Peru: Final Showdown at the Congress Corral

By Carlos Monge*

President Vizcarra speaking to Foreign Press in meeting

Peruvian President Martín Vizcarra meeting with Foreign Press/ Flickr/ Creative Commons/ https://bit.ly/2noHE1m

Peruvian President Vizcarra’s proposals to move up general elections from 2021 to 2020 and reform the election of new members of the highest court in the country – and Congress’s rejection of them – have sparked a crisis that has led him to dissolve Congress and call for new elections to replace it. The Congressional majority, led by the followers of Keiko Fujimori (in pre-trial “preventive prison” on corruption charges) and Alan García (who committed suicide in April to avoid arrest on similar charges), had rejected a series of reform proposals, although polls have consistently shown massive support for them and rejection of the Congress’s obstructionism. Events of the following 48 hours resemble a comedy script as the two sides faced off.

  • On September 30, the Congress rejected Vizcarra’s push for improvement of procedures for the election of new members of the Constitutional Tribunal – proceeding to elect a new member to its liking – and rejected his request for a Confidence Vote. In response, based on the constitutional prerogative the President has if a Confidence Vote is denied two times (his predecessor, Pedro Pablo Kuczynski, PPK, had also been denied one), Vizcarra dissolved the Congress and called for new elections to replace it. At the same exact time, Congress granted the Confidence Vote, but with new rules to be put in place afterwards. In the evening it “temporarily” removed Vizcarra from office, swearing in Vice President Mercedes Aráoz as “temporary” President.
  • On October 1, Aráoz – who the previous evening said she “accepted the [temporary presidency] with fortitude” – explained that she was not really President, said that her appointment was merely political symbolism, and declined the appointment. In the meantime, Vizcarra received the support of the Armed Forces and the associations of Regional Governors and Municipal Mayors, swore in a new Cabinet, and formally called for new elections in January 2020.

The confrontation is more than just a short-term political dispute between a President and opposition parties. It reflects the resistance of liberal and leftist politicians, journalists, church sectors, honest public officials, and social and citizen platforms to the total takeover of the state by a coalition of corrupt politicians, illegal economies, conservative religious groups, and corrupt businessmen. These latter groups have long had representatives in different parliamentary benches, ministries, and regional and local governments. But they did not have the direct total control that, according to many observers, they would have had if Keiko Fujimori, daughter of disgraced President Alberto Fujimori, won the 2016 elections.

  • Keiko lost the very tight race to PPK but never accepted her defeat. Her party devoted itself to bringing the PPK government down by compiling evidence of his involvement in corrupt practices in previous stints as minister and prime minister. But the same corruption scandal that helped them remove PPK in March 2018 became a threat for both Keiko and former President García – and emboldened Vizcarra to move away from initial conciliatory policies. The President embraced a strong anti-corruption agenda, confronted the Congress, and won enormous popular support.
  • The straw that broke the camel’s back was the Congressional attempt to capture the court through an internal election method in which parties presented their candidates in a 30-minute meeting and scheduled a vote for a few days later, with no public scrutiny of the candidates, no public hearings, or actions that could define the process as transparent and accountable.

Vizcarra has survived last week’s showdown, but the constitutional crisis and its underlying tensions are far from over. Leaders of the dissolved Congress insist that the new member of the court they elected last Monday be sworn in, so that a more conservative Constitutional Tribunal decides on the fate of Vizcarra´s move. But it could take months for the Tribunal to reach a decision. Until a new Congress is elected, Vizcarra will legislate via Urgency Decrees, without knowing the composition of the new Congress and his relationship with it.

  • The dispute over the narrative of events is raging. For some, paradoxically aligned with the Fujimori heirs leading the Congress, Vizcarra has staged a coup similar to that of Alberto Fujimori in 1992 and thus become a dictator. For others, he has proceeded according to the Constitution and in defense of democracy. The best hope now is that the country can deliver a new, democratically elected Congress that will collaborate in completing the pending judicial and political reforms and in supporting the ongoing anti-corruption investigations. If it succeeds, Peru will be a better country and have something to celebrate during the July 2021 Bicentenary of its Independence.

October 8, 2019

* Carlos Monge is an Advisor at the Natural Resource Governance Institute in Lima.

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.

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.

Guatemala: The War of Paz y Paz

By Steven Dudley*

CLALS Paz y Paz

Law professor and human rights attorney Claudia Paz y Paz’s selection as Guatemala’s first woman attorney general was a surprise, but strident opposition to her reappointment from the dark interstices of the political spectrum is not.  More hippy professor than government bureaucrat, she’s a woman who defied the odds when she took office in 2010.  Paz y Paz speaks with a soft, gentle tone to the point where she almost needs a microphone to run a staff meeting.  Yet, from nearly the moment she walked into the attorney general’s office, she made a difference.  She and her team arrested previously untouchable figures such Juan López Ortiz, alias Chamale, and dozens of members of the feared Mexican criminal group, the Zetas.  The country’s murder and impunity rates fell.  Paz y Paz also prosecuted former military officers, including former military dictator Ríos Montt and others allegedly involved in atrocities in the 1980s, and helped set up special offices to deal with violence against women.

