Threats to Democracy: The Erosion of Judicial Independence

From Canada in the North to Argentina in the South, including the nations in the Caribbean, the nature of threats to democracy is undergoing a significant transformation.

While traditional overthrow of governments has receded, other more sinister threats have arisen. In Latin America and even now in the United States of America (US), elected opposition parties are manipulating parliamentary procedures to throttle policies and programmes of elected governments, or they are mobilising their hard-core supporters to engage in unlawful activity to prevent elected representatives from assuming office.

The Co-opting of the Judiciary

Among these threats is the co-opting of the judiciary by governing bodies for partisan objectives. In several instances, there is visible collaboration between government and judicial officers, leading to the sacrifice of judicial independence for political gain.

This alliance jeopardises the constitutional order and erodes the bedrock principles upon which democracy is built.

Guatemala: A Case Study

The present situation in Guatemala serves as a disturbing example. According to the Inter-American Commission on Human Rights (IACHR), actions initiated by the Public Prosecutor's Office seriously jeopardise the constitutional order and the independence of the government's branches. The Public Prosecutor, with assistance from judges in the lower courts, is making a concerted attempt to suspend the registration of the Semilla Movement. This political group, led by Bernardo Arévalo de León, has secured the presidency. León is scheduled to assume office on January 14, 2024. Large public protests have erupted in Guatemala's streets in response to these actions. This widespread unrest sets the stage for potential conflict and highlights the nation's palpable tension.

This public outcry could escalate further if the Special Prosecutor successfully attempts to overturn the will of the majority of the Guatemalan electorate, who have chosen Arévalo and his Semilla Movement to represent them.

Amid this turmoil, Guatemala's judiciary has notably remained distant from the issue. An exception to this detachment is the Constitutional Court and the Supreme Electoral Tribunal. These bodies played crucial roles in ensuring Arévalo's participation in the presidential election's second round held on August 20, where he garnered more than 64 per cent of the vote.

Judicial Collapse in Haiti

In the Caribbean, Haiti stands out as a country where successive governments have systematically weakened the judiciary, leading to a dearth of judicial autonomy and a failure to deliver justice to the Haitian people. In this environment, unconstitutional governmental actions go unchallenged, further eroding the democratic framework.

The Essential Role of an Independent Judiciary

Yet, throughout the Americas, including in the Caribbean, "the role of an independent judiciary in protecting people's right to vote in free and fair elections is essential" as declared in a recent publication by Tamara Taraciuk Broner and Rebecca Chavez of the Inter-American Dialogue.

Thus far, in the Caribbean, apart from Haiti, the judiciary has acted in accordance with its constitutional duties and the law in relation to democracy and elections, and governments have not sought to erode judicial independence and authority. For example, the high standards to which the high court and Court of Appeal in Guyana adhered in that country's 8-month elections impasse contributed greatly to the peaceful acceptance of the results of the general and presidential elections in 2020. Similarly, there are nations within the Americas where the judiciary has steadfastly upheld its constitutional duties, acting as a bulwark against attempts to subvert democracy. Countries like Brazil, Mexico, and Ecuador and the countries of CARICOM (Haiti excepted) offer examples of judicial robustness, with their courts playing pivotal roles in ensuring free and fair elections despite political pressures and challenges. In these cases, the judiciary serves as the ultimate safeguard of people's rights and freedoms, acting independently of transient political powers or majority pressures.

Persistent Challenges to Judicial Independence

However, when the judiciary succumbs to political pressure, failing to uphold the constitution and the law, democracy is endangered.

Broner and Chavez regard El Salvador as a place where an extreme case of political interference with the judiciary has taken place. They state that the "Nayib Bukele administration arbitrarily dismissed independent Supreme Court justices and the attorney general in 2021 and packed the court with allies", thus allowing Bukele to run again in February 2024 despite a constitutional prohibition on re-election.

According to the UN Commission for Human Rights, other blatant cases of the erosion of judicial independence and impartiality exist in Nicaragua and Venezuela.

Conclusion: A Call to Preserve Judicial Independence

As democracy delicately balances the principles of majority rule and the protection of individual and minority rights, an unyielding, independent judiciary stands as its steadfast guardian. It is incumbent upon judicial members and society to relentlessly uphold and defend the rule of law against encroachment.

The unsettling developments unfolding in the Americas are not merely isolated incidents but are alarm bells ringing loudly to warn of democracy under siege. It is an alarm that must not be ignored, for preserving judicial independence is not just a legal imperative but a covenant of peace, freedom, and democracy that we hold with each other now and for generations to come.