Latin America: Total Chaos?

By Carlos Malamud*

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South American Presidents waving to the cameras in Santiago, Chile / Flickr / Creative Commons

Democracy and democratic values are in crisis throughout South and Central America, but the causes – and solutions – vary across the region, with rays of hope that at least some countries will find their way forward. The Bolivian elections, plagued by suspicions of fraud, reflect some of the problems that affect all of Latin America. The previously unbeaten President Evo Morales, in government since 2006, has now shown his limits and, even if his election is confirmed, will govern without the parliamentary majorities he enjoyed in the past.

  • Latin America witnessed violent protests almost simultaneously in Ecuador and Chile; Mexico blinked during a confrontation with the son of narcotics kingpin Chapo Guzmán; the Congress was dissolved in Peru; an ex-President in the Dominican Republic denounced as fraudulent the primary election he lost and joined another party to be its candidate; and a massive exodus continued pouring out of Venezuela, whose crisis is terminal but without an expiration date.
  • The Argentine and Uruguayan elections on October 27 marked the end of a three-year cycle of elections during which 14 countries voted to elect or re-elect their presidents. Speculation was originally that a swing to the right would counteract the Bolivarianism of the previous swing to the left. That shift never happened. In its place, a more heterogeneous and divided Latin America emerged, reflected in the outcome of the Argentine and Uruguayan elections, and in the not-insignificant fact that Mexico is governed by Andrés Manuel López Obrador while Brazil, the other regional power, has Jair Bolsonaro.

The causes of this wave of divisiveness are the subject of different theories. Many observers speak of a Castro-Chavista conspiracy, orchestrated by Venezuelan President Nicolás Maduro and the leftist São Paulo Forum. Others think it’s a popular reaction to the drastic adjustment programs of the IMF. Yet others argue about a contagion factor and the impact of social networks, which enable real-time communication and the transfer of vivid images of events. Nonetheless, any theory that tries to harness all of these theories will be flawed because each national reality is responding to different logic and dynamics.

  • All of the countries of the region are experiencing inequality, poverty, corruption, violence and narco-trafficking, unhappiness with democracy and its institutions, rejection of politicians, and the impact of the “new politics” of social media and fake news. But they are not present to the same proportions.
  • Neoliberal, Bolivarian, and populist governments are all suffering from rebellions. The Chilean protests over transportation fees under neoliberal President Piñera were preceded by protests in Brazil in 2013 under progressive President Dilma Rousseff. If Piñera resorts to military force to stop the protests, Nicaraguan President Daniel Ortega did something similar in 2018, killing more than 300. The IMF might have been behind the reduction of fuel subsidies in Ecuador, but it had no role in Chile. While elections went as normal in Argentina and Uruguay, in Bolivia, like in Venezuela, the allegations of fraud have been constant.

The solutions to each country’s challenges will have to be as different as their causes. While one country needs deeper economic adjustment, another needs to fix its political institutions. Each is going to have to find its way through the crises. Latin America will find little solace, moreover, in the fact that this high level of conflict is not exclusive to its region. From Hong Kong to Cataluña, or in Libya and Lebanon, similar challenges are disrupting national life.

  • Amid the many indications that representative or liberal democracy is under direct attack – that we may be facing the end of an era with potentially dire implications – some positive notes are visible in Latin America. In addition to the orderly contests in Argentina and Uruguay, the local and regional elections in Colombia in late October were an effective exercise in democracy – won by the center and lost by the extremes. Uribismo on the right and Gustavo Petro on the left were the big losers. The emerging symbol was Claudia López, the first woman elected mayor of Bogotá, who is also a lesbian, environmentalist, and leader against corruption. The path ahead is certainly not going to be easy for Latin America, but there is evidence that, with a big dose of tolerance and respect for each other’s reality, Latin Americans can do a lot better.

November 5, 2019

* Carlos Malamud is Senior Analyst for Latin America at the Elcano Royal Institute and Professor of Latin American History at the Universidad Nacional de Educación a Distancia (UNED), Madrid. A version of this article originally was published as Turbulencias latinoamericanas in El Clarín of Buenos Aires.

 

Ecuador: President Moreno’s Pyrrhic Victory

By John Polga-Hecimovich*

President Lenín Moreno greets an indigenous leader on September 12, 2019.

