The Rule of Law in Latin America: From Constitutionalism to Political Uncertainty

Compared to other regions, Latin America is doing well. Of 19 countries, Cuba alone lacks a democratic constitution and has not held free elections this century. All others have, at least nominally, multiparty regimes and a vibrant political debate. In quite a few, a strong judiciary has proven its independence by overriding presidential attempts to remain in office indefinitely and, more recently, by investigating corruption among political and economic elites. Most countries have made significant strides in furthering social inclusion. Civil society has become stronger, and technically savvy organizations enjoying political legitimacy have decisively helped redemocratize the justice system.

That said, some areas have seen precious little progress, while others have experienced a disturbing backslide. In Venezuela, the regime has shut down democratic institutions, predictably causing a humanitarian, social, and political tragedy of vast proportions, including the region’s worst migrant crisis. In Venezuela and elsewhere, massive and systematic human rights violations and voter fraud are reported. These problems are compounded by the conspicuous inability of some states to control their territory, the criminal activities of political elites, and massive corruption scandals. Alarming social divisions, growing polarization, and declining trust in democracy and its representative institutions are also evident.

As envisaged in many Latin American constitutions, the rule of law requires, inter alia, separation of powers and upholding minority and fundamental rights. While the rule of law is not easily defined, intersecting as it does both political science and the law, this chapter views the concept as the legal and political foundation of a robust democracy. For the rule of law and democracy to exist, elections alone are insufficient. Also required are a state monopoly on force, control over government power, and as Ronald Dworkin (1986) notes, not using minority rights as a bargaining chip.

This chapter presents a brief overview of the status of the rule of law in Latin America, with an emphasis on five of the most serious challenges facing its consolidation. The starting point is the transition to democracy and the constitutional reforms that sought to consolidate it. Covered next are some of the most significant challenges facing the rule of law: the inability of certain countries to control their territory and the resultant violence, the threats facing judicial independence, corruption, re-election and hyper-presidentialism, and the persistence of inequality. The chapter closes with brief remarks on the erosion of popular support for democracy.

The Transition to Democracy and the Constitutional Promise

In the 1970s, only Colombia, Costa Rica, and Venezuela were not ruled by a military junta or authoritarian government (although Colombia was emerging from a restricted political regime and stared armed conflict in the face). As a so-called “third wave of democracy” rippled through Latin America in the late 1970s, things began to change, driven, inter alia, by a new international scenario. The Greek, Portuguese, and Spanish dictatorships had come to an end, and the Cold War was winding down. In many autocratic states, a fiscal crisis made it hard to control bureaucracies and societies. Thus, in 1978, Dominican president Joaquín Balaguer was forced to turn power over to Antonio Guzmán. After that, the region—except for Cuba—began moving from authoritarian military or civilian regimes to democratic rule. In Ecuador, a military junta turned power over to Jaime Roldós in 1979. In the 1980s, autocrats in Argentina, Bolivia, Brazil, Chile, Nicaragua, Paraguay, Peru, and Uruguay gave way to democratically elected governments. In 1989, the Noriega dictatorship ended and Panama headed to the polls. In the 1990s, El Salvador and Guatemala negotiated peace accords that cleared the way for a return to democracy. In 2000, Mexico ended the seven-decade reign of the Institutional Revolutionary Party.

Apart from the antidemocratic attitudes of some individual leaders, only Peru substantially regressed into authoritarianism. In 1992, President Alberto Fujimori dissolved the Legislative Assembly and took over the judiciary in the name of the fight against terror. It is no coincidence that the Inter-American Democratic Charter was adopted in Lima in 2001, a year after Fujimori’s hasty departure. The event was a symbolic celebration of the return to democracy in Peru and an assertion of the renewed democratic values of a region that, except for Cuba, was at last represented by governments elected in reasonably fair elections. With the charter, the countries of the Americas sought to mark a turning point in the collective defense of democracy. But consolidating the rule of law would prove to be a slower and much tougher task than enthusiastic Latin American governments had anticipated.

Although fragile and institutionally fragmented, the new democracies relied on a robust understanding of the rule of law that comprised not only regular, free, and competitive elections, but also a somewhat broad list of fundamental rights. 

