Latin America: Politicians instrumentalize judiciary

Bolivia's former interim president, Jeanine Anez, was in office for just under a year, from November 12, 2019 to November 8, 2020. Now she is remanded in custody, at the request of the Bolivian public prosecutor, and is being investigated on charges of inciting hatred, terrorism, and conspiracy. The last possible charge refers to an alleged "coup" against Bolivia's previous president, Evo Morales.

Anez's supporters say she is the victim of political persecution, which is just what Morales' supporters said of him when he was forced out of office in November 2019. Charges were brought against him, too — of corruption, terrorism, even pedophilia.

Other members of his government met with a similar fate. In an analysis of 21 such cases, the nongovernmental organization Human Rights Watch (HRW) found "instances of baseless charges, due-process violations, infringement on freedom of expression, and excessive and arbitrary use of pretrial detention."

However, in this report, HRW also found that, during Evo Morales' presidency, "many of Morales' political rivals and critics were prosecuted or investigated on charges that appeared to be politically motivated."

The problem of the political instrumentalization of the Bolivian judiciary is not new, says Marie-Christine Fuchs, director of the Rule of Law Program for Latin America at the Konrad Adenauer Foundation (KAS)."It's a universal phenomenon that manifested itself during the 14 years of Evo Morales's government, but also in the time of interim president Jeanine Anez," Fuchs told DW.

She believes that in the case of Jeanine Anez there was also a "violation of proper court proceedings, because the arrest warrant was not issued on the basis of duly substantiated facts. This was therefore an instance of an arrest warrant being used arbitrarily."

Political control of the judiciary?

Doubts about the independence of the judiciary are not confined to Bolivia. In Brazil, a judge recently annulled all the corruption convictions of the country's former president Lula da Silva, who served more than 18 months in prison in 2018–19.

It was a provincial judge who, in 2017, sentenced Lula to many years in prison, thereby disqualifying him for running for president again in 2018. The same judge was later made justice minister by the incumbent president, Jair Bolsonaro. Some argue it was not a coincidence.

"It was already known that prosecutors and judges violated procedural laws and constitutional guarantees, such as the presumption of innocence, under the pretext of combating corruption at any price," Carol Proner and Juliana Neuenschwander from the Brazilian Association of Jurists for Democracy (ABJD) wrote in a paper entitled "Lawfare as Political Weapon."

Marie-Christine Fuchs acknowledges that the transfer of the provincial judge, Sergio Moro, to Brazil's national department of justice raises the suspicion "that there may have been too much proximity between politics and the judiciary." However, she believes that in both Brazil and Colombia there are plenty of courts that do exercise their power of review.

"That is precisely the function of the judiciary," she says. "Naturally, it becomes problematic when the processes are politicized. I know that many courts in the region are sometimes accused of a certain political activism, because, for example, they sometimes perform tasks that it would be better, in other countries, to put in the hands of parliament. In many cases, though, the courts justify this by pointing to parliamentary failures or delays."

However, Fuchs stresses that it's "not all black and white," and that the possibilities for parliamentary action have been circumscribed this past year by the COVID-19 pandemic. "Many governments have declared a state of emergency, and that has allowed them to govern by decree, without parliamentary control, and with only retrospective judicial control."

Judiciary an essential pillar of democracy

Fuchs, who has authored a book entitled in German "Justiz und Politik in Lateinamerika – Eine Hassliebe?" ("Justice and politics in Latin America – a love-hate relationship?"), considers this a very dangerous scenario for the rule of law in the region, where there are many populist tendencies. She also emphasizes that "in order to safeguard democracy on the continent, one of the most important tasks is the reinforcement of judicial independence."

Fuchs ascribes its current weakness to general institutional weakness, which in turn has many causes. These also include "the structural inequality that Latin Americans have experienced for centuries, and which makes it hard for them to believe in the judiciary and its independence." Especially when it appears that the boundaries concerning the separation of powers are not understood by all in the same way.

The president of El Salvador, for example, caused controversy last November with certain tweets, in which, according to a statement from United Nations' Office of the High Commissioner for Human Rights, he was "attempting to put pressure on the judiciary to speed up trials against opposition figures."

The UN special rapporteur on the independence of judges and lawyers, Diego Garcia-Sayan, pointed out that "the executive branch of government must respect the independence of the judiciary and refrain from undermining its authority." Furthermore, he said, "Judicial decisions must be carried out, not interpreted by other branches of government.”