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Peter D. Bell Rule of Law

The Inter-American Dialogue’s Peter D. Bell Rule of Law Program aims to elevate policy discussions around democracy and human rights, corruption and transparency, and citizens security in the Americas.

The program was established in 2015 to honor Peter D. Bell, a founding co-chair of the Dialogue’s Board of Directors, with support of the Ford Foundation. The broad scope and ambitions of the program are a fitting tribute to Peter’s expansive career as a tireless champion of human rights. 

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AMLO is inaugurated as president of Mexico

AMLO Falters on his Commitment to Combat Impunity

While AMLO deserves credit for pledging to combat Mexico’s impunity crisis, he has failed to set a clear strategy to address the faults and lack of independence within the justice system, calling into question his commitment to confront the root causes of impunity.

˙Catharine Christie

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On October 25, 2020 the Chilean people voted by an emphatic margin to approve a constitutional convention to draft a new constitution. For the first time in the history of Chile, the country will undergo a process to write a popular constitution, one written by the people in elected assemblies rather than by a dictator and his team of advisers.

The symbolic significance of a popularly written constitution is dramatic because Chile’s current constitution has its origins in the Pinochet dictatorship. After the 1973 coup, Pinochet appointed a committee led by the jurist Jaime Guzmán to draft a new constitution that would check the institutional power of the Chilean left. Pinochet’s constitution was put to a vote in a 1980 national referendum that was widely rejected as illegitimate. Following the transition to democracy, carried out under the 1980 constitution, Chile’s center-left governments achieved several rounds of constitutional reforms that removed the constitution’s most anti-democratic provisions.

Because the 2020 Chilean constitution is largely free of this anti-democratic legacy, the popular enthusiasm for drafting a new constitution is best understood as the culmination of a thirty-year process to repudiate the legacy of the Pinochet dictatorship, this time down to the very institutionality of the state, and to firmly root the source of the state’s sovereignty and legitimacy in the people rather than the military.

NEXT STEPS

The Chilean people now undertake a process that will last three years before culminating in the enactment of the new constitution. In April 2021, Chileans will vote to select representatives to the Constitutional Convention, with gender parity guaranteed. Candidates are elected in the same manner as the House of Deputies but are prohibited from currently holding public office.

The newly formed Constitutional Convention will start drafting the constitution from scratch, rather than working off the current constitution. However, the new text must respect Chile’s existing international obligations. The Convention’s rules also require two-thirds support for the inclusion of all constitutional provisions. This means that the new constitution will need the support of the Chilean right, assuming that the right obtains at least one third of the seats in the April 2021 elections.

The Constitutional Convention has nine months to complete its work, but with a one-time option to extend its mandate for three more months. Then, in mid-2022, there will be a final referendum requiring a simple majority to approve the proposed constitution. The new constitution would become effective in 2023. 

HOPES AND FEARS

For the Chilean left, the drafting of a new constitution presents the opportunity to do away with the legal and institutional legacy of the Constitution of 1980. The millennial-led Frente Amplio, the Socialist Party, and the Communist Party – which together with other allied minor parties hold one third of the seats in the Congress – have dreams of turning Chile into a Nordic-style social-welfare democracy and believe that the constitution is the greatest obstacle standing in their way. Existing Constitutional doctrines like the principle of subsidiarity prevent the state from entering markets where private actors are already active, and this makes the government provisioning of public goods legally complicated.

Moreover, proponents of a new constitution have attacked the Constitutional Tribunal, a judicial body that is generally more conservative than the Congress and that has the power to veto legislation, prior to its enactment, that otherwise has the support of the President and Congress. Other developed democracies, such as the Netherlands, operate under the principle of parliamentary sovereignty and do not grant an effective veto over legislation to their high courts. The necessity of a Constitutional Tribunal, and the role of constitutionality review more broadly, is part of the constitution debate in Chile. The “blank slate” and two-thirds support requirement mean that the Chilean left can prevent these or other similar straitjacket provisions from entering the new constitution.

