Latin America: The Perils of Judicial Reform

by Aníbal Pérez-Liñán and Andrea Castagnola*

Former President of Chile and current head of the United Nations OHCHR Michelle Bachelet addresses the Chilean Supreme Court in 2015

Former President of Chile and current UN High Commissioner for Human Rights Michelle Bachelet addresses the Chilean Supreme Court in 2015/ Gobierno de Chile/ Flickr/ Creative Commons/ https://www.flickr.com/photos/gobiernodechile/22180910394

Conventional wisdom that institutional reforms always strengthen the judiciary is not supported by the facts. A constitutionally fixed number of justices is widely thought to make “court packing” more difficult, and longer terms in office supposedly protect judges from partisan trends. Nomination processes that involve multiple actors should produce moderate justices; high requirements for impeachment should protect judges from legislative threats; and explicit powers of judicial review should assure politicians’ compliance with judicial decisions. Our research, however, shows that institutional reforms often undermine judicial independence, even when they appear to improve constitutional design along these crucial dimensions.

  • Countries with longer democratic traditions such as the United States, Chile, Costa Rica, and Uruguay display low turnover: few justices leave office in any given year, and their exits appear to follow a random pattern. But countries like Bolivia, Honduras, Guatemala, El Salvador, and Paraguay – all of which nominally protect judges from political pressures – display abrupt patterns of judicial turnover. On repeated occasions, a majority of the court has left in the same year, allowing for a complete reshuffle. About half of all exits in our sample took place in years when more than 50 percent of a court left at once, mostly due to political pressures.
  • Some constitutions create turnover by design. Until 2001, for example, Honduran justices served for four years, concurrent with the presidential term. However, less than 30 percent of court reshuffles can be explained by constitutional rules. In Argentina, even though the Constitution grants Supreme Court justices life tenure, presidents forced a majority of justices out of office in 1947, 1955, 1958, 1966, 1973, 1976, and 1983.

Our project analyzed the tenure of almost 3,500 justices serving in Supreme Courts and Constitutional Tribunals in the Western Hemisphere since 1900. We found – against our expectations – that several constitutional reforms increased the likelihood of turnover in the high courts. Because major reforms produce turnover in Supreme Courts and Constitutional Tribunals, they create new opportunities for parties to appoint loyal judges and politicize the courts.

  • Constitutional reforms that involve more actors in the nomination of justices (i.e., “multilateralize” the process) also increase turnover in the high courts. Reforms that constrain the removal of justices (for example, requiring supermajorities for their impeachment) paradoxically have prompted the exit of justices in democracies. Constitutional reforms that granted courts explicit powers of judicial review of government actions increased judicial instability, and reforms that grant life tenure to justices on average created turnover in the high courts, particularly when adopted under dictatorships.
  • Two basic reasons seem to explain these paradoxes. In the short run, reformers exercise (and abuse) “constituent” power, restructuring the courts in ways that force the resignation of incumbent justices or create new vacancies. In the long run, formal constitutional protections for the judiciary create a strategic trap. If parties can use informal instruments, such as threats and bribes, to induce the resignation of judges, their incentives to deploy those blunt instruments are greater when justices are completely isolated from other forms of political influence.

Some features of constitutional design – including life terms and supermajority requirements to impeach judges – do explicitly protect justices against purges. Other constitutional features, however, create incentives for the political capture of high courts. Greater powers of judicial review, for example, make courts politically relevant and, therefore, more important targets. A constitutionally fixed number of seats prevents court “packing” but encourages purging as an alternative. Appointment procedures controlled by the President and Congress make purges profitable for them. Irrespective of their stated goals, constitutional amendments and replacements offer a window of opportunity to reorganize the composition of the judiciary.

  • Judicial purges occasionally pursue desirable goals, like the removal of judges who have been corrupt or obstructed transitions to democracy, but a recurrent pattern of politicized replacements inevitably produces a weak judiciary, creating an unstable interpretation of the laws and the Constitution.

July 9, 2019

* Aníbal Pérez-Liñán teaches political science and global affairs at the University of Notre Dame, and Andrea Castagnola teaches judicial politics at the Universidad Torcuato Di Tella, in Buenos Aires. Their project was supported by the National Science Foundation. Conclusions expressed here do not necessarily reflect the views of the NSF.

Central America: Hybrid Anti-Corruption Commissions Can Work

By Chuck Call*

Map of Guatemala, Honduras and El Salvador, with Guatemala and Honduras territory being covered by photos of well-known politicians being arrested.

Prospects for an International Commission against Impunity and Corruption in El Salvador: Lessons from Neighboring Countries in Central America logo / CLALS / https://www.american.edu/centers/latin-american-latino-studies/Prospects-for-an-International-Commission-against-Impunity-and-Corruption-in-El-Salvador-Lessons-from-Neighboring-Countries-in-Central-America.cfm

If newly inaugurated Salvadoran President Nayib Bukele pursues his campaign calls for the creation of a hybrid international commission to fight corruption and strengthen judicial institutions, he will face tough challenges from entrenched interests. However, the experiences of Guatemala’s CICIG and Honduras’s MACCIH show that a strong investigative mandate, close partnership with vetted national prosecutors, strong international backing, and transparent accountability will increase the chances of success of any such mission. (Full text of the study is here and aquí.) CICIG and MACCIH were born of political crises, but they were given different authorities, faced different expectations, and delivered different results.