From 1982 to 1987, several Central American countries enshrined in their constitutions checks on presidential powers (e.g., a ban on incumbent or unlimited re-election) as well as an important slate of individual rights and judicial mechanisms designed to protect the constitution. These constitutions failed to thrive because of political tensions in the subregion and the armed conflicts in El Salvador and Guatemala, but shortcomings aside, they did seek to consolidate democratic regimes under lawful civilian authority.

The Brazilian Constitution of 1988 marked the start of a second wave of reforms that would last through Mexico’s constitutional amendments of 2011. Meant to consolidate the rule of law, these changes limited presidential powers, recognized a broad slate of rights, gave international human rights instruments constitutional standing, created or strengthened constitutional justice systems, and boosted judicial independence. Some constitutions set up new civic engagement mechanisms, such as recall referendums, popular legislative initiatives, plebiscites, and popular consultations. Drafted during the heyday of the Washington Consensus, these changes also sought to bolster legal certainty and enable structural privatization and deregulatory reforms designed to increase the role of the market in the economy. But promises regarding economic, social, and cultural rights collided with institutional models and political agendas that had placed their bets on the market as the key driver of growth and redistribution (Uprimny and García-Villegas 2004).

Despite these efforts, chief executives retained significant power over the rest of government. In some countries, the only effective counterweights were constitutional courts or panels that reined in presidential excesses and adopted decisions forcing presidents to implement the social policies mandated in the constitution. Limited participation, institutional weakness and fragmentation—especially in remote regions—and poor implementation of accountability mechanisms, such as transparency and access to information laws, impeded the rise of a strong civil society capable of claiming a key political role. Although great institutional efforts were made to consolidate the functioning of the market, the institutions tasked with delivering quality goods and services to the disadvantaged were, with a few exceptions, timidly implemented.

Finally, there is a third type of new constitution, including those of 2008 in Ecuador and 2009 in Bolivia. These constitutions were drafted as the Washington Consensus faded away and amid a fiscal bonanza fueled by rising commodity prices. They reflected the rise of leaders outside the traditional party mainstream who rode in on the shoulders of broad social movements disenchanted by the failure of liberal promises. The new leaders promised substantial reforms in the name of social inclusion and cultural rights. Their constitutions substantially added to the catalogue of rights, gave government new powers, and, as counterbalance, created new and powerful mechanisms of civic engagement and social control. However, these mechanisms were promptly co-opted by the executive power, putting an end to this new experiment in direct democracy and reinforcing the typical concentrated and hierarchical powers of regional constitutionalism.

The constitutions of the first and second periods, and at least the first versions of the Bolivian and Ecuadorian constitutions, promised a robust rule of law that would respect and guarantee political and personal autonomy rights and heed demands for equality and inclusion. The question now is whether these promises, crucial as they were for consolidating the rule of law, were fulfilled and what were the obstacles they faced.

Territorial Control, Violence, and Institutional Apartheid

It used to be that the regional debate on the rule of law did not include public security, one of the most critical issues on today’s agenda. Indeed, absent territorial control and a state monopoly on the use of force, there is no rule of law. In other words, the endemic public security crisis facing Latin America is directly connected to our topic.

With barely 8 percent of the global population, in 2017 Latin America accounted for 38 percent of all murders. Of the 50 most violent cities in the world (based on murder rates), 41 are in Latin America (Alvarado and Muggah 2018). As Robert Muggah notes in chapter 3 of this book, the emergence of organized, well-coordinated criminal groups operating throughout the region is raising concerns about state ability to guarantee territorial control and a monopoly on force, without which there can be no rule of law.

While vast portions of Colombia were long controlled by criminal groups that, all told, led to over 8 million victims (Alsema 2018), Colombia is no longer the region’s sole case of macro-criminal violence. Starting in the year 2000, drug lords began to fight the Mexican state for control of extensive border zones. As their Colombian counterparts lost their hold on drug shipments to the United States, the powerful Juárez and Gulf cartels moved in. Soon their reach extended throughout Central America’s Northern Triangle (El Salvador, Guatemala, and Honduras) and is now spreading to areas of Colombia vacated by the Revolutionary Armed Forces of Colombia (FARC) guerrillas demobilized in 2016. Now more powerful than ever, drug cartels run hemispheric networks that have diversified into the capture of state rents, arms trafficking, drug precursors, smuggling, and human trafficking. All of these activities are fueled by the war on drugs, which has turned the drug trade into the world’s most lucrative industry and the cartels into sophisticated enterprises capable of wresting territory from the state.

