Transition To Democracy In Latin America

The Role Of The Judiciary

Irwin P Stotzky

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000009880
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The transition to democracy in Latin America encompasses adjustments in norms and institutions regarding the strictures of the rule of law. This book addresses the critical role of the judiciary in the transition. The contributors examine the significance of the independence of the judiciary, which ensures institutional integrity and freedom from p

Part One
Introduction

1
The Difficulties of the Transition Process

Irwin P. Stotzky and Carlos S. Nino

In the past decade, many Latin American nations have been involved in a remarkable political experiment. The historically ubiquitous authoritarian regimes, usually in the form of military juntas and dictators, have gradually been replaced by constitutional democracies.¹ This process -- usually referred to as the transition from authoritarianism to democracy -- is, however, far from complete.

Economic, political, and social stability has not yet been secured. Corporatist political and social structures have not yet been transformed to allow for a more equitable distribution of goods and services so that the neediest members of society gain access to the basic necessities required for a life of dignity. Institutional structures must be developed and stabilized. The rule of law has to be consolidated and become a basic, accepted requirement of government practice and daily life.

These issues are more complicated than they first appear. Although these issues may be theoretically severable, they are also inextricably intertwined. The rule of law, for example, must be consolidated not only to protect human rights, but also to help secure a satisfactory level of economic, political, and social development. Moreover, virtually no Latin American nation remains free from these problems. Indeed, even in the nations that claim to have been the most successful in making this transition, problems abound.

One of the best examples of the promises and pitfalls of such an undertaking in Latin America is Argentina. The 1983 election of Raúl Alfonsí, the leader of the Radical Party, came after one of the bleakest periods in Argentine history. From 1976 until 1983, a series of military juntas ruled Argentina.² They conducted a "dirty war" against leftist terrorism resulting in the disappearances of anywhere between 7,000 and 30,000 mostly innocent people,³ started and lost a war with Great Britain over the Falkland/Malvinas Islands,⁴ and left the country almost bankrupt with a staggering 45 billion dollar debt.⁵

The political, social, and economic developments in Argentina and other developing Latin American democracies, such as Chile, have been widely discussed.⁶ The question of the role of the judicial power in strengthening a democratic system of government has not, however, been as openly debated. Indeed, the Alfonsín and Menem Administrations present a unique opportunity to study the transition process from a military government to two successive civilian governments, something that has not happened in Argentina in more than sixty years. Moreover, what this peaceful transfer of power represents both in terms of the consolidation of human rights values and more generally in the consolidation of democracy, and what role the judiciary has played and could conceivably play in this process, has yet to be analyzed. Further, Argentina under Alfonsín and Menem is a valuable case study of the relationship between economic instability and the ability of a society to guarantee protection for human rights. Analysis of the developments in Argentina and other Latin American nations should, therefore, prove helpful in understanding the role of the judiciary in the development of democracies worldwide.

The role of the judiciary in the transition process is, of course, extremely complicated. One major complication is the fact that the institutional structures necessary for a viable democracy remain in varying stages of development. The transition to democracy in Latin America is usually represented in one of two distinct stages. In one stage of development, a country is attempting to adjust norms or institutions towards the strictures of the democratic rule of law. Stated otherwise, the institutional structures associated with a democratic government, such as an independent judiciary or competition between different political parties, must be developed. In the other stage of development, the democratic institutional structures exist in a developed form, but their stability is not completely secured. Social tensions and conflicts sometimes coercively interfere with the institutional structures. Indeed, this transition from dictatorship to democracy is a fragile and uncertain process, and it has met with varying degrees of success. There are many extremely difficult choices to be made in a society that desires to be free and none of them are easy.⁷ The wrong choices can often prove fatal to the democracy and thus lead to serious deprivations of human rights.

One of the most difficult choices facing these budding democracies is whether military and police officials should be prosecuted for human rights abuses they committed during the years of dictatorship or whether a blanket amnesty should be declared. Putting human rights violators on trial is, of course, extremely important to the development of institutional structures -- such as an independent judiciary -- which the people respect and whose opinions they accept as valid. Nevertheless, serious problems arise no matter which choice is made about such prosecutions. In Argentina, for example, the decision to prosecute these government sponsored criminals led to several military mutinies during the last years of President Raul Alfonsín's term (1987-1989)⁸ and during the early years of President Carlos Menem's term (1989-1990).⁹ Brazil, which chose to forget these atrocities, has kept its enlisted soldiers out of the streets and in the barracks, but the top military officials continue to control many of the major governmental decisions.¹⁰ More recently, the military coup leaders in Haiti continue to bar the first democratically elected Haitian President in 200 years, Jean-Bertrand Aristide, from returning to Haiti unless he agrees to a general amnesty for these murderous military officials. But even that act may not be sufficient to guarantee his return.¹¹

Even with these problems, however, Latin America continues to move steadily away from dictatorship to democracy. In 1989, voters in Paraguay elected a new president, only three months after the overthrow of one of the most infamous dictators, General Alfredo Stroessner.¹² In December, 1989, Chileans selected a new president to replace General Augusto Pinochet.¹³ Other Latin American nations have embarked on a path of economic and social stabilization. Nevertheless, the military shadow always remains in the background. Civilian rulers continue to be disturbingly weak when confronted by democracy's inherently difficult choices.¹⁴ To put it another way, there is a fine line separating democracy and oppression.

