Of late, Latin America has seen a series of confrontations between presidents and their countries’ judiciaries. As the region passes through a period of populism, leaders have emerged who are impatient with judicially imposed limits on their exercise of power. They have been prepared to denounce judges in the harshest terms, and even to seek to remake the courts in their own images. At the same time, judicial authorities have pushed back, defending themselves and their prerogatives. At a moment when democratic governance in the region seems wobbly, these confrontations are becoming sharper and more frequent.
“Militant Democracy” or “Lawfare”
Supporters of the courts praise them for being true to the spirit of “militant democracy.” The phrase is associated with the work of the German jurist and political theorist Karl Loewenstein, who, writing in exile from Hitler, argued that institutions must act aggressively to defend democracy from extremism—even if this means stretching their powers beyond previous norms. Failure to do so, in his view, doomed the Weimar Republic, allowing Nazism to come to power.
Those who see the courts as unjustly curtailing presidents’ ability to implement agendas, which the people had approved at the voting booth, tend to disparage judicial activism as “lawfare”—a term which they retain in the original English. Although it was originally coined as a neutral description of the tendency in international affairs to use legal tools to gain political and/or military advantage against an adversary, in the current context lawfare is asserted as an accusation against overweening courts siding with a president’s internal political opponents.
Some Lost Causes
It is a grim reality that, in several countries in the region, the concept of an independent judiciary simply no longer applies. In Cuba, Venezuela, and Nicaragua, the courts have become mere adjuncts of the ruling regime; their role is to provide a veneer of legality for whatever decisions are made. Fidel Castro instituted revolutionary tribunals immediately after taking power. Hugo Chavez enlarged Venezuela’s Supreme Court from twenty judges to thirty-two, naming faithful supporters to all the new positions.
In Nicaragua, when Daniel Ortega, pressured into holding free elections, had to leave office in 1990. But before doing so, he first packed the lower courts with Sandinista operatives, which helped pave the way for his 2007 return, after which he gained complete control of the Supreme Court. The actions of these countries’ pseudo-judiciaries have included draconian sentences for protestors and the disqualification of opposition parties from mounting electoral challenges.
And in El Salvador, there has been dramatic slippage recently. President Nayib Bukele took advantage of his large congressional majority to replace the judges of the nation’s Constitutional Court. He has subsequently undertaken massive detentions of alleged gang members as his recipe for dealing with El Salvador’s admittedly frightening crime problem, without any meaningful oversight from the courts.
Nonetheless, there are examples in Latin America of the judiciary standing up to powerful (and popular) presidents—most notably in Colombia in the mid-2000s, where it served as a check on President Alvaro Uribe’s aggressive “democratic security” program to keep it within recognized norms. It also rejected a constitutionally dubious effort on his part to hold a referendum as a prelude to running for a third term.
But more recently presidents in three countries—Brazil, Argentina, and Mexico—have been prepared to directly challenge the courts, using the harshest rhetoric against them, and in some cases, like Bukele, seeking to have judges removed from office.
Brazil: Pushing Back on an Authoritarian or Going too Far?
Jair Bolsonaro, Brazil’s hard right president whose four-year term ended on January 1 of this year, had an openly confrontational relationship with both Brazil’s Supreme Court and the Higher Electoral Court, which is chaired by a Supreme Court judge. Leftist former President Luiz Inácio Lula da Silva (generally known as Lula) was caught up in a massive corruption scandal, found guilty, and imprisoned in 2018 for a twelve-year term. However, to Bolsonaro’s dismay and anger, the Supreme Court ultimately found that the case had been marked by improper behavior by the prosecutor and the trial judge. Lula was freed and was able to run against Bolsonaro and ultimately defeat him.
As the October 2022 election approached, Bolsonaro became ever more hostile to Brazil’s judiciary, as court-supervised investigations began on subjects ranging from alleged corruption in his administration regarding the purchase of coronavirus vaccines to interference in senior police assignments and improper release of sealed police documents. Pro-Bolsonaro figures were investigated for hate speech, including that aimed directly against the Supreme Court.
