The Shameless Corruption in Latin America is a Result of its Defective Democracy
Politicians in Latin America have enjoyed considerable immunity from corruption prosecution.
Corruption is a scourge that has historically plagued Latin America. Despite this, the world has been stunned by its depth and pervasiveness following the “Lava Jato” scandal.
It is not surprising that corruption is rampant in dictatorships, because as Lord Acton pointed out, “power tends to corrupt and absolute power corrupts absolutely.”
Therefore, it is more opportune to analyze why it is so widespread in Latin American democracies.
The root of the problem lies in the institutional arrangements established by our constitutions. They are drafted or reformed at the urging of politicians. Frequently, what drives them to do so is to serve their own corporate interests and/or supporters. Consequently, the citizen is not the center on which most of public policy centers, but the “state.”
The “state” is a euphemism for referring to politicians and bureaucrats. As an abstraction that it is, it is arbitrarily attached to characteristics that resemble a god. For example, “that it does not pursue profit but the common good.”
In the Latin American constitutions, the system of checks and balances – which is not the same as the separation of powers but another instrument to limit power – is organized in such a way that it is little more than a farce. That is to say, on the one hand, control-bodies are established, but on the other, all their effectiveness is removed.
As a an example, lets analyze how the Court of Accounts in Uruguay work:
In its institutional page, Uruguay states that “The Court of Accounts is the Supreme Audit Institution that, with technical, organizational and functional autonomy and in compliance with the Constitution and the laws of the Republic, exercises the control of the Public Treasury for the direct benefit of society.”
That is, an area directly related to possible corrupt practices. However, the Constitution establishes that the observations of this Court are not binding. That is, there is not mandatory compliance. Thus, there is no real consequence for departing from the established norms. It is up to the public official to comply with the court’s findings.
Parliament also exercises a control, but here the structure is designed to make it difficult to eradicate corruption, because if in 60 days there is no express pronouncement on the part of the legislative branch, the Constitution gives power to the legislative branch, as opposed to the Court of Auditors. It’s completely lacking in common sense.
That means that in practice – with the approval or omission of the “representatives of the people” – the officials of the different state departments with decision-making power over budgets, spend public money at their own pleasure. In the end, it provides great encouragement for corrupt practices to spread.
Possibly due to this failure in its work as comptroller, this court is seeking to be “recognized as an effective body in the control and improvement of the management of the Treasury.”
Will Uruguayan politicians be taken for granted? Because in this matter there are no disputes between the right and the left. Everyone is very satisfied with this state of affairs.
As a result of Lava Jato that shook the continental panorama, some political parties decided to “send a signal” to the citizenship, passing laws mandating transparency in the financing of electoral campaigns. But beware, that those who made the laws also committed the offenses.
An example of how Latin American politicians routinely operate dates back to 2008 in Uruguay, when legislators passed a law on the financing of political parties. The Electoral Court was designated to have control, but it was not endowed with the manpower or funding to be able to exercise such control.
The Court sent a note to the appropriate Senate Committee, warning that “it will be impossible for it to fully comply with the assigned tasks” of the new law on party financing, “if, in parallel, technical, human and material resources are not allocated for that purpose.”
What was the result of their warning? Total indifference.
Again we note that the comptroller role within the democratic Latin American nations, is but a shadow of what a true comptroller should be.
The tactic of economically suffocating the organs of the comptroller as well as the judiciary is intimately linked to the spread of corruption and impunity.
Something is badly conceived in our democratic systems when the legislative and executive branches control their own budgets but the judicial branch, whose independence is vital to fight corruption, especially that of the “big shots” (as we are witnessing in Brazil), is in the hands of other public authorities.
In Uruguay, the constitutionally established procedure for the approval of the budget is in the hands of the judiciary. It must be sent to the executive branch, which can modify it, and then to the legislature, who will discuss it regardless of the opinion of the judiciary.
In Peru, the budget receives a similar treatment: first it heads to the executive and then the legislative branch. Thus, the ability of the Peruvian judicial branch to function properly depends on the “good will” of the other branches of government.
It does not seem the most appropriate mechanism to ensure the independence of judges and that they can act with integrity against the powerful.
The “package” of impunity includes other constitutional measures that “protect” the authorities from justice.
A report by the Center for Economic Studies of the University of Münich, published in 2013, points out that the Mercosur politicians (Uruguay, Paraguay, Argentina, and Brazil) have the highest degree of protection against jail and judicial processes. The study was based on the analysis of the constitutions of 73 democratic countries of the world.
The benefits that the legislators, ministers and presidents possess include not allowing the initiation of a criminal trial without the corresponding impeachment or political judgment as the case may be.
This reality led Jorge Díaz, Attorney General of Uruguay, to express that they should eliminate or limit “parliamentary immunities” that protect politicians while they are legislators. He clarified that the legal privilege that politicians have over “crimes of opinion” should be maintained to protect them, but that, “society is clamoring for them to be punished more severely” for corruption offenses, which are currently also protected by parliamentary immunity. “We have to eliminate the obstacles to justice when it comes to accusing and punishing public servants.”
What Latin Americans are demanding is that they “democratize” democracy. That is, that our constitutions be designed to protect the citizens and not the rulers. That the benefits that shield politicians from the action of the courts disappear. That the control bodies are equipped with effective tools to combat corruption.
The change of democratic paradigm in Latin America promoted by Judge Moro in Brazil, doing away with the traditional impunity of politicians, is what has puzzled the Latin American rulers. It is also what worries them.
That is why they whisper among themselves: “We never imagined that this would go so far.”