he deems convenient."

In the past, the Maduro government has responded to alleged "destabilization" plots by jailing opponents and critics. Venezuelan security forces have committed egregious abuses with impunity, including torture, against anti-government protesters, and have participated in nationwide operations since July 2015, that led to widespread allegations of abuses against low-income and immigrant communities.

"Given the Maduro government's record, there is every reason to worry that it will respond to an intensifying economic and political crisis by doubling down on the use of repressive practices, including arbitrary arrests, censorship, and violence," Wilkinson said. "The OAS should act now, before the situation possibly gets even worse."