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The politicization of justice in Latin America

Latin America has extensive experience of politicized justice and judicialized politics. Today, as governments and parliaments face a deep credibility crisis, the judiciary has become a leading political actor. Español

Free Lula Demonstration. Source: Nueva Sociedad. All Rights Reserved.

Last April, former Brazilian President Luiz Inácio Lula da Silva gave himself up to the police to start serving a 12-year prison sentence for passive corruption and money laundering. His was the latest in a series of detentions and prosecutions of political and economic Latin American leaders.

The trend began four years ago with the outbreak of the Brazilian Odebrecht bribery scandal. However, while taking action against corruption is indeed a necessity of an urgent nature, the increasingly politicized approach of the judicial procedures to this end is placing the entire region upon a slippery slope.

Today, as governments and legislative bodies in Latin America face a deep credibility crisis, the judiciary has become a leading political actor in several countries in the region.

In Brazil, for example, leading figures involved in the Lava Jato operation (an ongoing investigation into large-scale corruption within the State oil company Petrobras) such as Deltan Dallagnol - attorney of the Federal Public Ministry of Brazil and lead prosecutor of this case - and Sergio Moro - the judge in charge of the investigation - have become true political actors. Their influence far exceeds their role as lawyers, magistrates or first instance court judges.

But the real problem is that civil servants like Moro have transformed judicial action against corruption into a moral and political crusade, for the sake of which they are ready and willing to bend the rules of the law.

The Brazilian Supreme Court judges argue that in order to imprison Lula before the 2018 presidential campaign, Moro bypassed the rules of criminal proceedings and manipulated the preventive detention mechanisms.

The Brazilian Supreme Court judges argue that in order to imprison Lula before the 2018 presidential campaign, Moro bypassed the rules of criminal proceedings and manipulated the preventive detention mechanisms.

Moro himself admits in his verdict that he is condemning Lula without any direct evidence from the commission of a wrongful act.

Confronting corrupt politicians and business leaders is the kind of cause that would generally gather widespread popular support. However, due to the activist approach of the judiciary, 51% of Brazilians disapprove of Moro's actions, including Lula's conviction for corruption.

Latin America has extensive experience of politicized justice and judicialized politics. As 19th century Mexican president Benito Juárez said: "Grace and justice to my friends; to my enemies, the law”. Unfortunately, this is still a popular feeling in much of Latin America today.

In Mexico, the Office of the Attorney General of the Republic, which has been without leadership for months, has been reluctant to persecute politicians with close ties to the government who, according to the US Department of Justice, were involved in Odebrecht related bribes.

On the other hand, the very same Office has eagerly put under investigation Ricardo Anaya, one of the opposition’s presidential candidates, for money laundering.

But even though Anaya has now been a victim of judicial activism, it must be remembered that one of his main advisers, Santiago Creel, was responsible for setting up an accusation, 13 years ago, against former mayor of Mexico City Andrés Manuel López Obrador to prevent him from running for president.

Yet another example of the politicization of corruption investigations is Peruvian President Pedro Pablo Kuczynski’s resignation, on the eve of an impeachment vote by Congress prompted by his ties to Odebrecht, after video recordings of some of his key allies trying to buy the support of opposition congressmen were released.

Those videos were not made public as a result of an independent judicial investigation, but rather as part of a political dispute between former dictator Alberto Fujimori’s sons over the control of Congress (and the country).

According to a public prosecutor, Rousseff did not commit any crime that would justify her removal from office.

However, Brazil is the example par excellence of politically motivated judicial proceedings. The majority of Brazilians believe that former President Dilma Rousseff was charged with corruption.

In fact, she was accused of using an accounting manoeuvre, which had been utilized by previous presidents with no major consequences, to temporarily reduce public deficit. According to a public prosecutor, Rousseff did not commit any crime that would justify her removal from office.

The same cannot be said of Rousseff's replacement, Michel Temer, who has managed to avoid two impeachment attempts by buying political support in Congress.

In fact, there are recordings of Temer allegedly authorizing payments for silence to Eduardo Cunha, former speaker of the lower house, currently in prison for his involvement in the Petrobras scandal.

Aécio Neves, who lost against Rousseff at the 2014 presidential elections, will be tried on charges of corruption and obstruction of justice. But the judges in charge of the investigation have not moved as fast as Moro and his colleagues did in the case of Lula, even though the Neves case is backed by much stronger evidence.

"The law is for everyone" say Sergio Moro’s supporters. They are right. But this means that the law must apply to Lula, who has been the victim of a judicial, political and media persecution over the last four years.

From Brazil to Mexico, those who have the responsibility of defending the rule of law are increasingly using the administration of justice for partisan purposes. 

This is the reason why world leaders, global academics and Nobel Peace Prize winners  including former French President François Hollande, economist Thomas Piketty and activist Adolfo Pérez Esquivel have signed several statements of support to Lula.

This is not to say that justice should not prosecute politicians and other powerful figures for corruption. On the contrary: the Lava Jato operation has revealed the incestuous relationship between money and politics in Latin America.

But when judges evade the rule of law, they are weakening it. And when their tactics serve political ends, as they have done in Brazil, they are putting democracy itself at risk.

In any case, the wave of judicial activism triggered by recent scandals has so far produced little or no real change. Particularly, there has been no electoral or campaign financing reform, because that would require the support of the political and economic actors who benefit from the current system.

Moro's statement that the Lava Jato operation may be nearing its end has further discouraged any action.

From Brazil to Mexico, those who have the responsibility of defending the rule of law are increasingly using the administration of justice for partisan purposes. At a time of intensified political polarization, this does not stand Latin America in good stead for the future. 

This article has been published as part of the partnership between Nueva Sociedad and democraciaAbierta. You can read the original here 

About the author

Gaspard Estrada es Director Ejecutivo del Observatorio Político de América Latina y el Caribe (OPALC) de la Universidad Sciences Po, en París.

Gaspard Estrada is Executive Director of the Political Observatory of Latin America and the Caribbean (OPALC) at Sciences Po University in Paris. 


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