President Lenín Moreno greets an indigenous leader on September 12, 2019/ Asemblea Nacional del Ecuador/ Flickr/ Creative Commons

Ecuadorean President Lenín Moreno’s agreement with opponents to rescind the austerity measures that sparked the recent crisis has restored calm but leaves his government irreparably weakened. The immediate trigger of the crisis was the president’s announcement on October 1 of a package of austerity measures aimed at reducing the fiscal deficit as part of his government’s $4.2 billion credit agreement with the International Monetary Fund. The key measure was elimination of a $1.3 billion gasoline subsidy expected to result in a 25-75 percent increase in the price of gasoline. Transport unions, student groups, and thousands of members of the country’s largest indigenous organization, the Confederación de Nacionalidades Indígenas del Ecuador (CONAIE), took to the streets, paralyzing roads around the country and demanding Moreno step down.

  • Moreno declared a 60-day state of siege, temporarily suspended the right to freedom of association; and on October 7, flanked by the military high command, said he would not back down against what he called a “destabilization plan” orchestrated by his predecessor, Rafael Correa, and Venezuelan President Nicolás Maduro. Perhaps cognizant that a combination of social pressure and legislative and military action removed all three of Ecuador’s democratically elected presidents from 1996 to 2006, Moreno temporarily moved the seat of government from Quito to Guayaquil and imposed a curfew in Quito.
  • CONAIE President Jaime Vargas and other indigenous leaders, encouraged by the United Nations and the Catholic Church, agreed to direct negotiations on October 12. Two days later, the president signed a decree rescinding the austerity measures and reinstating fuel subsidies, and CONAIE decamped. Moreno removed the head of the military Joint Command and the commander of the army, and on October 15 returned to Quito. (He has so far resisted calls to replace Interior Minister María Paula Romo, a possible 2021 presidential aspirant, and Defense Minister Oswaldo Jarrín.)

The crisis has deeply altered prospects for the Moreno presidency.

  • Moreno survived a degree of social protest and political resistance that toppled previous presidents, but he failed to anticipate the popular reaction to lifting energy subsidies, employed a heavy-handed response to protestors, and ultimately backed away from one of the few significant political decisions his government has made. As a result, Moreno lost an opportunity to make structural economic changes and suffered irreparable damage to his political capital and credibility.
  • Indigenous groups and a resurgent CONAIE – after largely disappearing from national political decision-making under Correa – are once again a key national political actor and informal public policy veto player. They not only forced Moreno and the government to reverse course on energy subsidies, but also literally and figuratively earned a seat at the negotiating table. CONAIE appears more unified than it has been at any moment since the early 2000s and may be emboldened to seek further concessions from the government.
  • Correísmo may well be the biggest political loser. Moreno remains in power despite calls from ex-President Correa and his Revolución Ciudadana party to debate the possibility of impeachment and early elections. Correístas were excluded from discussions over the executive decree that restored the gas subsidies. Moreover, CONAIE tweeted a stinging rebuke of Correa, accusing him of opportunism and holding him responsible for the deaths of three indigenous leaders under his government.

Moreno is a lame duck just a little over halfway through his presidency. It is difficult to imagine any policymaking of consequence in his remaining 18 months in office. The government is severely handicapped politically and economically, and the political space for negotiation until elections is almost nonexistent. Moreno’s government is likely to resemble the interim governments of Fabián Alarcón (1997-1998) or Alfredo Palacio (2005-2007), which essentially served as placeholder administrations without ambitious policy agendas. Against all odds, Moreno – with a legislative minority – neutralized Correa and shifted government policy to the right during his first two-plus years in office, which throws his failure to remove the subsidy into sharper relief.

  • Economically, the picture is not much different. The protests forced Moreno to kick the can down the road on energy subsidies, while making it more difficult for the government to close its fiscal deficit. The weight of these necessary reforms will therefore fall to whoever wins the 2021 elections. The failed implementation of this economic reform and subsequent reversal of policy show the limits of Moreno’s political acumen while laying bare the country’s governability challenges.

October 17, 2019

*John Polga-Hecimovich is an Assistant Professor of Political Science at the U.S. Naval Academy. The views expressed in this article are solely those of the author and do not represent the views of or endorsement by the Naval Academy, the Department of the Navy, the Department of Defense, or the U.S. government.