To those who voted “no” (rechazo) in the referendum, the constitutional process marks the first step of Chile’s descent into greater violence, social disorder, and economic depression. Though a much-mocked cliché, the voters of rechazo genuinely fear the coming of “Chilezuela.” For the most conspiratorial, the constitutional assembly could arrogate for itself full sovereign powers and displace existing democratic institutions, as happened in Venezuela in 1999 under Hugo Chávez. This would put at risk the exceptional progress Chile has made in growing its economy in the last thirty years.

THE MIDDLING PATH

The more likely outcome, however, is neither Nordic social democracy nor the Bolivarian Republic of Chile. Instead, Chile will experience two years of continued political uncertainty and attendant economic stagnation as foreign and domestic capital awaits the eventual results of the constitutional process before making any major investments. Any increase in social spending already faces strong fiscal headwinds owing to the dual blows of the 2019 social explosion and the 2020 Covid-19 pandemic.

Absent a self-defeating right-wing boycott of the Constitutional Convention elections, the two-thirds requirement will prevent the feared “radical takeover” of public institutions by the “hard left.” Chilean democracy has its problems, but this constitutional process is very distinct from that of Venezuela’s in 1999, which had a method of electing the constitutional assembly that gave an outsized supermajority to the Chavistas.

Nor will the new constitution assure universal public health, education and pensions. At most, the constitution may include aspirational promises. Perhaps a newly reformed constitutional court could take on an activist role in advancing social and economic rights, as happened in Colombia after the adoption of its 1991 constitution. But without implementing legislation, which requires majority support in Congress, newly promised social rights will likely not be worth more than the paper they are written on, just as in Venezuela. The Chilean left has overpromised its supporters and generated unrealistic expectations of material progress for the masses under a new constitution. The previous constitution undeniably made some reforms more difficult, but these issues operated at the margin.

The biggest obstacle to the establishment of a European-style welfare state in Chile is more straightforward: there has never been enough popular or electoral support. The historically influential center-left, as represented by the Christian Democratic Party, has not demonstrated a commitment to the same ambition. The Frente Amplio and Communist party, on the other hand, have never been anything more than a minority in Congress and have yet to have their presidential candidate advance to the runoff election.

As the Constitutional Convention begins its deliberations, the question remains whether Chile will continue to experience high levels of social mobilizations that at times challenged the ability of the state to maintain the rule of law. Will protesters be figuratively, or even literally, banging on the doors and walls while the Convention holds its sessions? The Covid-19 pandemic has so far kept a lid on mass protests, at least when compared to October 2019.

But Daniel Jadue, a communist mayor and the leading left-wing candidate in presidential polling, has urged continued mobilizations to serve as an oversight mechanism over the Convention. If social disorder continues to be a major issue, popular support could increase for the law-and-order right. And there is no chance the Chilean right will implement a social-welfare model given the necessary major increase in the tax burden.   

A popularly written constitution marks a new founding for Chilean democracy after the Pinochet dictatorship and the subsequent decades-long transition. A new constitution will certainly broaden the range of possible political projects in the long term. But it will not assure the success of any one project in particular. Chile will still face the same grand dilemma that inspired the 2019 social explosion: how to improve the social distribution of the spoils from thirty years of astounding economic success without “killing the goose that lays the golden eggs.”

William Skewes-Cox is a third-year law student at Georgetown University specializing in human rights law and a former consultant with the Dialogue’s Peter D. Bell Rule of Law Program. He holds a master’s in Global Politics from the London School of Economics. He studied and worked in Chile for five years as a teacher and journalist. He maintains permanent residency in the country and voted in the 2020 referendum.