Paz y Paz also demonstrated how, employing best practices, Guatemalan judicial institutions can excel.  Her office’s reliance on forensic evidence, telephone intercepts and video analysis made for stronger cases.  This took the onus off of eyewitness testimony, a notoriously unreliable means of fighting powerful criminal groups, especially those who have deeply penetrated the state.  Paz y Paz also widened the investigative net, looking at entire criminal structures, rather than focusing on single criminal acts.  She won praise from a broad array of international partners and pro-democracy forces inside Guatemala.  She was a 2013 Nobel Peace Prize nominee.

In spite of – or because of – these accomplishments, Paz y Paz is struggling to keep her job for another four-year term.  She has to be approved by a “postulation commission” made up of 14 lawyers who select the final six candidates, from which the president picks one.  Special interest groups, using shady brokers (some with ties to organized crime), are maneuvering to make sure that her attempt to reform Guatemala’s Attorney General’s Office ends sooner rather than later.  She has opened up many wounds and frightened Guatemala’s traditional elite, some of whose members worked with the Army during the civil war and believe they could be next on Paz y Paz’s list.  Efforts to block Paz y Paz’s second term underscore that Guatemala is a country that is still struggling to deal with its past civil war and its forever lopsided power structure.  Despite ending a nearly four-decade-old conflict in 1996, Guatemala is still at war –though the battles now take place in the courts – and the elites don’t want a formidable player like Paz y Paz to be in the game.

*Steven Dudley is co-Director of InSightCrime, which is co-sponsored by CLALS.  Click here for the full investigation of “The War of Paz y Paz.”

Mexican Judicial Reform: Example of the Need for a Closer Look

By Todd A. Eisenstadt

Foro: el Nuevo Sistema de Justicia Penal, a un Año de su Implementación en Baja California, con la ponencia: “Hacia una Justicia más Transparente” /Photo credit: Gobierno de Baja California  / Flickr / CC

Foro: el Nuevo Sistema de Justicia Penal en Baja California / Photo credit: Gobierno de Baja California / Flickr / CC

Mexico’s judicial reforms have proceeded at an uneven pace in each of the country’s 32 states since they were approved as a constitutional amendment in 2008.  The new and spacious “tower of justice” in Baja California shimmers in the desert sun, an outward sign of the $100 million-plus program that is the centerpiece of the state’s “law and order” administration.  However, halfway across Mexico, in the state of Puebla, litigators, police, and judges – untrained in the new judicial system they are implementing – watch their first important case, a manslaughter conviction, give way to a plea bargain after a series of errors.  Morelos, Oaxaca and other states do not have inter-connected computer systems for prosecutors and defenders, and Nayarit has not even passed a state-level criminal justice code to bring that state up to compliance with the 2008 reforms.  And Chihuahua, where Ciudad Juárez in 2011 held the distinction of being the most violent city in the world, a punitive “counter-reform” reducing the rights of the accused has set back that state’s reform efforts.

Progress on the reforms has been stymied by lack of a litigation tradition, a failure in interagency cooperation, a shortage of technology and resources, a lack of political will, and a lack of public support.  Mexico’s drug-related violence has put it at the center of hemispheric debate on judicial reform, but even heralded reforms of the 1990s, such as in Argentina, Bolivia, Panama, and Peru, have been unevenly implemented.  Chile’s reforms, widely seen as successful, were made possible by overcoming inertias, including judicial resistance to the creation of an adversarial relationship between defense and prosecution that moved judges into an institutionalized neutral position.  Legal scholar Mauricio Duce also argues that the retooling of Chile’s Ministerio Público – an autonomous body that functions as a fiscalía or justice ministry – was crucial because the institution became the “engine” of the reforms.

Each country brings its own history, culture and institutional strengths and weaknesses to the challenge of judicial reform. With the results of the first generation of reforms so mixed, a rigorous review of  what has worked – and not – in Latin America, Africa, or Eurasia and elsewhere can help overcome these dramatic shortcomings in the implementation of  reforms. The political commitment to reform is important, but understanding the political contexts and legal/administrative components in each case is also essential for improving the rule of law and accountability, deterring violent crimes, improving human rights recognition, economic development, and establishing security and law and order. When academics, program managers, and political leaders understand why a country like Mexico can have such vastly varying results from the same reforms, they can all take a giant step toward achieving more lasting and positive change.

Todd A. Eisenstadt is a professor of government at American University.

