Latin America is undergoing a rapid erosion of democracy. Several presidents in the region have launched attacks against institutions that do not align with their orbit of power, and the judiciary is one of them. Authors such as Montesquieu or Madison said that the purpose of a constitutional court is to safeguard the Constitution and impart justice. Others, such as Alexander Bickel, consider it to be the weakest power since it does not have the popular support of the executive or the economic element of the legislative branch. However, reality has surpassed theory and has shown that judicial power ensures political balance when it is independent. If it is co-opted, then authoritarianism advances.
Countries that are autocracies, such as Venezuela, started early on the persecution of judges. In 2009, Judge María Lourdes Afiuni was one of the first imprisoned by the regime after she dictated a probation measure for a banker. This did not please President Hugo Chávez, who said: “The maximum penalty for this judge, 30 years in prison, I request in the name of the dignity of the country”.
Currently, the Venezuelan justice system is aligned with Chavism, either by cohesion or by interest, and judges do not guarantee judicial independence. Another case is Nicaragua. The nation enjoyed an incipient democracy, and it was during his first term in office when Daniel Ortega raised the number of judges so that in 2009 the plenary of the highest court endorsed his indefinite reelection.
Fourteen years later, Ortega is still in power and has dealt another blow to the Nicaraguan justice system. On November 6, 2023, the vice president, first lady, and coordinator of Social Communication, Rosario Murillo, proclaimed herself president of the Judiciary. With her arrival, a purge began in this power, which resulted in 150 resignations and the appointment of 10 new magistrates.
As we can see, autocracies mold the regime to their image and likeness. In these cases, the judiciary is subordinated to the political power. These are the most extreme cases, but not the only ones, since when analyzing hybrid democracies we will find others.
In Mexico, President Andrés Manuel López Obrador began to attack the Supreme Court after the election of Norma Lucía Piña as its president. The minister has been characterized by maintaining distance from power and, above all, by guaranteeing the balance between powers. This has unleashed the annoyance of the executive, to the point that he has declared that for the 2024 elections, he wants Morena to win the majority in Congress and thus carry out a reform so that judges, ministers, and magistrates are elected by popular vote.
His attacks have also materialized in disqualifications from the morning conference, in the budget reduction to the judiciary, and in approving an initiative that eliminates 13 of 14 trusts of this power, 6 of which directly affect workers and not the top management, as the executive branch maintains.
In Central America, three countries have also direct attacks against judges. In 2021, the National Assembly of El Salvador dismissed 5 magistrates of the Constitutional Chamber and appointed new profiles close to Nayib Bukele. The objective was that the judges would approve the presidential reelection, which the Magna Carta prohibits.
The Chamber determined that reelection is a human right and a mechanism to reward good governments. The only restriction imposed on him was that he must be separated from the presidency 6 months before he can run again. Next year, Bukele will be campaigning for reelection.
In February 2023, the National Assembly of Honduras did not have the necessary votes to appoint 15 magistrates to the Supreme Court, an event that aroused disqualifications between the ruling party and the opposition. After reaching agreements, the judges could be appointed, but this has not prevented the ruling party from disqualifying some profiles.
Likewise, the Supreme Court of Justice of Guatemala is also besieged by power: 13 appointments have been pending since 2019. The process was halted because a prosecutor investigated Gustavo Alejos, who was accused of having made illicit agreements to appoint judges. With these appointments, partial profiles would be chosen that would respond to a political agreement and not to justice or impartiality.
Further south, in Argentina, Peronism started a series of attacks against 4 judges of the Supreme Court of Justice of the Nation. President Alberto Fernandez accused them of being biased and serving the opposition after a ruling ordered that more budget should be given to the City of Buenos Aires. The ruling party in the Chamber of Deputies initiated an impeachment procedure against the judges, which only prospered in commissions, since they did not have the qualified majority to carry it out.
Finally, Bolivia is the only country that elects the members of the Supreme Court of Justice by popular vote. The method is questioned by politics and academia since the judges have the support of the ballot box, but this does not mean that they guarantee judicial independence or judge impartially. Especially in a country that has been governed since 2006 by a single party.
Judicial elections were scheduled for December 2023. Nevertheless, the disputes between President Luis Arce, former President Evo Morales, and the Movimiento al Socialismo Party meant that the call for elections and registrations did not go out on time. I consider that it would have been a good case study to follow up the process and analyze the profiles that could be elected and thus sustain the partiality of the judges.
The exposure of these cases shows that the judiciary is threatened by the authoritarianism and populism of some leaders. These are not isolated events but rather respond to a regional phenomenon that must be analyzed jointly. To conclude this text, I invite readers to reflect on this issue through two quotations.
Circuit Judge Learned Hand once said, “In societies where restraint is lost, no court can be saved. Conversely, in those where civility persists, no court needs to be saved.”
The second quotation belongs to Mexican Supreme Court Justice Norma Lucía Piña, who said: “A court is virtuous to the extent that it exercises its independence when it is threatened. The mission of the constitutional courts is not to please the political majorities in office, but to enforce the Constitution”.
*Translated by Micaela Machado Rodrigues from the original in Spanish.