Dr. Yasmin Calmet

Latin American political systems have long been plagued by structural issues like patrimonialism, clientelism, fragile institutions, and volatile political parties. These challenges have ignited continuous debate on how to best reform these systems and uphold democratic values such as the balance of powers, justice, and respect for fundamental rights.One notable phenomenon in some countries is the concentration of power in the Executive branch, which has led to political crises and placed the Legislative branch on the defensive, creating continuous clashes between the two powers. This dynamic hampers governance and blocks policies aimed at social, economic, and political progress. On the other hand, in recent legislatures in Brazil, the House of Representatives and the Senate have increased their influence over the Executive and the federal budget. It is important to note that in a democratic system, each branch of government is autonomous and should exercise a specific function, but this power must also be checked by the others.In this context, the Judiciary's growing role in political decision-making could undermine fragile democracies, where 'juristocracy'—a concentration of power within the courts—has become prevalent. In other words, the Judiciary is exercising greater constitutional control by ensuring that the laws and actions of the other branches comply with the Constitution, thus preventing violations of fundamental rights. This has given the Judiciary a prominent role in political decisions, going beyond its traditional function of resolving legal disputes and limiting the role of elected representatives.For example, in Brazil, the Supreme Court has acted to block the implementation of laws that contradict constitutional principles, many of which are related to cultural norms or the weakening of environmental protection regulations. In this sense, juristocracy can be seen as a consequence of the dysfunction of the other branches.However, the Judiciary’s actions have also raised questions about its legitimacy and impartiality, as judges on Constitutional Courts are appointed by the President or the Senate president. This raises concerns about whether the Judiciary's loyalty lies with the people or with powerful interest groups, as has been observed in countries like Mexico, El Salvador, and Ecuador.One proposal to improve the political system and prevent this imbalance of powers is to introduce reforms, such as adopting parliamentary models and holding popular elections for judges and magistrates of the Constitutional Court (or Supreme Court). In countries like Mexico and Peru, the latter proposal has been considered a viable alternative for reforming the system and strengthening democracy. However, such proposals are controversial and could worsen the political crisis rather than solve it.In Mexico, this reform has already been implemented. On September 11, the Senate approved a judicial overhaul, mandating the popular election of more than 7,000 judges and magistrates—a move that has sparked protests and financial volatility, reflecting the deep divisions over its implications for judicial independence and democratic integrity.Civil society and the political class are divided over the consequences of this change in the rules of the political game. Some see the reform as a political strategy to maintain executive power by weakening judicial oversight. Others believe that democracy will be strengthened, as the reform could reduce judicial corruption and increase citizen participation in politics.To evaluate whether these changes will truly enhance democracy or threaten the rule of law and further harm the relationship between the three branches of government, it is necessary to consider the process of selecting magistrates. First, it is important to assess how the population will access information about candidates for the Constitutional Court, as few people have access to detailed profiles of the candidates, and there is little interest in investigating their backgrounds and qualifications. This situation could lead to greater distortions in the selection of court members, allowing populist candidates without the necessary qualifications to assume high-level positions.Second, there is a high possibility that political groups linked to organized crime, religious institutions, or economic sectors will elect candidates who serve their interests, deviating from the ideal of representation and the needs of the citizens.Third, although the reform aims to eliminate nepotism and corruption by adopting a more impartial system, direct voting does not always guarantee these conditions. Patrimonialism and clientelism are deeply rooted cultural and structural characteristics in Latin America. Additionally, loosening the requirements for candidacy does not ensure that candidates will be impartial or suitable for the position, nor does the required letter of intent guarantee that they will fulfill their promises or perform their duties adequately—just as frequently happens in Executive and Legislative elections.Finally, on the international stage, the reform could impact trade and political relations. The United States and Canada have already warned that the reform could harm the trade agreement between the three countries because they do not trust the proposed system. If this reform spreads to other Latin American countries, it could lead to more politicized judiciaries, escalating internal political crises, and further eroding judicial independence—threatening the region's already fragile democracies.

How Recent Judicial Reforms Threaten Democracy in Latin America