  • Both missions have had historic investigative and prosecutorial achievements – bringing former and current senior officials to account as never before and putting powerful elites on notice that impunity will not be tolerated. CICIG has dismantled corrupt networks, exposing their reach into the Congress and the Cabinet, indicting hundreds. MACCIH has helped indict dozens of legislators and a former First Lady. Working with special units of prosecutors, they have also contributed to local institutional capacity to root out corruption.

Both CICIG and MACCIH have struggled against the pressure tactics of the many corrupt officials, legislators, and economic interests who most feel threatened by them. In contrast to Guatemala, where CICIG was key to the adoption of several laws that served as a foundation for effective investigation of organized crime, the Honduran Congress has refused to pass such laws. Legislatures in both countries have changed laws specifically to vitiate prosecutions (including of themselves) advanced by the missions. Corruption among judges, especially in Honduras, has made winning convictions extremely difficult. After CICIG shifted its sights beyond politicians to powerful businessmen a few years ago, Guatemalan elites launched a campaign to smear CICIG as an incursion on sovereignty and a socialist plot. Both missions have confronted constitutional challenges.

Key lessons from CICIG and MACCIH’s experience include:

  • Realistic expectations are important. The legal and diplomatic negotiations and logistics necessary to set up “hybrid” units combining domestic and international investigators slowed both entities’ starts. It took over two years for CICIG to secure its first convictions, and MACCIH’s investigations have led to only 12 cases, although these are major corrupt networks. The focus of many Hondurans on ousting President Juan Orlando Hernández has obscured some of the important cases advanced by the mission and its Honduran partners.
  • Anti-impunity missions can threaten systems of political and economic power in ways that go beyond judicial processes. Despite the technical and juridical character of both the missions, they have exposed in detail how criminal enterprises interact with political parties, elected, and appointed officials, and current and former security officials. The missions have also detailed how legislators receive illicit campaign funds and how they fraudulently spend public monies, forcing changes to these decades-old corrupt practices. In Guatemala, the prosecutions have dismantled corrupt networks involving cabinet ministers, generals, top business leaders and the former president and vice president, altering the political profile of parties and undermining the ability of prominent and corrupt elite structures of power to operate.
  • Strong partnerships with national prosecutorial units and with civil society are crucial for success and sustainability. CICIG and MACCIH could not have achieved what they did without close cooperation with carefully selected and vetted prosecutorial units. Those units, especially the UFECIC in Honduras, carried out much of the investigation and led the prosecution in both countries. The legacy of the hybrid missions rests in the future of these empowered professionals and society’s raised expectations of clean behavior from their public officials. Both missions have generated a greater sense that high-level politicians, officials and elites can be imprisoned for corruption and organized crime. Yet these missions have not heeded or informed civil society as much as they might have. Moreover, these experiences and the likely end to both missions in the coming months show that civil society is vital to educating society on the importance and possibility of accountable governance, and for demanding it from politicians and the justice system.
  • International sponsorship brings both advantages and challenges. The association with the UN (for CICIG) and the OAS (for MACCIH) has brought valuable political legitimacy, professional capacity, and needed resources. But it has also brought complications. In the case of MACCIH, slow and politicized appointments, questionable allocation of resources, and excessive day-to-day oversight from Washington, not to mention personal spats and undue interference by specific member states, have undermined performance and credibility. CICIG’s status as a non-UN body gave its commissioner the independence needed to take on tough cases and ignore political considerations. However, that lack of accountability is seen as having contributed to the alienation of many sectors in ways that left it politically vulnerable. Wavering U.S. support for CICIG since 2017 has emboldened the missions’ critics.

The experiences of CICIG and MACCIH show that, despite ups and downs, hybrid international-national missions can help a society fight corruption. In Guatemala and Honduras, these commissions achieved more than most observers originally predicted by dint of the vision and discipline of their leaders and sponsors as well as the work of courageous national officials and civil society groups often risking their livelihoods and lives. Their performance also shows that getting the mission right and sustainable takes time, communication, and strong partnership with national prosecutors. The main challenge now is that corrupt officials and businesses have become proficient at blocking investigations, prosecutions, and convictions.

  • Creating an International Commission against Impunity in El Salvador (CICIES) may be harder now than before CICIG and MACCIH scored their victories. However, President Bukele may have a historic opportunity to press the country’s two main (but weakened) parties, ARENA and the FMLN, to approve a strong mandate that fits the country’s particular needs. Experts advising then-President Mauricio Funes (himself ironically now on the lam for alleged corruption) concluded in 2010 that the country’s Constitution provides the basis for an international mission with a sufficiently strong investigative powers to have impact. The Guatemalan and Honduran missions show that a strong mandate and significant national and international backing could improve help El Salvador’s justice system reduce corruption and impunity. Such efforts may also have comparable impact in exposing in dirty detail, and perhaps reforming, unaccountable and exclusionary systems of political representation.