RELATED LINKS: 

The Context of the Constitutional Reform in Chile: The Comparative International ExperienceEconomic Recovery and the Potential for Expanding Production in the Americas

The Unthinkable Crisis: Chile 2019

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While the Covid-19 pandemic has impacted every country in the world, it is clear that Latin America and the Caribbean has borne the brunt of its devastation. In the months since the World Health Organization designated the region as the Covid-19 global epicenter, Latin America and the Caribbean now has the highest death toll and case rate in the world. Additionally, in its October 2020 World Economic Outlook, the International Monetary Fund projected Latin America and the Caribbean to be the hardest-hit developing region in terms of GDP contraction in 2020. Long before the pandemic began to ravage the Western hemisphere, though, the region had been struggling to deal with the scourge of corruption. As governments and regional organizations muster a plan for post-pandemic economic recovery, addressing corruption must be at the forefront of any response — now more than ever.

In many Latin American countries, the necessary government responses to the pandemic have increased the space for opportunism and malpractice from public officials, especially in the realm of public health-related acquisitions and procurement of PPE, ventilators and other necessary supplies. For example, Colombia’s inspector general opened hundreds of corruption cases against political donors who received lucrative contracts, and in an earlier investigation, the Colombian Minister of Agriculture allegedly misappropriated funds related to Covid-19. In Bolivia, Health Minister Marcelo Navajas was detained due to accusations that the government had purchased ventilators at vastly inflated prices, and prosecutors claim that an Ecuadorian criminal ring colluded with Health Ministry officials to sell body bags to hospitals at over 13 times the appropriate price. And in Mexico, the son of the head of the federal electricity commission and key ally of López Obrador was ordered to recall dozens of flawed ventilators that he had sold to the federal hospital system for inflated prices.

Corruption at this scale is not new to the Americas. According to the 2020 Capacity to Combat Corruption (CCC) Index produced by AS/COA, 2019 was characterized by a regional trend away from adopting anti-corruption measures. Furthermore, the lack of a coordinated hemispheric response to the ramifications of Covid-19 exemplifies the additional tendency away from multilateralism. These negative trends are echoed in the most recent Latinobarómetro statistics concerning public trust in institutions.

It is important to acknowledge these challenges, even before Covid-19 exacerbated and continues to worsen the corruption landscape across the hemisphere. Public officials in Latin America and the Caribbean have historically lacked the political will to institute deep-cutting anti-corruption reforms. Even so, the pandemic has laid bare the consequences of corruption and institutional failure in such a drastic manner that the path forward must include systemic changes in how governments reach their citizens and address corruption in all of its forms.

This is, of course, especially relevant as governments across the region attempt to provide economic relief for their citizens and adequate supplies for their health systems to alleviate the worst effects of the pandemic. Poor governance and mismanagement of resources preclude public officials from responding efficiently even when they have the best intentions, but cases of willful price gouging compound the problem. The cases of corruption from across the hemisphere illustrate the institutional deficits that have hindered these government responses, producing wasteful inefficiencies that in turn have contributed to the current state of affairs.

Consider the case of Uruguay, which has by far the lowest rates of coronavirus in the Americas as well as the lowest rates of public perception of corruption according to the 2018 Latinobarómetro survey. Part of the reason for Uruguay’s success has been its relative institutional strength and capacity for governance, lending credibility to social distancing mandates and other relevant health guidelines, while also enabling the government to extend an economic lifeline to its citizens. In comparison, Peru adopted very similar policies in mid-March to combat the spread of the virus, but (as of October 13) has recorded around 25,000 cases per million (compared to just over 650 per million in Uruguay) due to rampant informality and inability of the government to adequately reach the population.

While Uruguay has been successful in facilitating cash transfers to vulnerable citizens, corruption at the municipal level in Peru leeches off of an already weak service delivery system, preventing money and other resources from reaching those who need them most. The juxtaposition of these two South American countries illustrates the importance of institutional capacity in combating corruption and fostering public trust.