 

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.

Mexico: Gambling That Austerity Will Be Enough

By Juan Carlos Moreno-Brid*

Mexico City's Paseo de La Reforma

Mexico City’s Paseo de La Reforma / Flickr / Creative Commons

While continuing to emphasize his goal of reversing neoliberalism in Mexico, President Andrés Manuel López Obrador (AMLO) is pursuing a budgetary policy with austerity – not much-needed fiscal reform – as his top priority, at least for 2019-20. In his inauguration speech last December, AMLO repeated campaign themes deriding the neoliberal policies implemented in Mexico since the mid-1980s, blaming them, as well as rampant corruption, for the country’s slow growth, rising inequality, and widespread poverty. Since then, however, the President’s speeches on economic policy and his Secretary of Finance’s main policy documents have stated that all public-sector operations will be subject to strict austerity.

  • They have indicated that 1) there will be no fiscal reform in the first three years of the administration; 2) fiscal revenue will not increase this or next year as a proportion of GDP; and 3) in this period, the public sector will not incur additional debt. In other words, the implementation of AMLO’s proposed social and economic programs will depend on the availability of public revenues subject to the strict constraint of no additional resources through public borrowing or any tax reform. The government has made sharp cuts to government personnel and wages and eliminated various public entities, including ones created to attract foreign investment and tourism.

At the same time, AMLO plans to change the composition of public expenditures significantly to accommodate his top-priority projects, among them Jóvenes Construyendo el Futuro (a massive transfer of $180 per capita for an ambitious, and, in many ways, welcome apprentice program for up to 2.3 million youngsters); Sembrando Vida (planting a million trees); Adultos Mayores; and investment to put in place a Maya Train, building from scratch a new crude oil refinery in Dos Bocas, and revamping an airport in Santa Lucía.

More in line with AMLO’s stated intention of overturning neoliberalism, what Mexico really needs is a profound fiscal reform – strengthening public revenues, modernizing public investment strategies, and strengthening its development banks – to foster growth and equality with long-term debt sustainability and greater countercyclical capacity. It is a paradox that the new government chose to commit itself to a severely austere budget, reflected in cuts in public expenditures and an increased primary fiscal surplus.

  • The decision to refrain from tax reform, coupled with drastic austerity, imposes acute limits on the new administration’s ability to strengthen and modernize infrastructure, reduce income inequality through fiscal tools, or strengthen its capacity to act in a countercyclical way – not to mention alleviate major lags in the socioeconomic conditions of the poor population. The IMF, OECD, World Bank, ECLAC, the Centro de Investigación Económica y Presupuestaria (CIEP), Grupo Nuevo Curso de Desarrollo (UNAM), and many local think tanks have systematically underlined that Mexico’s tax revenues as a proportion of GDP are extremely low. According to the estimates of UNAM, CIEP, and others, those revenues are at least six percentage points short of what is needed to meet long-standing needs in infrastructure, health, pensions, education, and overall social security and protection concerns. By reducing the bureaucratic apparatus and public-sector wages virtually across the board, the administration runs the risk of further weakening the state’s technical capabilities in some key areas of public policy and thus undermining its ability to correct course.
  • The underlying reasons for the new government’s commitment to austerity seem to be more political than economic. It has stated that a significant amount of resources can be freed up by abating the rampant corruption, and it apparently believes that before implementing fiscal reform, the government must prove to the citizens that it can deliver efficiently, effectively, and with honesty. Whether there will be sufficient achievements in terms of economic growth and inclusion and in eliminating impunity to convince the middle and upper classes to accept a progressive fiscal reform three years from now is an open question, but the answer will determine Mexico’s economic growth path and progress in the reduction of inequality, poverty, and corruption, and perhaps too its social stability and the viability of its democracy in the future.

April 16, 2019

*Juan Carlos Moreno-Brid is a professor of economics at the Universidad Nacional Autónoma de México (UNAM).

Cuba: Trump Actions Strengthening Hardliners

By Fulton Armstrong and William M. LeoGrande

Two buildings in a composite photo

On the left, the U.S. Embassy in Havana; on the right, the Cuban Embassy in D.C. / U.S. Government Accountability Office / Flickr / Creative Commons

As the end of Raúl Castro’s presidency approaches, Trump Administration actions halting, if not reversing, the process of normalizing relations with Cuba have tilted debate in Havana in favor of hardliners trying to keep the brakes on economic reform and on constructive relations with Washington.

