Prof. Aníbal Pérez-Liñán**
The political attack on justice is a central moment in the processes of democratic erosion. When we look at the cases of autocratization in Latin America and the European Union we find that the capture of justice (especially the capture of constitutional courts) is the decisive, and often irreversible, moment in the slide towards authoritarian rule. Many people today are asking why the capture of the judiciary has become so important to authoritarian leaders, and what we can do in the face of this challenge. To explore these questions, I propose three ideas:
The first is that the relationship between authoritarianism and the rule of law is not linear. Political science has had to confront this ambiguity throughout its intellectual history.
However-and this is my second point-the phenomenon we are currently experiencing, this reversion of some democracies to an authoritarian system requires as a precondition the capture of the judiciary by the executive branch. The key instrument of this capture is the purge of the high courts.
My third point is that, in the face of this threat, there are two protection mechanisms for justice. The first is what I call reciprocal protection. Paradoxical as it may seem, political parties are the main protection for judicial independence. The second mechanism is what I call collective protection; it involves an increasingly important role for regional courts and international solidarity.
As a starting point, I would like to briefly explore the relationship between forms of authoritarianism and the rule of law. This relationship is not linear and has been confounding political science for decades.
After World War II, political science focused on the distinction between totalitarian and authoritarian regimes. It has always been clear that an independent judiciary has no place in a totalitarian system such as Soviet Stalinism or Nazi Germany. But authoritarian regimes, such as the Spanish Franco regime, often allow for “limited pluralism”. An example of this ambiguity: in the 1970s, José Toharia pointed out that the Franco regime allowed judges to act independently but restricted their power so that they could not act in politically sensitive cases.
Two decades ago, political science elaborated the concept of rule by law (in contrast to the idea of rule of law) to emphasize that many authoritarian regimes develop an effective legal framework as an instrument of government.That legal framework may impose certain restrictions on the state, but it does not guarantee the rights of the citizenry.
Finally, at the beginning of this century, the study of authoritarianism began to focus on the problem of hybrid regimes. It is worth pausing here. In the past, authoritarian regimes presented themselves as an alternative to liberal democracy. Today, in the 21st century, on the other hand, authoritarian regimes seek to mimic democratic forms. They hold elections in which the opposition can participate, but create legal procedures, and use public resources -sometimes subtly- to prevent any form of effective opposition. These forms of competitive authoritarianism or electoral authoritarianism generally emerge as a consequence of the erosion of existing democratic regimes. The process of erosion creates illiberal regimes, which use the legal framework of democracy to progressively dismantle the civil and political rights of the citizenry.
The very nature of these illiberal regimes often makes it difficult to establish at what point the regime crosses the boundary between its democratic origins and its authoritarian ambitions. But the phenomenon is common throughout the world and makes no ideological distinction. We can think of Venezuela under Hugo Chavez and Nicaragua under Daniel Ortega, but also Hungary under Viktor Orban, Poland under the Law and Justice Party, Turkey under Recep Erdogan, and India under Narendra Modi. Some colleagues in political science argue that we are witnessing a global wave of autocratization.
The contemporary problem of democratic erosion leads to the second theme of my presentation: how can we think about the relationship between authoritarianism and the rule of law in this new context of electoral authoritarianism? My hypothesis is that illiberal regimes have as a priority to control the judiciary, because only by doing so it is possible for them to consolidate an authoritarian electoral model.
To explore this hypothesis, a brief digression into what political science traditionally refers to as “insurance theory” is in order. About three decades ago, political scientists began to ask why some democracies exhibit greater degrees of judicial independence than others. Why, for example, do political parties control the careers of judges more in Japan than in the United States? The answer to this question, the literature proposed, lies in the level of partisan competition. In democracies with high degrees of political competition, parties respect the independence of the judiciary because they know that, sooner or later, they will lose power. And the independent judiciary will protect their rights when that time comes. This theory, then, conceives the rule of law as a kind of “insurance” that politicians pay to cover themselves against the risk of losing elections. The greater that risk, i.e., the greater the partisan competition, the greater the incentive to insure the rule of law.
This idea of insurance is very interesting, but it is challenged by the experience of weak democracies. In a study of 97 democracies, Turkish political scientist Aylin Aydin showed that, in consolidated democracies, greater party competition does indeed coincide with greater judicial independence. However, in weaker democracies, greater electoral competition reduces judicial independence. How can we reconcile this negative relationship with insurance theory?
Aydin’s study reflects a fundamental problem: in illiberal regimes that have not yet consolidated as authoritarianisms, and in which the government still faces effective electoral competition, the government needs to capture the judiciary, especially the constitutional courts. This capture is necessary in order to be able to restrict electoral competition.
The mechanisms used to purge the high courts are diverse: sometimes a constitutional reform is employed; sometimes an impeachment trial is held against the judges; sometimes a legal reform is adopted to expand the size of the court, cut its attributions, or change the mandatory retirement age. But the underlying process is always similar: illiberal regimes use their electoral and legislative capital to capture the Constitutional Court and the ordinary justice system, and later use this control of constitutional interpretation to weaken electoral competition.