Brazil: The STF, Congress, and Checks and Balances

By Matthew M. Taylor

Supreme Federal Tribunal (STF), Brasilia / Photo credit: R. Motti / Foter.com / CC BY-NC-SA

Supreme Federal Tribunal, Brasilia / Photo credit: R. Motti / Foter.com / CC BY-NC-SA

Brazil’s last resort for political minorities and opposition parties – the Supreme Federal Tribunal (STF) – is facing growing pressures on its independence.  In Brazil’s famously hyper-presidential system, the executive branch dominates Congress through an elaborate system of presidential decrees, budgetary pork, and cabinet appointments.  Since 1990, no president’s party has ever held more than one-fifth of the seats in Congress, yet presidents – using a diverse array of carrots and sticks – have routinely been able to rely on support from coalitions that surpass three-quarters of the Chamber and Senate.  As Brazil’s high court, the STF has been the only channel through which majoritarian decision-making has been contested.

In recent weeks, Congress has bluffed its way onto the scene: the constitutional committee in the lower house voted to curb the courts via a proposed – but ultimately shelved – constitutional amendment that would restrict the STF’s powers of constitutional review, subjecting decisions that Congress finds objectionable to public consultation.  The reaction has been deafening.  The press has drawn parallels to similar moves in neighboring Argentina and Venezuela.  Eminent political analyst Sérgio Abranches claimed that this was further evidence that an “oligarchic civil coup” was under way.

Some judicial actions have indeed been provocative, such as decisions on contentious issues such as political party formation and the distribution of oil royalties. But the Congress’ effort to curb the court has left a bitter taste – because it points both to the increasing politicization of judicial decision-making and its potentially destabilizing effects on the political system.  The fact that the amendment proposal had support even from some members of the opposition underscores the depth of congressional resentment of the STF’s proactive role.  The Court appears likely to face continued pushback from Congress, with overwhelmingly political objectives.  But some elements of the proposed reform may be worth thinking about, such as restrictions on the issuance of injunctions by single members of the Court.  Too often these injunctions have been seen as high-handed and lacking in the legitimacy that decisions by the full Court carry.

Will tensions over security spoil the Obama-Peña Nieto Summit?

By Tom Long

Military in D.F. Photo credit: ·júbilo·haku· / Foter.com / CC BY-NC-ND

Military in D.F. Photo credit: ·júbilo·haku· / Foter.com / CC BY-NC-ND

The meeting in December between recently re-elected President Barack Obama and President-elect Enrique Peña Nieto was marked by cordiality and a desire to talk about anything but the often grisly drug-related violence in Mexico during the previous six years.  Since then, Peña Nieto has continued the changed emphasis, aided by headlines pivoting to positive stories.  Mexico has been recently hailed for its economic growth, particularly in export-oriented manufacturing, and for a series of political compromises that The Washington Post favorably compared with the U.S. Congressional stalemate.  Despite optimistic claims from the government, Mexican media reports indicate that drug-related violence continues at nearly the same pace as last year.  (Click here for a summary and analysis by our colleagues at InSight Crime.)  Moreover, pressure is growing on questions of human rights violations committed in the name of the war on drugs.  When Presidents Peña Nieto and Obama meet again in early May, holding back a renewed focus on security is likely to be a challenge.

Peña Nieto’s political incentives do not point to the same, high-profile cooperation with the United States that occurred under President Felipe Calderón, who had already begun shifting priorities last year.  Despite the major turnaround signified by the PRI’s signing NAFTA almost 20 years ago, Peña Nieto’s PRI still contains elements more skeptical of U.S. “intervention” than Calderón’s PAN.  Materially, moreover, most of the U.S. aid planned under the Mérida Initiative has been disbursed, and Congress exhibits little appetite for major new appropriations.  (Even at its height, U.S. spending was a fraction of Mexico’s contribution to the drug war.)  That reduction, coupled with growing awareness that the Calderón strategy actually fueled violence, diminishes the enthusiasm in and outside of government for continuing his policies.   Frustration from the left in both countries regarding persisting human rights violations and the slow pace of judicial reform could also grow more serious.

While these problems may be causing tensions between U.S. and Mexican police and military at the operational level, they seem to be manageable so far – and both Presidents are likely to emphasize intelligence-sharing and similar bilateral cooperation that does not require resources.  Upper echelons of the Obama administration seem to understand that Peña Nieto’s push to de-emphasize security and promise to focus on violence reduction over drug interdiction is politically necessary.  But the moral argument has not changed:  Mexicans suffer the violent consequences spawned by U.S. drug use and counterdrug policies.  Weapons sold on the U.S. side of the border continue to flow into Mexico, an issue now atop the U.S. political agenda for entirely domestic reasons.  If the two countries can manage to keep security problems at a lower decibel, they will better cooperate on issues that are just as vital but could pay larger dividends — immigration, transboundary energy, educational exchange, and infrastructure.