Other players include groups less structured but just as violent as the cartels, such as MS-13 or the Mara Salvatrucha. These groups are organized in stand-alone gangs which answer to local bosses and control vast vulnerable neighborhoods. This form of gang activity is growing throughout El Salvador (one of the world’s most violent countries, second only to Venezuela in the region), poor Venezuelan neighborhoods, and the favelas of Rio de Janeiro. In many countries they also run the prisons, relegating the state to perimeter control. These groups wield absolute power over residents under their control. A new and growing criminal undertaking involves illegal mining, oil extraction, and logging activities. These groups often intimidate and murder environmental leaders, a practice that in 2017 reached epidemic proportions in Brazil, Colombia, Mexico, and Peru.Once criminal gangs secure their turf, they set up regional networks that attempt to neutralize or capture state activities. Territorial control is usually facilitated through tacit cooperation or non-aggression pacts with local or central officials. Some of these arrangements are based on acts of corruption or mutual interest; others are the result of state inability to take action. The most successful of all state capture experiments is taking place in Venezuela, where officials across the board—including the military—are involved in drug, fuel, currency, food import, and smuggling cartels, leaving criminal gangs to handle street violence, neighborhood enforcement, and prison control (InSight Crime 2018).

The inability of Latin American institutions to prevent, investigate, and sanction crime is staggering, as is the resulting neglect facing millions of people. Other than the promise of the “citizen security” initiatives Robert Muggah notes in his chapter, effective prevention policies remain conspicuously absent. Regional impunity rates stand among the world’s highest, ranging from 50 percent to 92 percent. The 2014 Ayotzinapa case in Mexico, in which 43 students were forceably disappeared after an alleged encounter with police forces, is a powerful example. Years after the incident took place, there have been no convictions, and the Mexican state has been accused of purposely derailing the judicial investigation.

Millions of residents of outlying areas are subject to violence from illegal groups and often from poorly trained security forces. The lack of territorial control prevents institutions from operating adequately and limits their ability to deliver quality goods and services to communities facing a plight that García-Villegas and Espinosa (2016) have labeled institutional apartheid, or the absence of the right to have rights due to state weakness and the dominance of violent groups.

As such, the debate about the rule of law cannot overlook the security crisis and the state’s inability to tackle it. Since a complete overhaul of the global drug control policy that is fueling the violence is not realistic at present, it is imperative to at least think about a comprehensive security policy that goes beyond law enforcement’s anti-violence campaigns. For any such policy to succeed, it must strengthen fragile state institutions and engage communities without compromising safety. It must also improve the delivery of goods and services, including infrastructural, to outlying areas; revise campaign financing rules; and control the use of public funds. Also crucial are mechanisms for regional cooperation and mutual legal assistance, and reinforced prosecutorial independence and autonomy. Reverting high impunity rates can offer redress to victims and is the most effective way to prevent recurrence.

Judicial Independence and the Rule of Law

A key aim of post-transition constitutional reforms was to bolster court autonomy and independence. These changes set up independent judicial councils to handle court appointments and administration, sought to establish a judicial career track, and in some cases, provided budget guarantees designed to ensure that no government could financially starve the justice system.

Most of these efforts reflected the neo-institutional economic thought prevalent in the late 20th and early 21st centuries. The intent was to create courts that would efficiently arbitrate conflict, protect property, and give legal certainty to the private sector. However, the strengthening of justice, especially constitutional justice, combined with entrenchment of a broad slate of rights produced unanticipated effects that became enormously important for fulfilling the promise of social constitutionalism.

Indeed, guarantees of impartiality and independence allowed many judges to uphold key minority rights, notably prior consultation with indigenous peoples, sexual and reproductive rights, recognition of same-sex couples, and protection of social rights. In Colombia and Guatemala, the courts helped protect institutional stability from the arbitrary acts of powerful actors and prevented presidents from remaining in office indefinitely. As noted below, across the region prosecutors and judges are playing a critical role in investigating and prosecuting political and economic elites linked to major corruption scandals.