* Chuck Call teaches International Peace and Conflict Resolution at American University, where he directs a Center for Latin American & Latino Studies project analyzing MACCIH and anti-corruption efforts in Honduras.

Honduras: MACCIH Still Trying

By Aída Romero Jiménez

MACCIH Feb.22.2019

Luiz Antonio Marrey, Special Representative of the Secretary General, Spokesperson of the MACCIH / Flickr / Creative Commons

MACCIH, the OAS-sponsored mission to support the fight against corruption and impunity in Honduras, continues to investigate cases but with a lower profile than one year ago– and under growing political pressure.

  • Without MACCIH, most observers believe, cases like La Caja Chica de la Dama – for which ex‑First Lady Lobo is awaiting trial in prison – would not have developed. MACCIH is also credited with shutting down the Red de Diputados, a network of Congressmen accused of misappropriating government funds; the Pacto de Impunidad o Fe de Erratas, legislation that effectively shielded Congressmen involved in the Red; the Pandora case, which accused 38 lawmakers of stealing funds from the Ministry of Agriculture; and serious charges against former President Lobo’s brother.
  • Although MACCIH provides important leads and analytical capacity to UFECIC, the special prosecutor unit created to investigate corruption cases, its most valuable support comes from the political cover it provides as an internationally sponsored entity. It is often the public face of anti-corruption efforts in the country, even though Luiz Antônio Guimarães Marrey, the spokesman since last June, and his deputy have significantly scaled back their use of social media since the previous spokesman, Juan Jiménez Mayor, irritated the government with his public profile.

MACCIH’s successes have provoked resistance and, at times, a strong backlash from powerful sectors that feel threatened by its work, not unlike what has occurred with the International Commission against Impunity in Guatemala (CICIG).  When Guatemalan President Jimmy Morales banned the head of CICIG, Iván Velásquez, from returning to the country, several Honduran Congressmen were quick to state that the MACCIH mandate similarly had to be revised, and that its involvement in investigations had to be reigned in to ensure it was not overstepping its limits.  Echoing CICIG’s critics in Guatemala, they also alleged that MACCIH was violating the country’s sovereignty.

  • The Honduran Constitutional Court was already gunning for MACCIH when it ruled in May that UFECIC was unconstitutional. (UFECIC has continued its investigations without further interference, but local observers believe this could change at any moment.)  Congress has also redoubled efforts to reform Article 115 of the General Law of Public Administration to effectively shield itself from Public Ministry investigations into their handling of public funds.  Legislators want to transfer authority for such inquiries solely to the Supreme Auditing Tribunal, which civil society actors claim is sympathetic to the Congressional leadership.
  • The lack of judicial independence has remained a serious obstacle. In a high percentage of cases that go to trial, the charges have been reversed or downgraded, signaling just how fragile and corrupt the Honduran justice system is.

MACCIH’s progress in fulfilling its mission makes it vulnerable to attack and, possibly, non-renewal when its mandate expires in January 2020.  MACCIH spokesman Guimarães Marrey said in December that 11 new cases will soon be announced.  Many Hondurans hope that President Juan Orlando Hernández will be among the targets, on the assumption that he was aware of or involved in drug trafficking operations for which his brother, Tony, is under arrest in the United States.  Whether that happens or not, pressure on MACCIH is unlikely to abate.  Guimarães Marrey earlier this month re-released a draft “Effective Collaboration Law” – MACCIH’s main legislative priority – allowing plea-bargaining in return for accurate information leading to prosecutions.  Legislative opposition to the proposed legislation is strong, and its prospects – like MACCIH’s – remain uncertain.

February 22, 2019

*Aída Romero Jiménez is a team member of the CLALS project Monitoring MACCIH and Anti-Impunity Efforts in Honduras.

Honduras: Will Political Reforms Go Anywhere?

Honduras Highway Sign

Honduras by Nick Youngson CC BY-SA 3.0 Alpha Stock Images / Picserver.org / Creative Commons

By Eugenio Sosa*

Honduras’s long-running political crisis and the realignment of its political parties have given rise to broad discussion of political and electoral reforms, but resistance from the political parties – including the relatively new Libertad y Refundación (LIBRE) Party – appears likely to stymie significant change.  Honduran civil society groups increasingly believe that only through political and electoral reforms will the country move toward democracy.  Holding elections is an important starting point, reform advocates say, but deepening democracy requires reducing the monopoly of the political parties.  The configuration of the parties has changed significantly since the coup d’état in June 2009; the century-old “bipartisanship” of the National and Liberal Parties has been shaken up and become more volatile.  LIBRE has moved to the front line, and smaller players, like the Partido Anticorrupción (PAC), have faded.  Reformers argue that this realignment affords the country an opportunity to undertake reforms that cut across the country’s institutions and processes.