Preparing for a close election, Bolsonaro asserted that Brazil’s electoral processes were rigged, in particular condemning Supreme Court judge Alexandre de Moraes, who has led many of the investigations of Bolsonaro and his supporters and who has chaired the electoral court. In September of 2021, Bolsonaro publicly called for judicial decisions to be ignored and said that unless de Moraes was punished the judicial system might “suffer something we don’t want to happen.” In the face of widespread condemnation, he subsequently backed off from this statement.
On January 8, only a week after Lula took office, Bolsonaro supporters occupied government buildings, including the Supreme Court, in Brasilia. After they were ultimately dislodged, the Supreme Court began an investigation into “instigators and intellectual authors” of the assault, including potentially Bolsonaro himself. It also asserted civilian jurisdiction over members of the military suspected of being complicit in the takeover of the buildings, which many observers view as an incipient coup, rather than having them tried by the military justice system. Bolsonaro himself is in Florida, but he may face legal jeopardy, which could conceivably result in him being barred from running for office again.
Those who approve of these vigorous judicial actions see them as very much in the tradition of “militant democracy,” with judges going the extra mile to protect Brazil from slanderous assaults on institutions and even a coup. But Bolsonaro’s supporters see the courts as having overstepped their authority in an effort to support Lula, their favored candidate for the presidency, and as seeking to block the exercise of free speech by his opponents.
With Bolsonaro gone from power, the prospect of further conflict over the judiciary’s role seems more remote. But there are reports that Lula may name to the Supreme Court the lawyer who handled his defense in his criminal cases—a step which would not only enrage Bolsonaro supporters but also cause more objective observers to question his commitment to judicial independence. And Lula has engaged in a high-profile fight with another independent institution, the Central Bank, over interest rate policy. So should the Supreme Court start to rule against Lula on key issues, we may see some fireworks, even if he does not go as far as did Bolsonaro.
Argentina: A Jail Sentence for a Former President
Meanwhile, in Argentina, a struggle is going in between the executive and judiciary, pitched at a level of rancor that is unusual even for that country’s tortured political life. It has reached a peak with an effort in Argentina’s congress to impeach the members of the Supreme Court—a drive supported by President Alberto Fernández, who has proudly noted that he is the first president since Juan Perón to undertake such an effort.
The triggering event for this effort was a Supreme Court decision nullifying a previous executive order regarding the distribution of federal funds to individual provinces. Fernández had taken money assigned under existing legislation to the city of Buenos Aires and given it to the province of Buenos Aires, which consists of the city’s suburbs and adjacent rural areas. The city is dominated by the opposition coalition, while the province is a historic stronghold of Fernández’s Peronists. The Supreme Court’s decision has been denounced as blatant favoritism to the opposition. The rhetoric also has a class edge to it, with the court accused of favoring the wealthy city over the poorer outskirts (although there is plenty of poverty within city limits). Without enough votes for the impeachment effort to succeed, Fernández and the Peronists appear to be engaging mainly in political theater.
But the Peronist animus against the Supreme Court has deeper roots than this one issue. Cristina Kirchner—former president, and now-vice president, who represents the left/populist wing of the party—has been found guilty by a trial court of corruption relating to massive fraud by a contractor for public works and been sentenced to six years of imprisonment. She is also defending herself in several other corruption and money laundering cases.
Finding a way to ensure that she has a friendly judiciary for her appeal and for the cases still pending has been her top priority, far outstripping the need to find solutions to Argentina’s worsening economic and social crisis. She has sought so far unsuccessfully to have an unconditional supporter named to the oversight body which handles judicial discipline. Following a failed assassination attempt by a disturbed individual, she has denounced the courts for not investigating aggressively dubious charges of involvement by the conservative opposition. She has also taken the fact that some judges had accepted invitations to an event hosted by a wealthy friend of conservative former president Mauricio Macri as indication of judicial corruption.