Still, judicial independence continues to face serious issues. Except for Brazil and Chile, most countries offer no real career track, and many judgeships are filled by nontenured judges, which makes them even more dependent on their political patrons. Expert and funding support remain insufficient; wages are often not competitive; and judicial councils have not shown the expected autonomy, governance, and management skills. Most countries lack effective policies on granting the disadvantaged access to justice, meeting judicial demand in outlying areas, and protecting judges and prosecutors who investigate organized crime.

These vulnerabilities make the judiciary permeable to corruption and political interference, while society wonders about the legitimacy of a slow, biased justice system. Authoritarian governments have exploited these concerns to push for reforms that ostensibly intend to enhance the courts system, but in fact tend to weaken its independence. Many authoritarian rulers have seriously undermined judicial autonomy and independence to remain in office, avoid prosecution, or dilute checks on their power.

Venezuela is a textbook example. After becoming president in 1999, Hugo Chávez leveraged the judiciary’s widespread disrepute to push for reforms that purported to strengthen the courts while in fact placing them under government control. The capture of the judiciary helped consolidate an authoritarian regime and lend a veneer of legitimacy to acts that contributed to breaking down the rule of law. For example, in 2017, the Venezuelan Supreme Court validated an illegitimately convened, government-controlled constituent assembly designed to supplant the opposition-controlled Legislative Assembly elected in December 2015. In countries such as Bolivia, Honduras, and Nicaragua, the evidence shows that guarantees of judicial independence are clearly lacking. In Ecuador, the reforms that gave former president Rafael Correa control of the courts are being dismantled by amendments approved in a plebiscite called by his successor, President Lenín Moreno.

There is a direct link between judicial guarantees, the rule of law, and democracy. Where the justice system is afforded institutional, structural, and functional guarantees of independence and autonomy, democratic performance is best. Where judicial independence is fragile or nonexistent, the quality of democracy is low.

The World Economic Forum uses a judicial independence indicator ranging from 1 to 7, with 1 indicating no independence. The 2018 report, comprising 140 countries, gives Venezuela, Nicaragua, and Ecuador a score of 1.1, 1.6, and 1.9, respectively, among the lowest in the world. In contrast, Uruguay, Costa Rica, and Chile score 5.4, 4.9, and 4.9, respectively. In the World Justice Project’s Rule of Law Index (scores range from 0 to 1, with 1 indicating strongest adherence to the rule of law), one indicator is the judiciary’s ability to act independently and to effectively limit government power (World Justice Project 2018). Latin American countries with the lowest scores on this front were Venezuela (0.14), Bolivia (0.24), Nicaragua (0.32), Honduras (0.35), and Ecuador (0.37).

In this century, all Latin American governments that drifted into authoritarian rule generally started by curtailing judicial independence and freedom of expression.

The Rule of Law and the Fight Against Corruption

Corruption scandals such as Mexico’s Casa Blanca, Guatemala’s customs bribery ring, Costa Rica’s cement company racket, and Brazil’s Odebrecht and Lava Jato cases (which then snowballed through the region) have shaped the Latin American political debate since 2012. As a heightened perception of corruption may help account for the democratic backsliding in the region, these scandals have a strong impact on the rule of law. 

Analyzing the response to corruption helps determine the health and maturity of the rule of law. In December 2016, following the remarkable progress made by Brazilian prosecutors, the U.S. Department of Justice revealed that from 2001 to 2016 Odebrecht paid some US$788 million in bribes across 10 Latin American countries. Brazil and Peru have successfully prosecuted and convicted prominent politicians and businesspeople. But in the Dominican Republic, Mexico, and Venezuela, impunity has been the rule. What often makes the difference is the ability of prosecutors and judges to try cases involving politically powerful individuals. Where prosecutors are government appointed and judges are not protected by guarantees, investigations may stall or be restricted to lower-rung officials.

Brazil is a prime example of the impact of an independent judiciary on the anti-corruption fight. Three former presidents are facing charges, notably Luiz Inácio Lula da Silva, already serving time for corruption. Also behind bars are the former speakers of the lower and upper houses; the head of the government’s congressional caucus; the former governor of Rio de Janeiro; and several legislators, cabinet ministers, and business people. 

