Opinion Sur
The slow erosion of the constitutional rule of law has found its highest point in lawfare, capable of twisting the electoral will of the citizenry. It is no coincidence that criminalization and persecution, which often end in forced exile, have leftist referents as exclusive victims. Zelaya in Honduras, exiled in Costa Rica; Evo Morales, exiled in Argentina; Correa, exiled in Belgium; Lula, arbitrarily imprisoned in his country to favor the far right (Bolsonaro appointed a judge as Minister of Justice who imprisoned the current president without evidence but “without doubts”), the eight inquiries for Cristina Kirchner on the same day, or the irregular dismissal of Professor Castillo in Peru, the first rural president in the history of that country, today in the hands of a regime that is disapproved, according to a recent report, by more than 90% of Peruvians.
However, it is not enough to mention or denounce a phenomenon. It must be studied and its scope measured, to promote measures that counteract this process. It is no coincidence that the judiciary limits popular advances with any argument, only apparently “republican”. The president of Mexico, López Obrador, is not wrong when he promotes a profound reform of the Judiciary. All our countries have seen how the judiciary acts as battering rams of conservative power to inhibit any progress. In Mexico, they have prevented many reforms. This frustration with “justice” may also explain the tide of votes to support Morena, one of whose campaign proposals was, precisely, to reform the Judiciary. Scheinbaum is not wrong. Her proposal is not an accident.
An aspect that has slowly settled in the citizenry, and that explains a little where we have come to end, is the growing contempt for the so-called penal “guarantees”. “Guarantees” can never be, in a democracy, a “bad word”. On the contrary. (They do not express an ideology but a principle). However, they have become just that. Guarantees in the media represent a disvalue. Guarantees – especially due criminal process of law – are, however, an inherent part of equality before the law.
Not everyone is equal in front of judges. The advance of pretrial detention without evidence is a scourge that has spread throughout the continent, increasing arbitrariness in processes, eating away at the constitutional state. The inter-American system has not yet pronounced itself forcefully on the matter, beyond an observation of Mexico’s prisons (in the ruling on tobacconists). Basic principles of modern law are today being challenged by punitive practices that are incompatible with democracy. They are remnants of undemocratic processes, which are still maintained in times of “democracy.” South America’s criminal policy still has a long way to go. The principles that we teach in the university seem to be inverted today: presumption of innocence, not reversing the burden of proof, principle of harmfulness, proportionality, strict respect for the defense, preventive detention for few and very exceptional cases, and not as it is happening now, which is the “normal” and massive practice: anticipated punishment. What was for modernity the “ultima ratio”, today is the first way out. What a setback.
The erosion of guarantees has been installed so much that today we end up taking a leap into the void. Instead of replacing what was dismantled and was essential in a republic, they end up asking for more, almost the final blow against the republic: they ask judges to “imprison” and lock up without evidence, for indefinite periods, lowering the age of criminal responsibility for minors even more. Bukele is presented as a “model” to follow. Lawyers are persecuted. They are normalized in all our countries, or in many, states of permanent “emergency,” with presidents legislating and subrogating to Congress. Criminal “decoding” expands. This erosion of the guarantees of due criminal process, which for decades has affected the most disadvantaged sectors (in practice, being poor always means having fewer rights, as Julio Maier, who wanted to burn his law degree, said), also extended to political leaders who have popular support from the most deprived sectors: Lula, Cristina, Evo, Correa, Castillo, Petro could join in Colombia. Arévalo in Guatemala was close to the prosecution not letting him assume his position. It was Petro’s pressure that solved that political crisis (“I will not leave Guatemala until President Arévalo takes office”).
This shows us that a false discourse has been installed in our democratic societies: the idea that the judge who complies with constitutional and procedural guarantees “is not a good judge”, that the judge who respects the Constitution with its written guarantees, is a “guarantist”, as a synonym for doing something wrong. Finally, contrary to positive law (whose protection is the mandate of every magistrate) the idea is assumed that the “guarantee” judge is a judge who is not impartial, nor independent, or is very “politicized”. (Lenia Batres is criticized in Mexico with this argument) When it is exactly the opposite: it is the judges who massively imprison poor people without evidence, who skipping the Constitution, (that is, the principle of legality), openly “politicize” their task, depending on what the mainstream media dictate (or request). (Some call this phenomenon of procedural erosion “precautionary criminology”). It is necessary to disarm and expose this paradox, in order to rebuild judicial independence. The guarantor judge, the one who defends criminal procedural guarantees, is the most “independent” judge of all, he is the “least politicized” judge, because by applying constitutional guarantees, he applies positive law. It is not arbitrary. Curiously, in the mass media of many countries the opposite idea predominates, which is, however, a false, unconstitutional idea. And contrary to the international pacts and treaties to which our States subscribed.
When a judge wants to act in an impartial, non-corporate manner, he will be reviled in the media…! for respecting and enforcing the Constitution! Judges are afraid of being independent: they fear the media chastisement and how this could condition or limit their “career”. Moro “ascended” as a judge doing politics from the courts. Not enforcing the Law.
One of the great tasks of progressivism, if not the main one, is the reform of the Judiciary. We need a seriously impartial Judiciary, which asserts with resolution and courage the guarantees of those who are born and live in misery, as if their constitutional rights and guarantees of form and substance did not count or were only made of paper. Today we don’t have it.
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(*) Wilfredo Chávez Serrano, former Attorney General of the Plurinational State of Bolivia. Guido Croxatto, lawyer.
Published in OtherNews 7 June 2024 (and before that in Página 12)
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