the perfect storm

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By ALEXANDRE ARAGÃO DE ALBUQUERQUE*

In Latin America, powerful groups are increasingly using the courts to legitimize non-compliance with the law or institutional instability

In their book “Understanding Institutional Weakness”, published by Cambridge University Press, professors Daniel Brinks, Steven Levitsky and Maria Victoria Murillo seek to introduce political thought to the concept of “institutional weakness” (institutional weakness or fragility), arguing that weakness is a function of what an institution is able (or not) to promote as a social, political and economic result. For this, they present a typology in three forms of fragility: 1) Insignificance (when the rules are fulfilled, but do not affect the way the actors behave); Non-compliance (when the elites choose not to comply with or enforce the rules, even encouraging social non-cooperation with them); Instability (by changing the rules according to the interests of powerful actors, as well as by changing the rules at unusual levels).

The Study highlights that Latin American post-colonial elites engaged in discrimination, manipulation and evasion in the application of the Law, making it a constant source of instability for democratic regimes in the region, aggravated by the evident disrespect for constitutional laws repeatedly submitted to amendments according to the interests of the power groups or simply ignored its applications, generating a situation of tension due to the discrepancy between political promises and the social and economic inequalities experienced by the populations of that continent.

Democracy demands that the Law be applied uniformly throughout the territory and for all categories of citizens, without discrimination or privileges. But often what is proven is that the laws, which should combat inequalities, are designed and enacted precisely to feed them, protecting the authoritarian elites and their interests.

One of the institutions that is at the center of the “weakness” is the judiciary, with its hermeneutic attribution of the law, capable of both leading to institutional instability and non-compliance with the legal norm, since judicial interpretations can largely provide legal coverage and legitimacy for what is clearly a violation of the rule, but they can also be manipulated to produce frequent changes in order to achieve particular goals.

In Latin America, powerful groups are increasingly using the courts to legitimize lawlessness or institutional instability. As happened in the case of impeachments – Nicaragua, Paraguay, Brazil, Bolivia – in which some are more obvious than others. The Lava Jato scheme is an exemplary “case” of a perfect storm: 1) by overthrowing an elected president without a crime of responsibility; 2) by convicting a former president on conviction alone, without reasonable or substantive evidence; 3) by electing a far-right president, whose Lava Jato star, former judge Sérgio Moro, was chosen as Minister of Justice.

Respected journalist Luís Nassiff produced a serial documentary (for those fans of Netflix series, we recommend the excellent series “Lava Jato, Lado B”, by Luís Nassif), whose central question is: what is behind an operation that begins in Brazil and puts Petrobras in the US dock? There is, as is known, the creation of an enrichment industry using the image of the fight against corruption – compliance – as a weapon of institutional instability, political persecution of opponents, through lawfare, and protection for party partners.

Therefore, it is up to political scientists, researchers and professors in general to clarify to the public how much a court can be an accomplice in producing institutional weakness and a blow to democracy.

*Alexandre Aragão de Albuquerque Master in Public Policy and Society from the State University of Ceará (UECE).

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