In Peru, the fallout from the Odebrecht scandal led to the resignation of President Pedro Pablo Kuczynski. All told, three former presidents are under investigation and former president Ollanta Humala and his wife are already in pretrial detention. That said, Fujimorista legislators have threatened a congressional investigation of the lead prosecutor. In Ecuador, the investigation went ahead only after the Moreno government appointed a new prosecutor. As of this writing, Correa’s vice president has been convicted and his comptroller general remains at large. 

Argentina, where the courts under President Cristina Fernández de Kirchner (2007–15) shelved or stalled corruption cases, is another example of investigations gathering steam under a new government. A new scandal erupted in 2018, with mounting evidence implicating Fernández in a massive public works corruption scheme. In an unprecedented development resembling Brazil’s Odebrecht affair, leading businessmen have admitted to paying kickbacks, which has led to fresh charges against the former president.

Where judges are less independent or the political atmosphere is adverse, investigations have failed to make headway. In Venezuela, a prosecutor appointed by President Maduro to look into the million-dollar bribes paid by Odebrecht promptly closed the investigation without filing charges. In Mexico, the prosecutor handling the Odebrecht file was fired after he made it clear that he actually intended to investigate.

In Guatemala, events around the International Commission Against Impunity in Guatemala (CICIG) show the close connection between presidential privilege, judicial independence, and corruption. CICIG was established with United Nations support as part of the peace accords. A 2015 CICIG investigation conducted in tandem with local justice officials implicated President Otto Pérez Molina in a customs corruption ring, eventually forcing his resignation. More recently, President Jimmy Morales has responded to an investigation into his family and presidential campaign with fierce attacks against the CICIG commissioner. Strong support from the United Nations and regional states, plus the technical skills and security of tenure of the commissioner and his team, show that institutional, structural, and functional guarantees can achieve remarkable results even under extremely hostile circumstances. Special mention should be made of the Guatemalan Constitutional Court’s courageous stand to forestall drastic action against CICIG. At present, Morales is escalating his attacks against CICIG, with support from major allies in the U.S. Congress and government.

The Mission to Support the Fight against Corruption and Impunity in Honduras, a similar undertaking created under the auspices of the Organization of American States, has also faced serious hurdles investigating Honduran officials.

The checkered progress made in the anti-corruption fight shows how much remains to be done to fully guarantee court independence and transform the political culture. While it is encouraging that cases are being brought to light and serious investigations conducted, the absence of effective justice can hurt confidence in the system. Moreover, some politicians under investigation are using their clout to escalate polarization and question the justice system. In Brazil, Lula loyalists feel that court decisions against him are part of a political conspiracy. In Argentina and Ecuador, Fernández and Correa followers have accused the courts of being partisan and selective, while opponents claim that the system is ineffective. Where court guarantees are insufficient, democratic principles are not well rooted in civil society and calm debate on the role of the courts is found wanting, anti-corruption efforts can paradoxically end up undermining support for democratic institutions.

The Strengthening of Presidentialism and Re-election

To avoid a repeat of past abuses, most Latin American constitutions of the 1990s set limits on presidential re-election. Some barred it and others allowed it, although not consecutively or indefinitely. Yet, within the past 25 years, 12 of 18 governments have moved to weaken these limits.

In 1993, Peruvian president Alberto Fujimori successfully pushed for single-term incumbent re-election under the constitution. In 1996, free from the strictures of democratic formality, he had the legislature pass a law allowing him to run once again. He won, but his mandate rapidly collapsed amid accusations of widespread voter fraud. Shortly after, Fujimori fled the country to evade serious human rights and corruption charges. In 2000, upon the return of democracy, a constitutional amendment set a five-year term of office and barred incumbent re-election.

In 1994, Argentine president Carlos Menem agreed to reforms advancing the legitimacy and governance of the presidential system in exchange for a re-election clause. Once re-elected in 1995, he tried to remove term limits. Menem currently stands convicted of serious felonies. 