  • Depoliticizing the Supreme Electoral Tribunal (TSE) and making it a truly independent and autonomous body to supervise elections. The current TSE has fallen far short of its legal requirements to ensure, without prejudice, to enfranchise all citizens. 
  • Professionalizing and depoliticizing the National Registry of Persons – removing the partisan activists who dominate it today and directing it to issue identification cards without political influence. Observers agree that 30 percent of voters on the current lists have deceased or left the country.  Other citizens’ names have been mysteriously dropped from voter rolls or been lost while changing domicile.  Similarly, the country needs a complete, honest census.
  • Allowing regular citizens to staff election tables in polling places. They should be chosen based on clear criteria, such as their contributions to society.  In 2013 and 2017, credentials were being bought and sold with party funds, totally undermining observers’ credibility.
  • Establishing second round balloting when no candidate wins an absolute majority. The country’s shift away from a two-party system has significantly increased the chance that a president would be elected with a percentage of votes below the abstention rate.  A runoff between the top two candidates will give the victor greater legitimacy.

Other important reforms are receiving less attention.  Laws on transparency and accountability in campaign finances, such as the Law on Clean Politics implemented in 2017, have not had significant results so far, but discussion of ways to give them teeth has been limited.  Neither is there much talk about how the incumbent candidate benefits from access to public resources, including access to the national networks, or about the biases of privately owned media, which slant coverage and charge different rates for advertising depending on their preferences.  Guarantees of political participation by sectors traditionally excluded from representation and government, such as women, the indigenous, and youth, are also largely off the table.

The urgency for reform, obvious since the coup in June 2009, has surged since the contested elections in November 2017, during which the Constitutional Court decided in favor of the reelection of President Juan Orlando Hernández in the face of evidence of electoral fraud.  Honduras is now living the paradox of a President serving a second term that is still prohibited by the Constitution.  Some issues, such as re-election, demand serious national debate and may have to be resolved by plebiscite or through a National Constituent Assembly.

  • Despite the broad base of the organizations proposing reforms, the success of any initiatives will depend on the views, limitations, and vetoes imposed by the three main parties. Even LIBRE, the newcomer that previously challenged the status quo, sometimes appears to be buying into existing systems and could go soft on reform.  As a result, one possible outcome could be that certain reforms are implemented in form – such as modernization of the National Registry of Persons – but the parties retain their influence over the office’s magistrates and personnel.  In addition, neither of the three main political forces appears interested in allowing authentic citizen control over voting tables on election day. 
  • While the need for reform is arguably deeper than at any time since the current Constitution was approved in 1982, and while the proposals for moving forward are constructive and mature, the prospects for change appear limited. The configuration of the country’s political parties has changed, but their priorities and behavior have not. 

January 22, 2019

*Eugenio Sosa is a sociologist and senior analyst at the Centro de Estudio para la Democracia (CESPAD), in Tegucigalpa.  This article is adapted from his essay on the CESPAD website.

U.S. Immigration: Call for Wall Ignores Changing Migrant Profile

by Dennis Stinchcomb

Graph of southwest border apprehensions, FY 2012-2019

Southwest border apprehensions, FY 2012-2019 / Note: FY 2019 data is through November 2018. Figures may not total 100% due to rounding. / Data source: U.S. Customs and Border Protection

As a record number of Central American families and unaccompanied children flock to the U.S.-Mexico border, the Trump administration’s demand for a $5.7 billion wall ignores changing migrant demographics and leaves largely unaddressed an asylum system buckling under unprecedented strain.  While undocumented immigration at the U.S.-Mexico border remains at historic lows, over 48,000 individuals comprising family units (parents traveling with children) were apprehended at the U.S. southwest border between October and November 2018 – a 308 percent increase over the same two months in 2017.  Such a staggering rise comes on the heels of what was already a record-setting year.  Between October 2017 and September 2018, border officials tallied the highest level of family crossings on record; the over 107,000 individuals detained by border officials dwarfed the roughly 40,000 apprehensions of unaccompanied children that prompted the Obama administration to declare a “crisis” in summer 2014.

A closer look at recent immigration trends underscores changing realities at the border:

  • Central American families and children represent an ever-growing share of migrants. Because overall undocumented immigration at the border has dropped and families and children have surged, the latter now account for 40 percent of all unauthorized migrants apprehended, up from 10 percent in 2012.  (Prior to 2012, family apprehensions were not publicly reported.)
  • Guatemalans now account for over half of all Central American family and child migrants. Though Guatemala is more populous than neighboring El Salvador and Honduras, proportional disparities in migrant flows from the three Northern Triangle countries have widened in recent years.  Guatemalan families apprehended at the border doubled between 2017 and 2018, and the number of unaccompanied Guatemalan minors increased by over 50 percent.  An increasing share of these migrants are coming from indigenous communities where poverty and malnutrition are rampant, so border officials face compounding challenges including linguistic barriers and health needs – factors that may have contributed to the recent deaths of two Guatemalan children while in Border Patrol custody.
  • Family and child migration from El Salvador has plummeted to its lowest level since 2013. The abrupt decline in Salvadoran migration to the United States has led many experts to point to the chilling effects of the Trump administration’s decision to terminate Temporary Protected Status (TPS) for nearly 200,000 Salvadorans currently residing in the U.S.  The “Trump effect” following his early 2017 executive orders, however, was short-lived, and other events, such as possible controversy over elections next month, could renew migratory pressures and further exacerbate conditions at the border.
  • The dramatic increase in migrant flows from Central America has fueled an historic surge in asylum claims. At the border, credible-fear claims – the preliminary step in soliciting asylum – continue to climb precipitously, up from 9,000 in 2010 to 79,000 in 2017.

