The central challenge for rule-of-law reform is the inescapable need to enlist the support and participation of the interim government and some of the vested interests within and outside the Venezuelan state that have undermined legal certainty and accountability for so long. Venezuela’s current dysfunctional legal system is the product of over two decades of partisan capture of the state and control over the economy. Maintaining the status quo will spell policy failure for the international community and Venezuelan citizens.
The US’s three-phase transition plan will require far-reaching changes in commercial and investment laws, commercial arbitration and the administration of justice. Such changes will necessarily be multifaceted, complicated and slow to implement. Negotiations and planning for this comprehensive – and technically and politically complicated – process therefore needs to begin immediately. And it should be conceived of in stages based on urgency and ease of implementation – with longer-term personnel changes and institutional reforms taking place later – as defined by agreement among stakeholders.
The challenge is political as much as technical. Deep reforms to the judicial system, security sector and legal framework will threaten entrenched interests that have shaped Venezuela’s political economy over the past two decades. Reforms must be pragmatic, incremental, and supported by coordinated engagement both with international stakeholders – including multilateral institutions, governments and investors – and with Venezuelan civil society and private sector actors.
The first step and keystone for this process, we argue, should be the negotiation of a wide-ranging international and domestic reform pact. This public pact should identify necessary changes, set priorities, and outline a timeline and measurable benchmarks – allowing Venezuelan and international advocates for change to monitor and support each step. Such a process can yield relatively quick consensus on specific laws that will need to be repealed or amended. It can also support expansion of investor-friendly interim measures such as arbitration and negotiation in relation to Venezuela’s defaulted debt. Other essential reform commitments must include the release of all political prisoners, and cooperation by the Venezuelan authorities with multilateral organizations on economic technical assistance and human rights.
Reform commitments must include the release of all political prisoners, and cooperation by the Venezuelan authorities with multilateral organizations on economic technical assistance and human rights.
Negotiations on this initial pact should also agree on the composition and mandate of an interim committee of Venezuelan and international jurists to address longer-term reforms. The committee will need to cover the following issues, among others: personnel changes in ministries; vetting (or, if necessary, replacement) of judges; the interim streamlining of commercial, civil and criminal justice systems until a more comprehensive judicial overhaul is completed; and reform of the security sector and the prosecutorial offices. A publicly established independent interim committee should monitor progress in these areas. The negotiations and any reform plan will need to ensure the repeal of laws restricting freedom of expression and assembly – including the so-called ‘Simón Bolívar Law’ (Ley Orgánica Libertador Simón Bolívar contra el Bloqueo Imperialista y en Defensa de la República Bolivariana de Venezuela), which criminalizes advocacy of sanctions or the call for foreign intervention against state officials.
However, Venezuela’s current interim government has little tolerance for checks and balances on its authority, or for open political and civic dialogue. Some of its members and their associates are highly likely to resist the measures outlined above. Establishment of an independent judiciary, and the removal of key ministers and justice officials linked to human rights abuses and corruption, will create tensions between the government and both international and domestic advocates of reform. Breaking the control of the ruling Partido Socialista Unido de Venezuela (PSUV) over the state will also provoke tensions within the fractious government, the security sector, and the businesses – licit and illicit – that have long survived, and thrived, on access to accommodating officials.
Fortunately, the current constitution provides the normative foundation and institutional framework for making these changes. In fact, the 1999 constitution establishes many processes and guarantees on the rule of law and executive oversight and control; but the constitution has long existed more on paper rather than in practice.
Constitutionally, nominations and confirmations to judgeships are the purview of the president (interim or other) and the National Assembly, both of which are likely to favour preservation of the status quo (the acting president, Delcy Rodríguez, is a PSUV member, and the legislature is dominated by the party). Addressing the politicization and technical deficiencies of judicial personnel will require immediate, short-term measures to review the country’s broader cohort of judicial and security personnel – beyond high court officials and the attorney general – and to ensure transparent and accountable management of vetting and appointments.
A wholesale reconstitution of an independent Supreme Court remains a long-term objective. But there may be other interim means – such as the creation of temporary, independent professional courts and prosecutors’ offices – to ensure impartial, independent adjudication of legal cases in the meantime.
Sustained economic growth will require public and private access to capital. For this, Venezuela must return to international capital markets. But its ability to do so depends on restructuring the country’s defaulted external debt, now estimated at approximately $150–170 billion. The US is working to catalyse negotiations among bondholders, the Venezuelan government and international financial institutions. In April, the International Monetary Fund announced that it is again ‘dealing with the Government of Venezuela’, a step that reopens the possibility of broader multilateral engagement.
Crucially, that process needs to be leveraged not only to restructure the state’s liabilities, but also to secure concrete reforms on the rule of law and separation of powers, central bank independence, fiscal transparency, anti-corruption oversight, and the legal framework governing public financial reporting and the collection of economic and social data. Without such conditions, debt resolution may restore financing channels without restoring the institutional credibility needed for multi-sectoral investment and sustained recovery.