Brazil’s Fernando Henrique Cardoso also amended the constitution to allow for incumbent re-election. His intent was to ensure the sustainability of his Plan Real, a blueprint for stabilizing the currency after a difficult period of hyperinflation. To secure approval, Cardoso proposed reducing the term of office to four years, limiting re-election to a single term, and exempting governors and mayors from these restrictions. The amendment was approved by the voters, and in the 1999 presidential elections Cardoso defeated Lula da Silva. This may well be the only instance of a popular second-term president not seeking a new amendment to stay in office.

The 1999 Venezuelan constitution allowed one-time incumbent re-election and extended the term of office from five to six years. With a party system in disarray, a president with sky-high poll numbers, and a Constituent Assembly controlled by a government majority, the amendment was easily passed, allowing Chávez to substantially boost the powers of the presidency. He later proposed a referendum on unlimited re-election, an initiative that failed in 2007 but was eventually approved in 2009, leading an exultant Chávez to declare that he would stay in power through 2025. Elections in Venezuela presently lack all legitimacy, but this amendment allows Maduro to run as often as he wants, on a playing field wholly tilted in his favor.

Correa, in Ecuador, also succeeded in pushing through his re-election ambitions. After serving three terms, he left the post intending to run again after Moreno completed his term, only to see re-election barred in a referendum held by the new administration. In the Dominican Republic, the rules have been constantly debated and amended to allow incumbent presidents to remain in office. The Colombian case is unique, in that although President Álvaro Uribe did manage to pass a constitutional amendment enabling him to run a second time, the Constitutional Court threw out an amendment that would have allowed him to run a third time.

In Bolivia, Honduras, and Nicaragua, where the judiciary is beholden to political power, limits on incumbent re-election were relaxed by court ruling after political efforts to secure a reform failed. Independent observers have strongly questioned the subsequent presidential elections held in Honduras and Nicaragua. While in Costa Rica re-election was also enabled by court ruling, the decision did not benefit a sitting president.

Most re-election efforts have been led by charismatic presidents vowing to address pressing security, social, and cultural demands. Once re-elected, however, they often stray from the mandates of democratic constitutionalism. All such rulers have significantly increased their powers, as additional terms of office offer an enormous ability to control the institutions meant to hold them accountable. In Nicaragua and Venezuela, crackdowns by re-elected presidents have resulted in the deaths of hundreds of opponents.

The Unfulfilled Promise of Social Constitutionalism

In its most robust version, such as many Latin American countries envisaged after transitioning to democracy, the rule of law ought to guarantee the rights and entitlements of all citizens. This duty entails a state obligation to confront the multidimensionality of poverty and inequality. As George Gray Molina writes in chapter 4 of this book, the socioeconomic dimension is but one factor behind inequality in Latin America. Gender, native or Afro-descendant status, age, and place of residence are also core components of inequality. These often overlap and feed on one another, resulting in wide-ranging inequality in matters of access to rights. While chapters 4 and 5 by Gray Molina and Augusto de la Torre and Alain Ize respectively review the impact of economic and social policy, this chapter focuses on inequality as the unfulfilled promise of the rule of law.

As Gray Molina shows, from 2002 to 2014, Latin America made significant headway in terms of poverty reduction. The advent of leftist governments shifted the development policy agenda toward inclusion and social issues, driving a significant increase in social spending. However, a new international scenario, slumping commodity prices, and the collapse facing countries implementing this agenda (Nicaragua, Venezuela) have revealed that any progress that was made did not come from stable, robust institutions capable of sustainably managing such policies.

Inequality persists, at least in part, because of the weakness or absence of long-term policies capable of fostering stable institutions that are free from political cronyism and ensure the rights and interests of all sectors affected by these structural issues. The reality is that Latin American political elites of all stripes seem more preoccupied with acquiring and holding onto power than with guaranteeing universal access to rights.

In accounting for the lack of policies addressing structural inequality, another equally relevant factor is the lack of effective mechanisms for representation and participation in public policy making and accountability. Significantly, most constitutional reforms have preserved the traditional highly concentrated, top-down forms of exercising power. Where these did contemplate mechanisms for participation and social control, as in Bolivia and Ecuador, chief executives made sure to thwart them. The connection between constituents and representatives is thus tenuous and outlets for deliberation and participation, especially in remote regions, few and far between. Furthermore, the models adopted failed to include functional transparency and accountability systems. In short, while some efforts to address inequality were made, especially during the commodity bonanza of the early 2000s, they were not part of a larger policy design capable of building up long-term social citizenship and state capacities. Social benefits often remained tied to the whims and electoral goals of the government of the day, or, as in Venezuela, were wielded as a political tool while the basic institutions of the rule of law were dismantled.