The U.S. Government’s proposed solutions to the burgeoning humanitarian crisis do not reflect the evolving profile of migrants at the U.S.-Mexico border.  President Trump’s border wall – a hallmark promise of his 2016 campaign – appears aimed at the familiar Mexican adult migrant of the early 2000s or the mythical “bad hombre” spawned by his own nativist tendencies.  His Administration’s recent attempts to deter migrants or bar their access to asylum, either by separating families or rolling back protections for victims of domestic violence, have not stemmed the flood of arrivals.  A new “caravan” of migrants is set to depart Honduras this week.  Nor will a wall extinguish migrants’ legal right to request asylum.  The President’s most recent budget request for modest funds for hiring immigration judges and providing border infrastructure to support “vulnerable populations” is being held up by the political impasse in Washington over his greatly disproportionate spending on a wall, Border Patrol agents, and detention facilities.  Compromise between the President and Congressional Democrats remains elusive three weeks into a confrontation that has shut down much of the U.S. Government.  While Democrats have expressed willingness to beef up border security in exchange for a significant immigration win, such as legalization of the Dreamers or renewal of TPS, anything short of meaningful reform to the U.S. asylum system will do little to resolve the backup at the border.

Jan 15, 2019

A Right Turn in Latin America?

By Santiago Anria and Kenneth Roberts*

Jair Bolsonaro

Brazilian President Jair Bolsonaro in January 2019. / Marcos Brandão / Agência Senado / Flickr / Creative Commons

After a long winning streak, the left in Latin America has experienced electoral defeats in a number of former strongholds since 2015 – including Argentina, Chile, and Brazil – but the trend is not unidirectional and so far falls short of being a regional “right turn.”

  • Right wing presidents govern today in those three countries as well as Colombia, Guatemala, Paraguay, Honduras, Panama, and Peru – a scenario that is quite different from 2010, when about two-thirds of Latin Americans lived under some form of leftist government. Democratization, financial crises, and market liberalization shaped the 1980s-90s, while mounting social discontent against neoliberal market reforms helped to produce a “left turn” that spread across the region following the election of Hugo Chávez in 1998.  Leftist candidates won 30 presidential elections in 11 different Latin American countries between 1998 and 2014.

The current trend lines are hardly unidirectional across the region.  Mexico, which remained under conservative government when most of the region turned toward the left after 1998, has recently elected long-time leftist leader Andrés Manuel López Obrador to the presidency.  Incumbent leftist parties have been re-elected one or more times in Uruguay, Bolivia, Costa Rica, and El Salvador.  Notably, leftist parties in some countries where they have been historically weak, such as Colombia and Honduras, have strengthened electorally and organizationally, laying the groundwork for further growth.  Leftists’ records elsewhere are mixed.  Rivalries among Ecuadorean leftists make their future uncertain.  Venezuelan President Maduro and Nicaraguan President Ortega have resorted to increasingly repressive and authoritarian measures to maintain their grip on power.

  • With the possible exception of Brazil, the right’s surge is not the result of the sort of social backlash that brought the left to power. In general, the right’s victories appear to be a routine alternation of power rather than a regional wave with common starting points and driving forces.  Argentina and Chile are the two clearest examples of routine electoral alternation of power explained by retrospective, anti-incumbency voting in contexts of economic slow-downs, corruption scandals, and social policy discontent.  In countries like Paraguay and Honduras, on the other hand, the shifts were initiated by non-electoral means – a politically motivated presidential impeachment in the former and a military coup in the latter – and then consolidated through elections after the fact.  In Brazil, the right turn can be traced back to the social protests that broke out against Dilma Rousseff’s leftist PT government in June 2013, but former conservative allies’ opportunistic impeachment of Rousseff, along with their imprisonment of former President and PT founder Lula, seriously weakened her party – paving the way for the election of anti-establishment candidate Jair Bolsonaro.

The left in power is still strong, though probably not unbeatable today, in countries like Bolivia and Uruguay, at least in part because of their roots in and strong connections with social movements.  Unlike the PT, both Bolivia’s MAS and Uruguay’s FA have managed to preserve more of their movement character and to avoid extreme forms of top-down control and professionalization.  The ability of mass popular constituencies and grass-roots activism to hold party leaders accountable and steer public policies in desired directions—a condition largely absent in countries like Brazil, Ecuador, and Venezuela—has helped the left maintain cohesion in Bolivia and Uruguay.  This cohesion, accompanied by significant reductions of inequality, helps to explain the continued vitality of left parties in these countries.  The recent strengthening of leftist alternatives in Mexico and Colombia, moreover, should guard against facile assumptions that a region wide right turn is underway.  Conservative forces’ recent victories are better understood as a reinforcement of the post-neoliberal left-right programmatic structuring of political competition in Latin America than a unidirectional political shift to the right.  That said, Brazil wields significant political and economic influence in the region and, traditionally seen as an “early mover” in the region, may be a bellwether of the future.  The ability of President Bolsonaro and his model of governance to deliver the results that Brazilians want—and to operate within the parameters of democratic institutions—will be key factors in determining the direction and strength of the region’s rightist wave.

