Across Latin America justice is increasingly wielded to settle political scores. With increasing political polarisation the rule of law is suffering which does not bode well for the long term wellbeing of Latin American nations.
In April, former Brazilian President Luiz Inácio Lula da Silva surrendered to police to begin serving a 12-year prison sentence for passive corruption and money laundering. It was just the latest in a string of arrests and prosecutions of Latin American political and economic leaders – a trend that began four years ago, with the eruption of the Brazilian Odebrecht Group’s bribery scandal. But while a crackdown on corruption is badly needed, the increasingly politicised approach is placing the entire region on a slippery slope.
With Latin America’s governments and legislatures facing a profound crisis of credibility, the judiciary has become a major player in some countries. In Brazil, for example, figures involved in Operation Car Wash (an ongoing investigation into large-scale corruption at the state-owned oil company Petrobras) – such as Deltan Dallagnol, the lead prosecutor, and Sérgio Moro, the federal judge in charge of the inquiry – have become true political power brokers. Their influence now far exceeds their roles as attorneys, magistrates, or judges of first-instance courts.
The real problem, however, is that officials like Moro have transformed judicial action against corruption into a moral and political crusade, for which they are willing to bend the law. Supreme Court magistrates argue that, in order to get Lula in jail before the 2018 presidential campaign, Moro has disobeyed the rules of criminal procedure and manipulated the mechanisms of preventive detention. Moro himself admits in his verdict that he is convicting Lula without any direct evidence of an illicit act.
Prosecuting corrupt politicians and business leaders is the kind of cause that would usually receive broad popular support. Yet, because of the judiciary’s activist approach, 51% of Brazilians disapprove of Moro’s actions, which include Lula’s 2017 corruption conviction.
Latin America has a long history of politicised justice and judicialized politics. As the nineteenth-century Mexican President Benito Juárez reportedly put it, “For my friends, grace and justice; for my enemies, the law.” Unfortunately, that sentiment remains all too popular in much of Latin America today.
In Mexico, the attorney general’s office – which has been without a leader for months – has been reluctant to pursue politicians close to the government who were, according to the US Department of Justice, involved in Odebrecht-related bribes. By contrast, the same office has eagerly pursued a money-laundering probe into Ricardo Anaya, one of the opposition’s presidential candidates.
Yet, even as Anaya has been a victim of judicial activism, one of his top advisers is Santiago Creel, who orchestrated the prosecution 13 years ago of the former mayor of Mexico City, Andrés Manuel López Obrador, in order to prevent Obrador from running for president.
In yet another example of the politicization of corruption investigations, Peruvian President Pedro Pablo Kuczynski resigned on the eve of an impeachment vote precipitated by his ties to Odebrecht, after the release of video recordings that showed key allies trying to buy the support of opposition lawmakers. But those videos were not exposed as a result of an independent judicial investigation, but rather as part of a political dispute between the children of former dictator Alberto Fujimori over control of Congress (and effectively over the country).
But it is Brazil that serves as the quintessential model for politically driven judicial proceedings. Most of the Brazilian public believes that former President Dilma Rousseff was impeached because of corruption. In fact, she was accused of using an accounting maneuver – used by previous presidents without major consequences – to reduce government deficits temporarily. According to one federal government prosecutor, Rousseff did not commit a crime.
The same cannot be said of Rousseff’s replacement, Michel Temer, who has managed to evade two impeachment attempts by buying political support in Congress. In fact, there are recordings of Temer allegedly authorizing hush payments to Eduardo Cunha, a former speaker of the lower house who is in prison for his involvement in the Petrobras scandal.
Aécio Neves, who lost the presidential election to Rousseff in 2014, is set to stand trial on charges of corruption and obstruction of justice. But the judges in charge of the investigation have not moved nearly as fast as Moro and his colleagues did in the Lula case, even though the Neves case is supported by much stronger evidence.
“The law is for everyone,” declared supporters of Moro’s campaign. They are right. But that means that the law should also be for Lula, who has been the victim of real judicial, media, and political persecution in the last four years. That is why world leaders, global scholars, and Nobel Peace Prize laureates – including former French President François Hollande, economist Thomas Piketty, and activist Adolfo Pérez Esquivel – signed several appeals on Lula’s behalf.
None of this is to say that there is no need for the judiciary to prosecute politicians and other powerful figures for corruption. On the contrary, Operation Car Wash has made starkly apparent the incestuous relationship between money and politics in Latin America.
But when judges circumvent the rule of law, they weaken it. And when those tactics serve political ends, as they have in Brazil, judges put democracy itself at risk.
In any case, the wave of judicial activism that the recent scandals have spurred has so far produced little or no actual change. In particular, there has been no electoral or campaign-finance reform, because that would require the support of the political and economic power brokers who benefit from the current system. Moro’s declaration that Operation Car Wash may be coming to an end has further weakened their incentive to act.
From Brazil to Mexico, those tasked with upholding the rule of law are increasingly wielding the administration of justice for partisan purposes. At a time of intensifying political polarization, this does not bode well for LatinAmerica’s future.
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