Absent more adequate mechanisms for representation and participation, it often fell to the judiciary to ensure adoption of social policy and compel governments to fulfill their social mandate under the constitution; so-called “structural determinations” are a prime example. Many social movements chose strategic litigation over working through channels of representation. Court decisions, however, face democratic and material constraints. When matters involve redressing structural inequality, the justice system simply cannot offer adequate, long-term solutions to issues the political system chooses to ignore.

Concluding Remarks on the Regression of Democracy

The economic and social gains of the early 2000s notwithstanding, by 2018 excitement over the Latin American spring has died down, and so has optimism over its not-so-new democracies. The latest report of the World Justice Project’s Rule of Law Index (scores range from 0 to 1, with 1 indicating strongest adherence to the rule of law) gives Venezuela 0.29 points, the world’s worst performance overall, followed by Bolivia (0.38), Honduras (0.40), Nicaragua (0.43), Guatemala (0.44), Mexico (0.45), and Ecuador and the Dominican Republic (both 0.47) (World Justice Project 2018).

Moreover, support for democracy has been steadily slipping in the last decade. The Latinobarómetro survey reports that the share of Latin Americans preferring democracy over any other form of government fell from 61 percent in 2010 to 48 percent in 2018. Dissatisfaction is also growing: in 2010, 52 percent of respondents were not satisfied with democracy in their country; by 2018, the number had risen to 71 percent.

The decline affects both democracy and its basic institutions. The AmericasBarometer survey asked respondents if they agreed that presidents should close down the legislature when the country is facing difficult times. In 2010, 14 percent of Latin Americans agreed; in 2016, the number rose to 20 percent. In 2010, 32 percent trusted the courts, 45 percent trusted the government and 34 percent trusted the legislature. By 2017, these figures had dropped to 25 percent for the courts and government and to 22 percent for the legislature. Worst ranked overall were political parties. According to Latinobarómetro (2018), in 2010 political parties were trusted by 23 percent of Latin Americans; by 2017, the number stood at a scant 15 percent. AmericasBarometer reports similar findings. In 2010, 24 percent trusted political parties; in 2016, the figure stood at 17 percent (Cohen, Lupu, and Zechmeister 2017).

Accurately isolating the root causes of the growing democratic backsliding is not an easy proposition, but some explanations seem plausible. First is the state of the economy. In a report recapping 20 years (1995–2015) of measuring public opinion, Latinobarómetro (2015) found a clear link between economic health and satisfaction with democracy. From 2002 to 2008, Latin America lived through a virtuous cycle of sustained growth that lifted per capita income and substantially boosted support for democracy. Once the cycle was over and per capita income growth weakened, support for democracy declined.

Another factor is the growing incidence of voter fraud and the overt abuse of the rules of the game by incumbent presidents intent on staying in office. Indeed, inconsistent social agendas, ineffective public security policies, corruption scandals, and neglect of outlying regions have led many to feel that rulers govern to benefit themselves, not society. Compounding this feeling is the crisis facing political parties as channels of representation and the rise of charismatic leaders promising to address demands for justice and security while disparaging checks and balances such as the courts and press freedom. In addition, the new world scenario, with Donald Trump becoming president of the United States as Russia and China are in the ascendant, has induced a bewildering lack of interest—to say the least—in democratic backsliding in Latin America. As a result, democracy has ever fewer champions at a time when societies seem ever more disenchanted. Finally, there is a shift in political discourse that cannot be emphasized too strongly: the rise of increasingly intolerant echo chambers unwilling to check their beliefs against the available evidence.

Samuel Huntington (1991) once wrote that waves of democracy are often followed by a decline that puts gains to the test. In the past five years, the test has cost Latin America dearly in terms of the consolidation of its democratic institutions. Maybe the time has come to call the decline for what it is: a dire, real challenge to the rule of law.

This chapter was written by Catalina Botero as part of the book “Unfulfilled Promises: Latin America Today.” 

Notes 

The author would like to thank Alejandro Cortes for his assistance.

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