January 9, 2019

*Santiago Anria is Assistant Professor of Political Science and Latin American Studies at Dickinson College, and Kenneth Roberts is Professor of Government and Director of Latin American Studies at Cornell University.

U.S.-Central America-Mexico: Migrant Caravan Shaking up Relations

By Fulton Armstrong

Honduran migrants meet with Mexican police in Chiapas

Honduran migrants meet with Mexican police in Chiapas. / Pedro Pardo / AFP Photo / Creative Commons

The underlying drivers of Central American migration remain the same as always – the lack of economic opportunity and strong institutions to protect citizens from violence and other threats – but the Trump administration’s accusations and threats in reaction to the caravan of migrants heading toward the United States is moving relations into uncharted territory, just two weeks after the parties congratulated themselves for progress made at a summit in Washington.

  • Honduran, Guatemalan, and now Mexican authorities have been unable to stop the peaceful caravan of 5,000-7,000 people without violating their rights and causing ugly incidents with high political costs at home. After shows of force, Guatemalan and Mexican border guards allowed them to pass, and local businesses and churches have spontaneously provided food, water, and shelter in each town.  Mexico originally said it would allow only those with current passports and identification to apply for refugee status, but, citing obligations under international agreements and national law, relented.  The migrants are now in Chiapas.

At a meeting with U.S. Vice President Pence and Secretary of State Pompeo on October 11, leaders from Central America’s three “Northern Triangle” countries – Honduran President Hernández, Guatemalan President Morales, and Salvadoran Vice President Ortiz – and Mexican Foreign Minister Videgaray trumpeted the progress that they had made in slowing the flow of migrants from the region to the United States since launching the Alianza para la Prosperidad in 2014.  CLALS research, other studies, and many press reports show, however, that the underlying drivers of migration remain essentially unchanged.

  • The Alianza may eventually foment economic growth and jobs, but multidimensional poverty and high underemployment continue to drive many to flee their homeland. An analysis by the Instituto Centroamericano de Estudios Fiscales (ICEFI) shows that about 6.2 million children, adolescents, and young adults in the Northern Triangle lack access to an educational system.  Homicide rates have declined, but the region remains one of the most violent in the world.  UN estimates show a steady increase in the number of gang members in all three countries, up to 20,000 each in El Salvador and Guatemala.  The gangs often fill voids left by government institutions that are underfunded and, often, weakened by corrupt officials’ embezzlement.  While violence has long been a driver of migration from urban areas, it is now causing new patterns of migration from rural areas as well.  Domestic violence and abuse, which UN data indicate affects up to 40 percent of girls and 16 percent of boys, is another problem some parents want children to escape.
  • President Trump has not acknowledged these drivers, and instead has portrayed the migrants in the caravan as an “onslaught” of criminals. (He also claimed that “unknown Middle Easterners” are among them but later admitted “there’s no proof of anything.”)  He apparently calculates that stirring up fear helps his allies in the U.S. Congress as midterm elections approach, as well as his campaign for a new wall on the U.S.-Mexico border.  He has threatened the Northern Triangle governments and Mexico for not stopping the migrants, tweeting Monday that he will “now begin cutting off, or substantially reducing, the massive foreign aid routinely given to [them]” because “they did nothing for us. Nothing.”  Mexican officials, relieved that the confrontation over the NAFTA renegotiation was resolved, now fear another major disruption in bilateral relations.

The migrant caravan is testing the administration’s relations with its closest allies in Central America.  Trump’s jettisoning of the nice talk from Pence’s recent summit will not in itself harm ties; the Central Americans and Mexicans are aware of his impulsive streak and may calculate that they can weather the windstorm.  His accusations and threats to suspend aid, however, reveal a fundamental misunderstanding of the underlying drivers of the migration, and he seems unaware that his partners have been unwilling to undertake the political and economic reforms needed to address those drivers except in minor ways that U.S. aid enables.  Trump apparently thinks his partners should use force – even the military if needed (as he’s threatened on the U.S. border) – to stop the flight of humans from the miserable conditions in which they live.  He also apparently judges that the more migrants are made to suffer, such as through the separation of family members who manage to cross the border, the less likely they are to try.  The caravan’s provocations and Trump’s reactions could blow up the game that has allowed both sides to pretend the problem will go away with token programs, intimidation, and a wall.

October 24, 2018

U.S. Immigration: Lacking Lawyers, Newcomers Join the Undocumented

By Dennis Stinchcomb

Immigration court backlog

Pending cases from the Northern Triangle in U.S. immigration courts. These cases now account for over 53% of the total backlog. / Note: FY 2018 data is through July 31. / Data source: TRAC, “Immigration Court Backlog Tool,” http://trac.syr.edu/phptools/immigration/court_backlog/.

As Central Americans swell the backlog of cases in U.S. immigration courts, the tens of thousands of them who do not have lawyers are joining the ranks of the country’s undocumented population.

