Legal autocracies under the guise of “democracies”
From the rise of recent autocracies, from Hungary to Brazil; to the growing challenge of legitimacy confronting international institutions; and even to a failed insurrection at the steps of the U.S. Capitol; we are witnessing a true decline of democracy that is tied to the inherent malleability of law. Robert F. Kennedy Human Rights is committed to the monitoring and protection of civic space, democratic governance and government accountability. It is clear to us that one of the main problems is that the law is being used as a tool by different actors (i.e. political leaders), to advance their interests and to concentrate power, rather than to preserve and to promote democracy, the rule of law, and human rights. In short, when devoid of content and covered by pure formalities, the law has offered autocrats a subtle vocabulary and set of practices that has been used to validate their own anti-democratic agenda. A playbook, if you will.
Guatemala’s congress has recent passed laws granting impunity to its members for corruption, avoiding accountability and threatening judicial independence. In El Salvador last year, president Bukele won control of the legislature, and on the first day replaced the Constitutional Chamber of the Supreme Court with loyalists. According to the Democracy Index only half of the world’s population currently lives in some form of democracy.
This phenomenon is often described as “autocratic legalism,” when autocrats use the law to consolidate power and remain in office indefinitely. It describes a set of legal and institutional reforms, and a slow but secure dismantling of liberal constitutions, where the scaffolding of the rule of law remains standing, but is completely devoid of meaning. Legal autocracies typically follow “a revolutionary election” with the democratic victory of a charismatic leader, an outsider who promises reform and change, but who then uses his democratic mandate to shred the inherited constitutional system. To be clear, legal autocrats use democracy and the rule of law to obtain one main aim: to remain in power indefinitely through the removal of democratic institutions.
According to the Democracy Index only half of the world’s population currently lives in some form of democracy.
The first line of attack is the manipulation, and the “rewriting” of the constitution. In practice, modern autocracies take constitutions very seriously, because they understand that a constitution is the framework under which each government is legally obliged and allowed to act . This is why generally, after winning popular elections, the first thing that a legal autocratic regime will do, is to change the constitution and to begin to make adjustments to the entire legal system. From the outside looking in, and in accordance with general indicators, these adjustments may appear to be legitimate, but once they are studied more closely, legal maneuvers are revealed that expose the true authoritarian traits and abuses of the regime.
Venezuela, a country that until 1998 had been the longest continuous democracy in South America, but is now an autocratic legalist regime. After obtaining a politically upsetting victory over his rivals and the establishment parties in the country, Hugo Chavez’s first move was to modify the structure of the State, by calling for a Constituent Assembly to create a new constitution. This caused a period of profound instability and institutional transformation that would impact all of the existing powers, and that allowed the regime to consolidate its control through a specific legal design. Once the new constitutional framework was put into place, the next step was to fill the judiciary with loyalists and sympathizers to maintain and further the regime’s hold on power. The regime took over the judicial branch completely by creating the new Tribunal Supremo de Justicia, which replaced the former Supreme Court, and throughout the years, appointed loyal justices and judges in the lower courts, giving the regime total control over the judicial system, and given that the legislative branch was also co-opted, any checks on the executive were effectively removed. After more than twenty years, it is safe to say that Venezuela no longer qualifies as a democracy; and that as a direct result of these laws and reforms, it has clearly become a failed state.
Not all autocratic governments follow the same trajectory, nor do they share the same history. But they do share similar goals– to consolidate power, and to corrupt liberal democratic ideals. Most importantly, they seem to use the same tools to pursue these ends. In fact, their most harmful practices are shared and imported into other autocracies, which then adapt them to their own local systems and realities.
What is even more worrisome is that authoritarian regimes have created an international network of support that allows them to bypass international regulations, diplomatic pressures, and economic sanctions.
Take for example the maneuvers that authoritarian regimes use to close civic space in their countries by, for instance, making it illegal for NGOs to obtain foreign funding. In 2015, the Russian Foreign Agent Law banned NGOs that it considered to be a threat to national security. In 2017, Hungary passed a bill regulating foreign-funded NGOs that was then repealed after being declared incompatible with EU-law. In 2021, Poland also drafted a law targeting civil society organizations that forced them to declare any foreign funding. In 2020, Venezuela passed a new law that requires NGOs to fully disclose information about both their beneficiaries, and their donors on a government platform. The law, as stated by the Venezuelan regime, was created to “fight terrorism and organized crime.” Nicaragua, by September 2021, had over 45 Civil Society Organizations’ legal status revoked, based on legal instruments, such as the “Foreign Agent Law” and the law against money laundering, among others. India is yet another example of autocracies that use law to close civic space and silence CSOs. The government plans to develop a national policy to regulate NGOs in the country. In 2010 the Foreign Contribution Act was revised to include registration requirements and spending restrictions on local CSOs receiving foreing donations. In 2020 further restrictions were added, among others, a pre-approval requirement by the Ministry of Home Affairs. These are just a few examples: many more could be added from a list of growing autocracies from around the world.
One way to counteract the highly effective coalition that authoritarians have built, is to underscore their autocratic maneuvers with an even stronger, coalesced civil society, and a strong network of true democratic governance. But civil society cannot do this alone, democratic governments must take the threat of autocracies seriously and find ways to respond together with firm and concerted actions. This includes attacking the economic links that national actors may have with autocratic regimes, and a sharp revision of international institutions, to endow them with the tools needed to fight this modern form of authoritarianism.
Ultimately, we must understand the key warning signs and risks of “autocratic legalism,” be prepared to denounce it whenever and wherever it appears, and most importantly, to educate ourselves about the subtle legal tools that are currently being used by autocratic regimes around the world. For these reasons, RFK Human Rights will continue to work alongside local partners to monitor and to engage in the protection of civic space, political liberties and human rights around the world. We will continue to campaign and advocate for policy and legislative change, and to implement strategic litigation at the regional and universal levels, as counteracting tools against autocratic regimes.
Ultimately, we must understand the key warning signs and risks of “autocratic legalism,” be prepared to denounce it whenever and wherever it appears, and most importantly, to educate ourselves about the subtle legal tools that are currently being used by autocratic regimes around the world.
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