  • In retaliation for alleged “sonic attacks” against U.S. diplomats in Havana, Secretary of State Rex Tillerson’s ordered departure of staff from the U.S. Embassy in Havana, the closure of the U.S. consulate, and the expulsion of Cuban consular and commercial staff in Washington –has put a chill on bilateral relations that ratifies Havana hardliners’ contention that Washington cannot be trusted. By halting the issuance of visas to Cubans in Havana, the Trump Administration will almost certainly violate the 1994 migration accord committing the United States to issue at least 20,000 immigrant visas to Cubans annually.  That would rupture the longstanding bipartisan consensus in Washington that bilateral cooperation on migration serves an important U.S. interest in safe and orderly migration.
  • The State Department’s unwillingness to share meaningful information on the U.S. diplomats’ mysterious symptoms – underscored by the Embassy’s refusal to use a hotline established for Cuba to investigate alleged attacks real-time – has frustrated pro-normalization Cubans, who face conservatives’ claims that Washington is cynically exploiting the incident to embarrass Cuba and return to a policy of hostility and regime change.
  • Other Trump measures reinforce Cuban conservatives’ efforts to limit the growth of the country’s nascent private sector, particularly entrepreneurs who profit from U.S. visitors and need easy travel to import inputs from the United States. A travel warning issued in conjunction with the withdrawal of U.S. diplomats is causing a sharp drop in U.S. travelers, and new regulations abolishing individual people-to-people educational travel are channeling people into large hotels, away from private bed and breakfast rentals.  A prohibition on doing business with companies and hotels allegedly linked to the Cuban military is not pushing new clients to cuentapropistas’ businesses but instead is discouraging travel and commerce in general.  Cuban reformers are further dispirited by the perception that Washington is shifting back to the erroneous view that it can promote regime collapse by tightening the economic screws on the government, thereby reinforcing a siege mentality among senior leaders and discouraging needed economic reforms as too risky in the current environment.
  • Trump’s actions have so closely dovetailed with the agenda of Cuban hardliners that some people speculate it was opponents of reform inside the Cuban government who perpetrated the mysterious “sonic attacks” to provoke a confrontation with Washington. But there is no evidence whatsoever in support of that theory, and for anyone to sabotage Raúl Castro’s opening to Washington – one of the signal achievements of his presidency – would be to commit political (if not literal) suicide.

Implementation of Raúl Castro’s road map for economic change, embodied in the 311 lineamientos approved in 2011 and the Conceptualización of Cuba’s socialist model approved by the Communist Party congress last year, had already slowed before Trump’s sanctions due to Cuban concerns about growing income inequality during a period of poor economic performance, uncertainty about energy imports, and perhaps the 86-year-old president’s own level of energy and state of mind after the passing of his two brothers (Ramón and Fidel both died in 2016).  Widely discussed political reforms, such as the Electoral Law and the Law on Associations, that were expected months ago have yet to be unveiled.  The Trump Administration’s efforts to expedite regime change by curtailing financial flows to the government and by promoting private sector growth at the expense of state enterprises make it easy for Cuban hardliners to rally support for slowing reforms.  Ever since he launched the reform process in 2011, Castro has insisted it would move ahead, “Without haste, but without pause.”  Lately, in part because of the Trump Administration’s actions, there’s a lot more “pause” than “haste.”

The election of First Vice President Miguel Díaz-Canel to succeed Raúl as president seems to be a foregone conclusion of the ongoing multi-tiered election process that culminates in February, but no one outside the two men’s inner circle seems to know how or when next steps on reforms will be sequenced.  Raúl’s focus has been on creating processes and institutions for governing after he steps down, rather than achieving particular results between now and the formalities confirming Díaz-Canel.  One thing that is near-certain, however, is that the successor’s legitimacy will be determined by performance, not his surname or soaring oratory.  Tackling the really big reforms that loom ahead, such as currency and exchange rate unification, will require political will from a relatively unified leadership.  Cuba has long been adept at dealing with U.S. sanctions and pressure, so Trump’s policies are more an irritant than a threat, but the effect they have in Havana is to slow the implementation of changes that would improve the standard of living of ordinary citizens and to reduce the willingness of Cuba’s leaders to engage with Washington in ways that would serve the interests of both countries.