  • The immigration court system lacks the resources to keep pace with the influx of unaccompanied children and families from the “Northern Triangle” countries of El Salvador, Guatemala, and Honduras. The backlog of cases has more than doubled since 2013 – from 350,000 to over 764,000 as of August – with cases involving people from these three countries now accounting for more than half of them.  The wait for a hearing is now several years, and pro bono or low-cost attorneys are overburdened.
  • Many thousands of other newcomers – lacking information and the ability to overcome linguistic and cultural barriers and fear – are not looking for legal assistance, and they remain unaware that representation is critical to their chances of legally staying in the United States. Migrants without an attorney are far less likely to appear in court, and many – nearly 40 percent (or 103,000) of all Central Americans whose cases were filed in 2013-17 and have been decided– are ordered deported “in absentia” just for failing to appear at a scheduled hearing.  Immigrants with an outstanding removal order who are apprehended are subject to expedited deportation without judicial review, meaning that – again, without a lawyer – they will be returned to their home countries without ever having the legal merit of their claims evaluated.

Nonprofit community-based organizations across the country are mobilizing resources – often in collaboration with local governments and pro bono partners – to address these people’s legal needs, but a report* by CLALS reveals that access to counsel varies widely.

  • Access remains inadequate even in large receiving destinations like the Washington, DC, metropolitan area, where robust legal service infrastructures have developed in response to decades of immigration. In less traditional destinations, like North and South Carolina, only around a quarter of juveniles are represented in immigration proceedings.  In addition to geographical disparities, newcomers face differing odds of securing an attorney depending on their nationality.  Less than half of Central American minors nationwide have an attorney.  Based on a review of decided cases initiated in 2013-17, Salvadoran juveniles were more than twice as likely to be represented than their Guatemalan and Honduran counterparts, probably a reflection of the extent their communities are organized.

President Trump is justified in claiming that the immigration courts are inefficient – cases take an average of almost two years – but his proposal (tweeted on June 24) is to restore “Law and Order” and to “immediately, with no Judges or Court Cases, bring [migrants] back from where they came.”  His deeper dissatisfaction appears to be with a legal process that requires the impartial application of U.S. law – which for the majority of Central Americans fortunate enough to have an attorney results in a grant of legal status.  While this outcome may be unacceptable to the president, many localities across the United States have recognized the social and economic costs of destabilizing families and communities, and of depriving immigrant community members of due process.  Trump may hope that denying due process will dissuade individuals from entering or remaining in the United States, but the crisis in the U.S. immigration adjudication system is likely to remain serious, and tens or even hundreds of thousands more newcomers are likely to join the millions of immigrants already living in the shadows.

October 16, 2018

*The full report, “Newcomer Central American Immigrants’ Access to Legal Services,” is available for download here.  No registration is necessary.  The report is the first in a series generated as part of the project by CLALS in collaboration with the University of Houston, “The Impact of Central American Child and Family Migration on U.S. Communities,” led by Eric Hershberg and Jodi Berger Cardoso.

Honduras: Would a Constituent Assembly Help?

By Hugo Noé Pino*

Several people raise their hands in the Honduran National Congress

A recent session in Honduras’ National Congress. / Congreso Nacional de Honduras / Creative Commons

The need for Honduras to convene a National Constituent Assembly appears increasingly compelling even though the country’s political elites continue to oppose one.  Proponents of an “ANC” argue that it would not only help the country overcome the fraud perpetrated in last November’s elections; it would give oxygen to the country’s failing democracy.  They note that the current constitution, promulgated in 1982, has been violated and modified so many times – such as when President Juan Orlando Hernández was allowed to run for reelection – that the document’s original meaning has been obscured if not lost.  ANC proponents cite other facts pointing to the need for an assembly:

  • The constitution calls for a “planned economic policy,” in which the state and law “shall regulate the system and process of planning with the participation of the Powers of State, and political, economic and social organizations shall be duly represented.” But that planning model, which has never been implemented in Honduras, has been overtaken by the neoliberal model, based on market freedoms, adopted in the 1990s.  Amendments passed in 2012 were intended to create special employment and development zones, but not a single one has emerged.
  • Since the 2009 coup, Honduran society has been polarized by violations of the law, the concentration of power, abuses, corruption, and other problems – all aggravated by the widely contested election of last November. Business, workers, farmers, trade unions, academia, non-governmental organizations, and other sectors have been unable to find agreement on how to deal with the nation’s pressing problems.  ANC supporters say that true national reconciliation is going to require a new social pact that a new constitution can create.
  • Backers also argue that the ANC would breathe new life into the political parties – deeply discredited by the corruption and chaos engulfing them – and allow them to become a mechanism for intermediation between society and the state. An assembly, they say, would bring political leaders and the people together in pursuit of better alternatives to the current system.  A system of checks and balances, including a new judicial system, would help guarantee the separation of powers and enhance citizen participation in public policy.