It is important to acknowledge that institutions include not only formal laws, but also informal norms and customs, all of which constrain and dictate the actions of public officials. Weak accountability mechanisms and low levels of political will, which characterize the majority of countries in the region, shape the incentive structures facing public officials who choose to engage in these corrupt practices. And while many Latin American countries have auditors, anti-corruption bodies, and other entities to combat poor governance, they are undermined by an institutional framework that nonetheless incentivizes corruption at every level of government.

Even so, there are avenues by which governments, both at local and national levels, can address the shortcomings of these institutional frameworks. For example, at a Dialogue webinar on July 30, Mexican Ambassador Martha Bárcena referenced the example of Georgia, in which deep-cutting legal reforms were coupled with a normative shift away from associating corruption with wealth and success, thus addressing the issue of political will by targeting the incentives that bureaucrats across the country respond to. In doing so, the government profoundly altered the prevailing narrative that public sector employees had to engage in corrupt practices in order to be successful.

More recently, Paraguay’s adoption of the MapaInversiones platform, which allows for greater transparency in pandemic-related public procurement data, demonstrates cooperation with multilateral organizations such as the IDB in promoting accountability and efficiency. By decreasing the space for opportunism and centering outcomes around public engagement with resource management data, the government of Paraguay is able to send a clear signal that its main priority is an efficient, people-centered pandemic response rather than enriching the coffers of public officials. These priorities may explain Paraguay’s relative success in combating the adverse effects of Covid-19.

The political will to implement reforms such as these, especially during one of the most tremendous and multidimensional challenges that the region has faced, may be difficult for regional governments to muster. Even so, the vast majority of Latin Americans view corruption as a major public policy challenge, and recent protests have served as a clear signal that people are demanding change. As regional governments consider bold solutions to emerge from the pandemic, they must make credible commitments to curbing corruption, not solely to eliminate economic inefficiency and streamline government functions, but to restore public trust in institutions and cement transparency as a key priority throughout the region. By engaging with regional and multilateral organizations in addition to centering public accountability in domestic reforms, countries in the Americas can put their best foot forward both in the immediate recovery from Covid-19 and the years of growth to come.

Casey Wetherbee is currently pursuing a BSFS in international political economy and an MA in security studies at Georgetown's School of Foreign Service. He was previously an intern with the Office of the President at the Dialogue. 

RELATED LINKS: 

Economic Recovery and the Potential for Expanding Production in the Americas

Peru’s Covid-19 Outbreak

Covid-19 in the Americas: The Dialogue's Coronavirus Updates

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In his September 2019 State of the Union Address, Mexican President Andrés Manuel López Obrador (AMLO) declared, “If you ask me to express in one sentence what the new government's plan is all about: end corruption and impunity.” But well into the second year of his term, AMLO and his administration have done little to address the impunity crisis in Mexico, a country where about 98 percent of crimes committed remained unsolved. While AMLO deserves credit for pledging to combat Mexico’s impunity crisis, he has failed to set a clear strategy to address the faults and lack of independence within the justice system, calling into question his commitment to confront the root causes of impunity.

AMLO’s first full year in office, 2019, proved to be the most violent year on record in Mexico, with 34,582 murders. The same year saw an 89 percent impunity rate for intentional homicide in Mexico. In addition, in the last year femicides have taken center-stage as a pervasive issue in Mexico, prompting mass protests. About 74 percent of Mexicans believe that violence against women has increased in the past year, and more than half say it’s due to the impunity issue. Mexicanos Contra la Corrupción y la Impunidad (MCCI) and CONNECTAS reported that from 2012 to 2018, there were 3,056 reported femicides, with only 24 percent resulting in persecution. Women’s rights groups claim the reported numbers are much lower than the real figure for femicides, meaning impunity and violence against women is likely worse than the data shows.

Despite AMLO’s bold promise to end impunity, his approach to the justice system has proven poorly conceived and often counterproductive. A judicial reform plan, initially supported by AMLO, was proposed to the Senate by Attorney General Alejandro Gertz Manero in January. However, the Attorney General declined to consult Mexican civil society and proposed a plan that, if implemented, would have caused major setbacks to human rights protections. Human Rights Watch and other civil society organizations said the plan would increase the likelihood of police and prosecutorial abuses and impede judicial independence. If approved, the reform would have allowed detention of suspects for up to 40 days without charges, permitted the use in some cases of illegally obtained evidence, and decreased the number of judges who monitor defendants’ rights.