The particular mechanisms may differ, but examples from around the world have remarkable overlaps. In Hungary, where the Fidesz party won a parliamentary super-majority in 2010, the Parliament overturned all jurisprudence issued by the Constitutional Court over two decades, and used a constitutional reform to subdue the Court. In Poland, the Law and Justice Party won barely a simple majority in the 2015 elections, and thus took longer to capture the Constitutional Court. But by the end of 2017, it had control of the Court, and was able to advance on the ordinary judiciary.
Latin America has many examples of this type. The most recent, of course, is the case of El Salvador. At the end of last February, President Nayib Bukele’s party captured two-thirds of the seats in the legislative assembly. It took just two months for this majority to capture the constitutional justice. Last May 1, the assembly dismissed the magistrates of the Constitutional Chamber and the Attorney General of the Republic. President Bukele’s party is called Nuevas Ideas, but the idea of purging the high courts is not new in Latin America. In fact, the levels of instability in the Supreme Courts and Constitutional Courts in the region have historically been very high.
This graph is the result of research we have been conducting jointly with Andrea Castagnola from Argentina. It shows, simply, the percentage of judges who left each Supreme Court or Constitutional Court in Latin America between 1925 and 2014.
Cases of democratic erosion such as Hungary, Poland, Venezuela, and other examples from Latin America suggest a key lesson: once the ruling party controls a qualified majority in the legislature and the constitutional court, democracy is potentially at risk. This situation does not necessarily lead to the end of democracy, but it increases the risk of democratic breakdown significantly.
This leads me to the final argument of this presentation. Illiberal governments use their legislative majorities to control the judiciary, and then use favorable constitutional interpretation to secure an advantage in partisan competition.
This fact highlights a historical phenomenon that often goes unnoticed. The form of government we know as “democracy” in the 21st century is founded on two distinctively modern institutions, shaped in the 19th century: political parties, and judicial review. And it is precisely these two institutions that protect democracy by protecting each other.
Let us call this the principle of reciprocal protection. On the one hand, the presence of an independent judiciary protects the rule of law and guarantees the conditions of freedom of expression and electoral competition that ensure free and competitive elections. This allows opposition forces to maintain spaces in the legislative branch and in the oversight agencies.
On the other hand, the presence of a relatively strong opposition makes it difficult for the ruling party to conduct a purge of the judiciary. In this way, party pluralism and an independent judiciary are mutually reinforcing.
There are many historical examples of this phenomenon, but I will cite a current one: President Jair Bolsonaro has serious confrontations with Brazil’s Supreme Federal Court, but the political fragmentation of the Brazilian Congress prevents him from forming a majority that can effectively attack the high court.
There are circumstances, of course, in which voters surrender too much power to the governing party. And this often has irreversible consequences. Historical experience teaches us that politicians who receive a blank check always end up overdrawing against the popular vote.
When partisan opposition is so weak that the mechanism of reciprocal protection is insufficient, there is a last resort, which I call collective protection. I refer here to the role of regional courts, and that of the international legal community, as a source of resistance to attacks on the judiciary at the domestic level.
In the Hungarian and Polish cases, the European Court of Justice played a central role in defending the judiciary, holding, for example, that mechanisms to force judges into retirement violated principles of age discrimination in Hungary, or principles of gender equality in Poland. The European Court of Human Rights also ruled against Hungary in the Baka case, stating that the purge of the president of the Supreme Court violated the right to freedom of expression.
Similarly, the Inter-American Court of Human Rights has defended judges against arbitrary dismissals in cases such as Constitutional Tribunal v. Peru, Reverón Trujillo v. Venezuela, López Lone et al. v. Honduras, or Colindres Schonenberg v. El Salvador.
From a “realist” perspective of international relations, it seems easy to conclude that collective protection mechanisms are ineffective. On the one hand, it is true that the European Union and the Organization of American States have been unable to reverse the processes of democratic erosion or to restore the independence of the judiciary in the cases concerned. But, on the other hand, these international legal actions deny the ruling party the illusion of democratic legitimacy it needs to justify its attack on justice. They generate an international consensus that challenges the official narrative and create the conditions for redressing these violations in the future.
What I want to emphasize, in closing my presentation, is that collective protection mechanisms require strong international courts, which have a fluid and effective dialogue with national courts. The Court of Justice of the European Union claims authority to defend judicial independence because European national courts are dual institutions, applying national law but also European law. The Inter-American Court of Human Rights, through the doctrine of conventionality control, assigns a similar role to national courts, which it considers responsible for applying the American Convention on Human Rights.
The construction of these mechanisms of collective protection thus requires a process, the formation of a transnational juridical consensus and judicial solidarity, which are developed long before it is necessary to respond to an attack on democracy. For, as the German sociologist Max Weber said: “politics is like the slow boring of hard boards, done with a combination of passion and perspective. Historical experience confirms that people would not have attained the possible unless time and again had reached out for the impossible.”
* Paper presented at the event of the same name, held on May 18, 2021, and organized by the Guatemalan Association of Judges for Integrity, the International Platform against Impunity, Center for Justice and International Law, the ACTuando Juntas-Jotay Program, the Association of New Judges of Germany (Neue Richtervereinigung), and the Due Process of Law Foundation.
** Professor of Political Science and Global Affairs at the University of Notre Dame