 December 18, 2017

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.

Revitalization of the OAS: More than an act of Congress

By Carlos Portales*

OAS logoU.S. Congressional passage in late September of the “Organization of American States Revitalization and Reform Act of 2013” could either help revitalize the troubled body or contribute to its irrelevance. By directing the U.S. Secretary of State to develop and drive OAS reform options, the bill seeks to give much higher priority in the OAS and Summit of the Americas to promoting and consolidating democracy in the hemisphere – “with due respect for the principle of nonintervention” – while recognizing that “key OAS strengths” are also in strengthening peace and security, assisting and monitoring elections, and fostering economic growth. Reducing “mandates” – ongoing programs that tend to get institutionalized – is another priority. The new law also requires Secretary Kerry to devise a strategy for a new fee structure in which no member state would pay more than 50 percent of OAS’s assessed yearly fees. (The U.S. Library of Congress reports that the United States, the organization’s largest donor, contributed an estimated $67.5 million in fiscal year 2012 – nearly 43 percent of the total 2012 budget.)

The reforms parallel ideas presented by OAS Secretary General Insulza in his “Strategic Vision of the OAS” on December 2011 (updated in March 2013) striving for concentration on four main pillars: democracy and conflict resolution; human rights; development (in association with the Inter-American Development Bank); and security (mainly against drugs and organized crime). He also advocated limiting a single state contribution to 49 percent without reducing the OAS’s total budget. The Secretary General embraced similar reforms when the legislation was first introduced by then-Senator Kerry in the previous Congress.

Agreement that the OAS needs reform is nearly universal, but any strategic transformation will have to take into account important developments among the Latin American international organizations. The OAS handily accommodated the creation of subregional organizations such as SICA and CARICOM in the past.  But new bodies – such as UNASUR, CELAC and ALBA – have posed new challenges to the organization’s relevance and effectiveness. Differences among the organizations have emerged over trade, democracy (different value attributed to the independence of powers and to press freedom, as well as of handling of crises in Venezuela, Honduras, and Paraguay), security (withdrawal of five countries from the Inter-American Treaty of Reciprocal Assistance), the strategy against drugs, and relations with the United States.  The organizations have also created new arenas for leaders to meet, at times taxing governments’ ability to keep up. From 1990 to 2012 there have been 272 Latin American regional and subregional summits, including eight Summits of the Americas.  When Secretary Kerry delivers his plan, it will be difficult for him to strike a balance between bringing the OAS more in line with Washington priorities, as laid out in the legislation, and seeking a bigger tent that addresses some of the concerns that gave rise to the plethora of competing organizations.

*Carlos Portales is the Director of the Program on International Organizations, Law and Diplomacy at WCL, American University. He was Ambassador of Chile to the OAS between 1997 to 2000.”

Health Reforms in Latin America: Lessons for the U.S.?

Photo credit: World Bank Photo Collection / Foter / CC BY-NC-ND

Photo credit: World Bank Photo Collection / Foter / CC BY-NC-ND

While Washington struggles to implement modest health care reforms, a number of Latin American countries over the past decade have been changing their health systems in ways that may offer encouragement to advocates of progressive change in the United States.  Reforms in Brazil, Chile, Colombia, Mexico and others strive to provide universal care in circumstances that are, in some cases, much tougher than those facing proponents of Obamacare.  Some challenges and accomplishments include:

  • In Chile, after years of investment, about 73 percent of the population now uses the public health care system.  A Family Health Plan in Brazil, which accounts for US$2 billion of the US$3.5 billion of the government’s health budget each year, has contributed to expansion of health care participation to 70 percent of the population.  When Colombia passed a health care law in 1993, only 24 percent of its citizens had coverage; in 2007, it had reached 80 percent.  Mexico has gone from 40 percent in 2004 to about 70 percent.  (In the U.S., about 83 percent had access to health insurance as of 2010.)
  • Latin American elites, like their U.S. counterparts, have long resisted providing the resources needed to cover health care costs, either through workplace insurance or through paying taxes to support state provision of health services.  But Latin American experience shows that this reticence can be overcome.  Substantial taxes have been levied in recent years – such as a 7 percent health care tax in Chile – and, according to various databases, health-related spending has grown to almost 7 percent of GDP in Mexico, about 7 percent in Colombia, about 7.5 percent of GDP in Chile, and around 8 or 9 percent in Brazil.  (Health care spending accounts for about 18 percent of the U.S. GDP – about half from public spending.)