Prospects for an ANC do not look good at this moment despite important endorsements, such as that of the Honduran Catholic Bishops Conference in a public letter last December.  Most of the political elite, responsible for setting the country on its destructive course, stridently oppose the idea, but proponents feel the elites will eventually have to accept one.  The “national dialogue” launched after the November elections has made no progress or, worse, has aggravated tensions.  The black cloud over those elections and the surge in corruption cases under investigation – an important achievement of the Misión de Apoyo contra la Corrupción y la Impunidad en Honduras (MACCIH) and its partners working under the Attorney General – have driven politicians to dig in their heels.  Their efforts to hold onto power, prevent transparency, and block accountability puts them directly against the sort of reforms an ANC would represent. 

  • Even when the political class eventually allows the ANC proposal to take off, many obstacles lay ahead. One of the first – and extremely difficult – steps would be selection of a truly independent Supreme Electoral Tribunal to oversee a referendum on the ANC and the election of assembly delegates.  The questions on the ballot would be simple, focused on support for the ANC and support for presidential reelection, but the task of making Honduras an inclusive society, with transparency, accountability, and respect for the rule of law would take the sort of vision and discipline that only a new constitution would provide.  While critics claim an ANC would be playing with fire, it’s certainly better than the current situation in which we are all threatened with being burned.

August 14, 2018

* Hugo Noé Pino is currently a professor and coordinator of a Ph.D. program at the Universidad Tecnológica Centroamericana (Unitec) in Tegucigalpa, Honduras.

Honduras: Narcotics Trade Accelerating Deforestation

By Luis Noé-Bustamente*

Río Plátano Biosphere Reserve (Honduras)

Río Plátano Biosphere Reserve in Honduras. / UNESCO / Wikimedia / Creative Commons

The rapid increase in deforestation in Honduras is being driven to a significant degree by the narcotics trade’s use of logging, land purchases, and cattle operations to launder drug profits.  Honduras has lost approximately 30 percent of its total forest cover since 2000, according to the Food and Agriculture Organization of the United Nations.  Research indicates that the burgeoning drug trade connects businesses involved in illegal logging, timber sales, and the use of the cleared land for cattle ranching as a mechanism to launder drug trafficking money.  Criminal organizations insert illegal timber into the existing legal supply-chain, hiding illicit profits within legal revenue streams.

  • Drug traffickers’ access to capital gives them immense social, economic, and political influence in remote areas. Research published in the journal Environmental Research Letters shows that they are able to conduct unusually large, remote, and fast forest-clearing in areas where they also collaborate with illegal loggers to grab land, enabling them to later merge both activities through cattle ranching operations.  Last year, a spatio-temporal study led by Dr. Steven Sesnie, an ecologist at the U.S. Fish and Wildlife Service, estimated that as much as 25 percent of the annual forest loss in Honduras during the past decade can be linked to the drug trade.

Even though these emerging regional bosses are growing in influence and audacity, the Honduran government does not acknowledge the scope of their illicit activities – even in the Rio Plátano Biosphere Reserve (RPBR), the country’s largest natural forest reserve (approximately 800,000 hectares).  In 1997, the Honduran Congress designated three different zones in the RPBR to provide some long-term protection of its sparsely inhabited core zone and to promote sustainable development in its more populated buffer and cultural zones.  Available information indicates, however, that enforcement has been very spotty, with only very rare action against only low-level violators.

  • Parts of the RPBR have experienced what forestry experts call alarming levels of cleared forest patches – even in areas with limited or no road access, where only illicit traders go. The RPBR’s secluded “cultural zone” is experiencing forest clearing at an estimated rate of more than 100 hectares per year (50 times more than in 2005).  Sensie’s report directly correlates this with increased drug trafficking throughout the country.  Indeed, there is a positive and substantial correlation between the country’s recorded percentage of GDP from drug trafficking (based on the same study) and the amount of irregular forest loss.

Under current conditions, Honduras has limited ability to address the institutional, socioeconomic, and criminal factors that exacerbate deforestation.  Unemployment, corruption, weak law enforcement, and violence create an environment that facilitates the illegal triad attacking Honduran forests – the narcotics trade, illegal logging, and land grabs.  The country has shown little political will to use what few legal tools it has to keep illegal groups from bribing and, failing to buy them, intimidating the law enforcement and government officials who give them harvesting or transport permits.  High unemployment and poverty in rural Honduras also create a strong incentive for local residents to cooperate with criminal organizations to obtain income and protection for their families – and severely dissuading them from with what few investigations might be undertaken in their areas.

  •  The increasingly obvious link with the narcotics trade, however, offers a way to squeeze illicit logging and livestock operations. Earlier this year, two months after U.S. prosecutors indicted Honduran Congressman Fredy Najera Montoya for conspiring to import cocaine into the United States, Honduran courts finally – after years of allegations against Najera for “operational irregularities” – accused him of environmental crimes related to his illegal use of wood products and forging official documents.  Such actions, as well as a recent agreement to work with USAID to better enforce environmental laws, are good signs, but meaningful progress addressing deforestation must take into account the underlying causes: the country’s weak rule of law, lack of economic opportunity for most of its population, and the near-total lack of institutional presence in much of rural Honduras.

July 17, 2018

* Luis Noé-Bustamente is a CLALS research assistant.  He is on a team dedicated to a new two-year project by CLALS and InSight Crime investigating the clandestine wildlife trafficking and logging industries throughout the region.