If civilian democratic government is less than effective in Latin America, who should be blamed? Much of the fault lies with unprincipled military officials who quietly left office instead of facing up to the economic, political, and social disasters they created. Moreover, they stepped aside without any intention of surrendering real power or living within the demands of a constitutional government. Many, but not all of these military officials, stubbornly refuse to adhere to the rule of law while insidiously working for the collapse of civilian rule so that they may return to power.

The new civilian leaders must also accept some of the blame. They either made no real attempt to restrain their armed forces and educate them to become responsible members of their nations, or were simply ineffective in attempting to do so. In Brazil, for example, the government simply made no serious attempt to control the military. By contrast, in Argentina, the government first made a strong effort to prosecute the military, but finally had to come to terms with the reality that full prosecution of commanders and torturers was not possible without causing a military uprising which might conceivably overthrow the democratically elected government.

The newly re-enfranchised citizens of Latin America are also at fault. They have too quickly grown impatient with their democratically elected leaders. For example, many citizens unjustly blame their leaders for economic crises inherited from the dictators. They expect quick and painless solutions to almost insoluble problems.

The more developed Western nations cannot escape a great deal of the responsibility for the precarious state of these fledgling democracies. Western nations, while claiming to be models for these democracies, hold the major portion of Latin America's multi-billion dollar foreign debt. They often push these new democracies into economic chaos by refusing to extend loans or by demanding interest payments during critical moments in the history of these societies. These actions, of course, leave the democracies exposed to the distinct possibility of a return to military dictatorships.

Moreover, Western banks must also accept much of the blame for the precariousness of these democracies. While many of these nations are trying to lure the flight capital back to their countries, some of the world's leading financial institutions are aggressively working to hang on to the money. Citibank, for example, which in 1989 had 7.7 billion dollars outstanding in Latin American loans, also held approximately 20 billion dollars of private Latin American deposits.¹⁵ Thus, it appears that some of the major banks are attempting to cover possible losses on their third world loans by soliciting private Latin American wealth. By helping to remove the private capital from these countries, however, the banks make it extremely difficult for Latin American nations to build up their economies, a prerequisite to the repayment of the debts.

The problem runs even deeper. It is clear that many Latin Americans have not internalized the significance and legitimacy of a constitutional system based on the rule of law. Moreover, the Latin American culture appears to be strongly resistant to the internalization of universal standards of achievement and competition necessary to an equitably functioning democracy. Rather, Latin Americans appear to have internalized a belief in the overpowering importance of status and connections, thus crippling the transition to a constitutional democracy. It is a sobering thought that the problems associated with any transition to democracy may be intractable. Is it possible to instill the belief in people -- struggling for their very existence -- that the moral bases of a democracy must be adhered to for their, and their children's, lives to improve?

The democratization process needs further elucidation if we are to begin to answer this question. The issue is further complicated by the fact that the concept of transition to democracy has unclear and shifting boundaries. Indeed, the very question of whether certain Latin American and European nations remain in the transition towards democracy or have already completed the journey is one which requires both empirical corroboration and conceptual clarification.

One possibility is to declare the transition complete when democracy seems to be sufficiently consolidated. Setting aside the complex question of which democracy has been consolidated, which we believe depends implicitly upon justificatory conceptions of democracy, the concept of consolidation presents difficult problems of its own. The idea of consolidation is intimately connected with the stability of a given political system, and ii is plausible to argue that the latter is itself an arrangement -- a dispositional property -- which in turn depends upon certain predictions.

Yet predictions about any political process, and particularly those in Latin America, are problematic at best. We thus do not intend to make such predictions. We do, however, wish to discuss briefly some of the most prominent features of the present consolidation process taking place in the Southern part of Latin America. These features are useful in formulating those predictions on which the claim that the transition to democracy has or has not been completed depends.

The first significant feature of the consolidation is the fact that the process of democratization has taken place in most of those countries -- with perhaps the exception of Chile -- during one of the worst economic and social crises in the history of these nations. In general, this crisis manifested itself in enormous external debts, hyperinflation, the collapse of systems of social welfare, huge rates of unemployment, increases in infant mortality, epidemics, and a variety of other social catastroph...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• PART ONE Introduction
• PART TWO Various Roles of the Judiciary in the Transition to a Democratic Society
• PART THREE The Independence of the Judiciary
• PART FOUR The Judicial Process: Trial
• PART FIVE The Role of the Prosecutor
• PART SIX Judicial Review and Remedies
• PART SEVEN Conclusion
• About the Contributors
• About the Book and Editor