Of Judges and Generals: Security Courts under Authoritarian Regimes in Argentina, Brazil, and Chile

The Leviathan's Rule by Law

“…While until recently "few academic studies have taken the law and legal institutions under authoritarian regimes seriously" (Pereira 2008), no one denies that the law and courts play an increasingly important role in many nondemocracies. In China, for instance, the number of first-instance cases adjudicated by courts soared from 513,789 in 1979 to 8,442,657 in 2012.…”

“…In searching for a theoretical explanation, Ginsburg and Moustafa identify five major functions courts serve in nondemocratic states, besides routine dispute resolution, that is, establishing social control, bolstering regime legitimacy, disciplining agencies, promoting economic development, and implementing controversial policies (Ginsburg & Moustafa 2008). Illustrative examples include the special courts employed by military dictators in Latin America to maintain political control and suppress opponents (Pereira 2008) and the highly professional and respected courts established by the PAP in Singapore to handle cases of an apolitical nature (Silverstein 2008).…”

Judicial Autonomy in Central America

“…In the case of Mexico, it has been argued that the PRI (Partido Revolucionario Institucional [Revolutionary Institutional Party]) regime maintained a judiciary that was strong enough to enforce the will of the government over its subordinates but too weak to allow citizens to enforce their rights against the government (Magaloni 2008). In the Southern Cone, the authoritarian regimes were able to use military courts to wield immense, unfettered power over opponents of the regime while maintaining a largely independent judiciary otherwise (Pereira 2008). In Costa Rica, the introduction of a powerful constitutional chamber has actually increased the power and prestige of the Congress as well (Wilson 2005).…”

“…The judiciary may function for nonpolitical disputes, but disputes that affect the military, the government, or the connected often are excluded from the regular judiciary. In some countries, sensitive cases are assigned to special courts, as happened with the revolutionary Sandinista tribunals in Nicaragua in the 1980s and the security courts that were common in the authoritarian periods in the Southern Cone (Pereira 2008). Other authoritarian regimes have preferred to not adjudicate sensitive cases in any way; Guatemala in the early-1980s is one example.…”

The Paradox of Rule of Law Reforms: How Early Reforms Can Create Obstacles to Future Ones

“…The breakdown position could also explain the judicial reform in Brazil, as the judicial branch did not have much to lose by simply maintaining the status quo: the Brazilian judiciary was one of the most independent in Latin America during the military dictatorship. 68 In the Brazilian case, moreover, the judiciary's preferences are particularly relevant, because Congress delegated most of the judicial reforms of the 1988 Constitution to a group of experienced legal actors that included members of the judiciary, the Brazilian Bar Association, and human rights groups. 69 As a consequence, members of the judiciary were able to negotiate the reforms directly with other interest groups, as the politicians with voting power were not interested in judicial reforms and were likely to defer to the decisions of this group.…”