Protest Against Femicide in Zócalo November 2019 / Wikimedia Commons / Thayne Tuason / CC by SA 4.0

In February, AMLO withdrew his support for Gertz Manero’s regressive justice reform plan, and backed a new proposal by the president of the Supreme Court, Arturo Zaldívar. This plan seeks to fight corruption and nepotism, strengthen public defenders, and encourage gender parity. Zaldívar’s proposal would increase the number of women judges to promote gender equality in the judiciary and build up the Federal Judicial Council that oversees judges and magistrates. Strengthening the powers of the Judicial Council to combat corruption and nepotism is a step forward, especially compared to Gertz Manero’s proposal. However, promoting women judges to answer for the lack of gender perspective in rulings on femicide cases, while important, does not effectively tackle the root issue for prosecuting femicides in the justice system. Rather, the absence of special protocols to investigate crimes as femicides leads to its under-reporting and low level of prosecution. Additionally, AMLO recently dismissed 26,000 calls in March to emergency hotlines reporting violence against women as no more than prank calls. His denial of gender-based violence will make it harder for claims to be taken seriously and continue to exacerbate the systemic issues obstructing the prosecution of femicides.

Zaldívar’s plan attempts to reinforce the professionalism of the Judiciary, yet it largely fails to address the justice system’s lack of independence that hampers Mexico’s ability to combat impunity. Officials within the justice system have also proven vulnerable to influence by organized crime, undermining their ability to make autonomous decisions and follow through with independent investigations. AMLO’s support for Zaldívar’s plan improves upon oversights in Gertz Manero’s plan, but does not make significant or sustained improvements to judicial independence.

Even outside of the proposed judicial reform plans, the President has shown a lack of concern for implementing measures to increase the independence and accountability of the criminal justice system. In December 2018, Mexico passed a Ley Orgánica de la Fiscalía General de la República (LOFGR) that included a number of important reforms to the office of the chief prosecutor, such as the establishment of the Citizen Council (Consejo Ciudadano), the issuance of specialized prosecutors for human rights, electoral crimes, internal affairs, and anti-corruption, and the requirement for the Attorney General to present a Criminal Prosecution Policy (Plan de Persecución Penal). LOFGR’s reforms were created to specifically address the issue of judicial independence, and AMLO’s failure to push the Attorney General and the Senate to implement the accountability mechanisms established in the LOFGR undercuts any attempt to form an autonomous federal prosecutor’s office to combat impunity.

AMLO so far seems to prioritize his messaging for institutional change more than actually doing the challenging and crucial work of strengthening the justice system to tackle the impunity crisis.

Moreover, AMLO allowed the selection and appointment process for the Attorney General and specialized prosecutors to move forward with extreme expediency, further compromising the Fiscalía’s independence. The process to appoint the Attorney General lacked transparency and did not include citizen participation­, disregarding the requirements for the procedure established in the LOFGR. The LOFGR’s requirements are strategically designed to attract and select strong candidates. Since each candidate was not thoroughly considered in accordance to the requirements, the integrity and capability of the Fiscalía to function independently is undermined.

Gertz Manero’s process to appoint specialized prosecutors was also questionable. He did not openly call for applications for the Human Rights and Anti-Corruption Special Prosecutor positions as required by the LOFGR and failed to include citizen participation. Instead, Gertz Manero quickly nominated AMLO’s top choice for the Anti-Corruption Special Prosecutor position and even failed to submit the candidate for the Human Rights Special Prosecutor position for Senate approval. The pattern of politically-motivated appointments and the lack of procedural transparency brings into question the impartiality and effectiveness of the Fiscalía and specialized prosecutors to conduct independent investigations and prosecutions, and hurts efforts to fight impunity. AMLO’s decision to allow the Senate and the Attorney General to directly contradict the LOFGR and Article 102 of the Constitution, renders him negligent in holding the Fiscalía accountable and strengthening the independence of the system, fundamental in the fight against impunity.

