Dictators Love It – Citizens and Investors Don’t: Emasculating the Judiciary

  

Tens of thousands of Israelis protesting Netanyahu’s efforts to subjugate the judiciary to a political override (Spring 2023) 

Mexican protesters attempting to block a legislative vote to require only elected judges

"The party with the majority could take control of the judicial branch, and that would practically be the end of democracy… They want to own Mexico." 

Protester Javier Reyes, a 37-year-old federal court worker.

If a dictator or dictator wannabe cannot directly take over all the checks and balances that could indeed limit his power – effectively ruling as a complete autocrat – then the next best thing is to declaw the judiciary’s power over him… usually under the pretext of returning control of the judiciary to the people or their elected representatives. This limited control over the judiciary allows the autocrat (real or wannabe) to pretend to be in a democracy. And it is the modern trend of seemingly democratic nations moving to elect “strongmen” where I am focused today.

In the middle of a corruption trial, long before the Gaza attack, PM Benjamin Netanyahu sought to allow the unicameral Knesset (Israel’s parliament) to override judicial decisions. Israel also has never enacted a constitution. As Netanyahu’s coalition controlled the Knesset, we all know the PM’s obvious intent. The images above left show how dramatically unpopular Netanyahu’s reform efforts were with Israelis almost everywhere, but his ultra-rightwing coalition seemed ready to defy these popular sentiments.

Of course, the October 7, 2023, brutal attack on innocent Israeli citizens and the massive subsequent Israeli counterattack, which seems to have resulted in the deaths of over 40,000 equally innocent Gaza civilians, gave Netanyahu a rallying point to get the Israeli population behind him… and the continuation of that war allows Netanyahu to delay his trial and perhaps get that right to override the courts. Or not.

In Hungary, a member of both NATO and the European Union, autocrat Viktor Orbán has spent considerable time (well over a decade) and effort to reorganize his nation’s judiciary to the point of total subjugation to Orbán’s will. In the fall of 2022, Áron Demeter, program director at Amnesty International Hungary, said: “If you go against the government or your case interferes with political goals, there is definitely a chance that [the government] can put either formal or informal pressure on the court.” Orbán used courts to bankrupt and arrest his political opponents, to silencie critical media entities, which have been conveniently resold to Orbán’s cronies.

We tend to expect less from developing countries, especially those lacking in a history of democratic representational governance. That’s bad enough when it occurs far from our shores, but under Mexico’s populist President Andrés Manuel López Obrador, whose is termed out on Oct. 1, we have a neighbor nation that finds having an independent judiciary abhorrent. Under the guise of fighting corruption, Obrador is getting rid of existing judges to be replaced in an election. Since the power that sweeps in a new Mexican President into office, especially in this era of autocratic populism continuing under an increasingly false mantle of democracy, the winner of that national election will effectively sweep his/her chosen judges into office too. Put another way, it is overwhelmingly likely that whatever this populist regime wants to happen will never be opposed by partisan judges.

Obrador’s successor, Claudia Sheinbaum, is seen as an extension of his legacy. As Obrador convinced his legislature shortly before the end of his term to implement that judicial election format, the Wall Street Journal (September 15th) noted: “The main concern among investors is that by replacing all of the country’s federal judges and Supreme Court justices through elections, the ruling Morena party will have control over all three branches of government, compromising the independence of the judiciary and eroding the system of checks and balances. Under President Andrés Manuel López Obrador, whose term ends on Oct. 1, the courts blocked a number of government actions that favored state energy companies over private operators. Many fear they may no longer have that recourse.

“Investors also anticipate an increase in international arbitration and disputes under the U.S. Mexico Canada Agreement, which comes up for review in 2026. The trade pact has been key to foreign direct investment decisions and to Mexico becoming the biggest foreign supplier of goods to the U.S.

“Moody’s Ratings said this week that the overhaul could be particularly damaging to prospects for nearshoring and private investment in infrastructure, which President-Elect Claudia Sheinbaum is banking on. The proposed elimination of independent regulators, including the energy and antitrust commissions, adds a further layer of concern.”

The official US position is most definitely negative. Having this instability in one of our greatest trading partners, a huge source of our imported manufactured goods and agricultural products, is troubling. We should remember that having a reliable Mexico is an essential ally in securing our southern border, today not so much from Mexican residents who are only a minority of those seeking entry into the US, but mostly Central Americans fleeing their violence-prone nations as well as immigrants from other nations all over the world.

Yet even as we cast a worried eye to Mexico and its loss of a truly independent judiciary, we have our own country as an example of a “dictator on day one” who plans on weaponizing the Departments of Justice and Defense against a critical press, his political opponents, and anyone he believes might be an undocumented alien, even the Dreamers who have never lived anywhere else. All this is possible from the same Supreme Court that reversed Roe v Wade and has allowed states to chip away at voting rights, particularly those likely to vote for Democrats. Justice may be one of Donald Trump’s early swamp-draining targets. An independent judiciary is his enemy.

If reelected, Trump would have the ability to further extend his rightwing populist mandate for decades, simply by allowing the elder conservatives on the Court to retire (in fact as to all federal courts)… and replace them with exactly the kind of judges he appointed the first time around. Young, and since they are appointed for life, likely to remain justices for decades. Oh, and then there’s the Supreme Court’s immunity ruling… giving Trump effective prosecutorial immunity (short of an exemption from impeachment and the impossible hurdle of Senate conviction) for all actions in his “official” presidential capacity… a word that is both left underdefined with a strong sentiment to keep presidential communications to federal officials away from prying judicial eyes.

I’m Peter Dekom, and if you care about having the possibility of a return toward an independent judicial system, know that your vote on November 5th may determine that result.