Latin America’s selective pursuit of justice weaponises the law

“For our friends: justice and grace. For our enemies: just the law.” This pithy description of how to weaponise justice for political ends is attributed to Benito Juárez, Mexico’s 19th-century president. But, from Mexico all the way south to Argentina, it still well describes much of Latin America today.

The region’s biggest-ever corruption investigation, the “Car Wash” scandal that uncovered billions of dollars in bribes paid by a ring of Brazilian companies, has been all but destroyed by accusations of political bias. Intercepted messages between Sergio Moro, the judge trying the cases, and a lead prosecutor suggested collusion aimed at bringing down former president Luiz Inácio Lula da Silva. 

No matter that much of the proven Car Wash corruption revolved around state-controlled oil company Petrobras, then chaired by a close Lula ally, nor that the racket operated while he was president. When a supreme court judge last month annulled his own corruption convictions on a technicality, Lula hailed this as proof the entire investigation was a witch-hunt.

To be sure, the evidence on which Lula was convicted was thin. Moro made himself a target by accepting a cabinet post under President Jair Bolsonaro, a leader with scant regard for the law. A subsequent court decision also found that Moro had shown bias in Lula’s trial. The net result is the entire Car Wash probe has been disbanded, to the delight of the venal political establishment and the despair of many.

Meanwhile, in Mexico, president Andrés Manuel López Obrador has stepped up pressure on judges. Supreme court justice Eduardo Medina Mora, a former attorney-general, was accused of money-laundering and had his bank accounts frozen. Once he resigned, the accounts were unblocked, and no charges have been filed. Human Rights Watch’s Americas director José Miguel Vivanco has described the move as “a mafioso operation — more ‘The Godfather’ than modern republic”.

Then, when another judge ruled against López Obrador’s prized electricity reforms, the president asked the supreme court to investigate him. Now López Obrador plans a referendum on whether to put former presidents on trial for corruption and “neoliberal crimes”. Compliant courts have gone along with the idea.

Argentina is faring little better. President Alberto Fernández plans to reform the judiciary, but critics see a thinly-veiled attempt to stymie 11 corruption investigations into Cristina Fernández de Kirchner, the country’s powerful vice-president and former leader.

De Kirchner has been heading a campaign against what she terms “lawfare”. By this, she means “the articulation of media and the judiciary to persecute political leaders of governments which were in power”. But her definition is selective: the persecuted includes only leftist leaders and friends, such as Ecuador’s Rafael Correa, now living in Belgium after being convicted of corruption. When it comes to rightwing politicians, such as Argentina’s former president Mauricio Macri, de Kirchner and her “lawfare” allies are clear: they should be prosecuted.

Bolivia is perhaps the worst recent example. After Jeanine Añez became interim president in 2019, following a constitutionally-established line of succession, she was rightly criticised by human rights groups for pursuing what looked like politically motivated prosecutions of Evo Morales, her predecessor, and his associates.

But when Movement Towards Socialism, the party of Morales, returned to power last October after free elections, those prosecutions were dropped and the legal weathervane turned in her direction instead. Last month, she and other members of the interim government were thrown in jail pending trial on charges of “sedition and terrorism”, a move that sparked concern from the UN. Bolivia is a “clear case of a judiciary that lacks fundamental independence from the government . . . judges and prosecutors just follow the politics of whoever is in charge,” says Vivanco.

Such habits are endemic in the region. The restoration of democracy to Latin America in the 1980s may have returned the military to the barracks. But it has not yet delivered fully independent judges or prosecutors. Would Júarez, López Obrador’s political hero, have approved?

No, says historian Enrique Krauze. His famous phrase about applying justice was misquoted. In fact, Júarez was a strong proponent of independent courts. Better than many subsequent presidents, he understood that for Latin America to prosper, justice and grace must be served to foes and friends alike.

michael.stott@ft.com