Gertz Manero has remained silent about whether he will put forward a new package to reform the judicial system. Furthermore, there has been some opposition to Zaldívar’s proposal from Senators, such as Ricardo Monreal, who believe the plan is not ambitious enough in reestablishing national confidence in the judicial system. In any case, further consideration of the proposals will have to wait until Congress is back in session on September 1, unless they call for an extraordinary session specifically pertaining to the judicial reform. In the meantime, the judiciary has been partially suspended in 27 of the 32 states as a measure to control the spread of Covid-19, a potential further blow to efforts to strengthen the rule of law.

[AMLO] has consistently contradicted his message by supporting regressive and weak reform plans, failing to strengthen the independence of the judiciary, and allowing the Fiscalía to continue its work without accountability or transparency.

AMLO so far seems to prioritize his messaging for institutional change more than actually doing the challenging and crucial work of strengthening the justice system to tackle the impunity crisis. He has consistently contradicted his message by supporting regressive and weak reform plans, failing to strengthen the independence of the judiciary, and allowing the Fiscalía to continue its work without accountability or transparency. Nonetheless, the President still has the opportunity to move forward and make good on his campaign pledges. A meaningful plan to tackle impunity should include the following steps to strengthen the professionalism and independence of Mexico’s investigators, prosecutors, and judges. These recommendations are reflective of the active efforts made by Mexican civil society and international organizations to push for the enforcement of LOFGR and ultimately strengthen the fight against impunity.

1. Enforce provisions of the LOFGR that have not been implemented. In order for the Fiscalía to be considered legitimate and impartial, it must implement a meaningful Criminal Prosecution Policy (Plan de Persecución Penal), and include citizen and civil society participation. The Plan de Persecución Penal outlines the Fiscalía’s priorities and strategies to combat crime in Mexico and gives citizens the ability to oversee the Fiscalía’s actions in accordance to the plan. As of May 29, Gertz Manero is yet to construct and present a legitimate plan to the Senate in accordance to the LOFGR. Implementing the Consejo Ciudadano required by the LOFGR is equally as critical to ensure the Fiscalía’s independence. The Consejo Ciudadano ensures citizen participation, advises the Prosecutor General on the creation of policies such as the Plan de Persecución Penal, and serves as an oversight mechanism to hold the office of the Prosecutor General accountable. As of May 29, a Consejo Ciudadano has still not been appointed by the Senate.

2. Proactively address the judicial system’s lack of judges that poses a challenge to due process and increases the chances of impunity. Reducing the number of judges that monitor for police and prosecutor abuse and who review pre-trial evidence for permissibility would exacerbate the crisis. According to the 2017 Global Impunity Index (GII-2017), Mexico has 4.2 judges per 100,000 people, which is below the global average of 16.23 per 100,000. To put it in perspective, Croatia, which has the lowest levels of impunity according to the GII-2017, has 45 judges per 100,000 people. Increasing their numbers may reduce sentencing times, which could help decrease the chances of violations against detainees’ civil rights to occur.

3. Develop a strategy to address inadequate police investigations and flawed and insufficient work done by prosecutors, both of which contribute to the dysfunctionality of the justice system. To improve the capacity of law enforcement personnel and prosecutors at the local, state, and federal level, the administration should implement specialized training on using victims’ history to correctly classify and analyze crimes. Gaining expertise in properly classifying femicides and crimes against journalists as such will help in obtaining convincing evidence against the perpetrator and getting a conviction.

Carole Botello is a recent graduate from the University of Maryland with a degree in communications-public relations and a minor in international development and conflict management. She was an intern with the Peter D. Bell Rule of Law Program. 

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