These Latin American governments have demonstrated that, Sí, se puede when it comes to reforming health care and challenging entrenched interests wary of change.  Spending is rising as a percentage of GDP, but expenditures remain a fraction of those in the U.S. – and the gap in quality of care is narrowing.  Latin Americans have expanded coverage at a time that access to good care in the United States remains a challenge for tens of millions of people.  The U.S. economy generates more than sufficient resources to guarantee health care for the entire population, but the Obama administration seems too weak to implement its tepid reforms on schedule – recently postponing an important mandate that large employers provide insurance coverage.  Health care providers in Latin America appear to be adapting to the new playing field, but their U.S. counterparts are lagging.  If Latin American leaders had advice for their U.S. counterparts on how to slay this dragon, it would probably involve taking note that reforms in the region invariably emerged from decisive leadership from the executive branch and, with the exception of Mexico, a willingness to increase tax burdens to expand coverage.  They would also note that, much like is evident in public opinion polling of Latino populations in the U.S., citizens of Latin American countries are overwhelmingly in favor of public guarantees of health services for all.

Obama and Peña Nieto: Turning the same page?

By Tom Long
CLALS doctoral research fellow

Official White House photo by Pete Souza | public domain

Official White House photo by Pete Souza | public domain

On Saturday, Mexico’s new president Enrique Peña Nieto took office and the country’s oldest party, the Partido Revolucionario Institucional, returned to power. After six years dominated by an exhausting and bloody war against drug cartels, Mexico seems ready to turn the page on outgoing President Felipe Calderón. During the last few months, Peña Nieto has tried to steer the attention of the world—and the United States—away from a disproportionate focus on drug violence. In a recent article published in The Economist, the new president downplayed drug cartels, focusing instead on plans for the economy and to “recover our leadership in Latin America.” Security was just one of thirteen proposals in his inaugural speech. In part, Calderón has given Peña Nieto a head start as he begins his term, leaving behind strong economic growth and a dip in violence. Although Calderón himself started the switch to a violence-reduction strategy, his name is likely to remain closely associated with the frontal military assault on the cartels launched at the beginning of his administration and recalibrated only in his final year; Peña Nieto is positioned to gain credit for a return to normalcy.

This desire to turn the page also marked Peña Nieto’s s pre-inaugural meeting with President Barack Obama. Both leaders seemed to be playing the same tune.  Mexico has become the front line in the war on drugs, and the U.S. has spent billions on military, police, and other projects lumped under a “Merida Initiative” label. After their meeting, Obama and Peña Nieto promised to expand the bilateral agenda to include an expansion of trade, cooperation on energy, and discussions of immigration that go beyond border fences. Obama spoke effusively of Mexico’s importance as a partner, while Peña Nieto said the two had a “shared vision” of how to create jobs in both countries. On the stage with Obama as elsewhere, Peña Nieto reiterated calls for the United States and Canada to build on NAFTA and further regional integration to improve competitiveness.

It would be a healthy change if the two presidents could restore balance between economic and security aspects of U.S.-Mexico relations. Image matters – and the deterioration of Mexico’s brand has undermined both investment and tourism. The military approach to drug trafficking has inflicted enormous costs in economic and human terms with questionable payoffs, but Mexico cannot go back to old patterns of accommodation. Domestically, the new president needs to attack the culture of impunity by building a stronger and more independent judiciary in order to reduce the frightful percentages of crimes that are never investigated or prosecuted. Accountability remains weak, especially at state and local levels; improving it would require Peña Nieto to take on powers in his own party. Placing all these objectives under a “Merida plus” framework would counterproductively squeeze broad reforms into the drug-war box. If the two presidents are sincere about rebuilding a balanced partnership, they need to take action quickly on immigration and commerce. Otherwise, the gravitational pull of the war of drugs will again consume bilateral ties.