With Latin America’s admirable strides over the recent decades to consolidate democracy, elections are now firmly ensconced in al-most all of the nations. Citizens throughout the Americas can freely express themselves and seek chan-ge through the ballot box. However other core issues for democracy re-main fragile. Some of democracy’s critical institutions grounded in the rule of law are increasingly considered expendable by political leaders. Actions frustrating the fun-damental canons of justice, fairness and consistency upon which de-mocracy is built are surging. These actions have done considerable da-mage to the prospects for democra-cy and, especially, to the objectives of the Inter-American Democratic Charter.

Respect for the rule of law is cen-tral. It means consistent laws upon which citizens can rely, laws that cannot be changed arbitrarily, laws that can be appealed to a judiciary insulated from political pressures, laws that allow citizens to make de-cisions about their lives in reliance that such decisions cannot retroac-tively be declared illegal and, fina-lly, laws that enforce accountability among those entrusted with the public business. Benito Juarez, the founder of modern Mexico, encap-

Democracy, human rights and the rule of law in the americas

sulated its essence when he said, “Respect for the rule of law means respect for the rights of others”.

The rule of law constitutes the ironclad firewall for the values of fairness and accountability that ensure social trust, without which democracy cannot function. The weakening fabric of the laws marks a major challenge for the advoca-tes of democracy. Leaders such as Hugo Chavez and Daniel Ortega blatantly dismantle the institu-tions of accountability while other countries disregard the integrity of freely entered into contractual obli-gations. Too often American gover-nments have made commitments to the integrity of the judiciary only to

Ronald Scheman*

Chanllenges for the Latin American democracy network

Benito Juarez.

have successor governments negate that commitment by shamelessly manipulating judicial appointments for political ends.

The foundations of respect for the rule of law have deep roots in human history. From Hammurabi and Cicero to the Bible and Ema-nuel Kant, from DeToqueville to Jose Marti, justice and respect for others are seminal values. Hammurabi’s Stella four millen-nia ago depict the God of Justice, Shamashand, at the apex. They set forth the first known laws to protect the weak from oppression and ensure justice for his people. The Constitution of the United States proclaimed that the foremost reason for which governments are constituted is to establish Justice. The Bill of Rights enshrined rigid restrictions to prevent abuse of the law by the majority trampling the rights of minorities. The Declara-tion of Independence indicted King George for having “obstructed the administration of justice by refu-sing his assent to laws for esta-blishing judiciary powers…and… made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries.” Blackstone, in his famous commentaries on the law, signaled the supreme danger. “If it is left to the power of the hig-hest magistrate,” he declared, “to imprison arbitrarily whomever he

or his offers thought impro-per, there would soon be an end of all other rights….To bereave a man of life or by sentence confiscate his pro-perty without trial would be so gross and notorious an act of despotism as would at once convey the alarm of tyranny throughout the kingdom.”

Alex DeToqueville, in his trenchant commentaries on American demo-cracy, pointed out that democracy thrives only in societies that engen-der trust that justice will be fairly administered. This, he said, means an independent judiciary whose continuity is firmly embedded in the Constitution. Constitutions that are subject to constant change pro-vide scant assurance of consistency that is the principal objective of a rule of law.

Fareed Zakaria, one of the today’s leading political observers, empha-sizes the rule of law as the heart of liberty. He observes that democra-cy is “not about the procedures of selecting government but, rather, the government’s goals…to protect an individual’s autonomy and dig-nity against coercion whatever the source – state, church, society…It places the rule of law at the center of politics…It is symbolized not by mass plebiscites but by an impartial judge.”

The trust of the governed and survival of democracy requires consistency in its legal framework so that lawful actions today do not arbitrarily become unlawful tomorrow. Trust in the fairness of a society means that citizens must have confidence that government is accountable, that it takes into account the interests of all sectors of society, and that it cannot violate

the integrity of the legal institutions that ensure protection of minorities.

To be clear about the core problem, however, arbitrary government action is but a symptom of our challenge, not a cause. The cause reaches deep into the attitudes and ethics of our society. It relates to weak systems of education and neglect of effective enforcement of accountability. It is rooted in wi-despread participation in corruption and failure of many sectors of the citizenry to obey laws they consi-der inconvenient.

Heavy responsibility for this state of affairs is borne by suppo-sedly respectable elites and the private sector. Their failures perva-de and corrode a society in insi-dious ways. The foremost principle is that anyone who disregards the law tacitly gives permission to everyone else in the society to do the same thing. The example of the private sector must impeccably demonstrate responsibility to obey the laws of the society. The trust at the core of democracy is inevitably undermined by bribing legislators and government officials or chea-ting on taxes. Self-serving actions to condone deceptive accounting practices or disregard the rights of minority shareholders undermine free markets and contribute to the contagion. Corporate social respon-sibility means, primarily, pay your taxes, insist that your government respects an independent judiciary, refrain from to bribery and play fair with your shareholders and the public.

Curtailing corruption is not a matter for government alone. All corruption has two inseparable parties, corruptors and corruptees. When poor people observe the privileged engage in corruption or

cheat on taxes, it corrodes the trust that is vital to confidence in the fairness of the society. The ethics of a society then disintegrates further as they too want a piece of the action. The popular Telenovelas disseminate the story. Everyone cheats on everyone else. Spouses cheat on each other, husbands cheat their businesses; business partners cheat the government; employees steal from their employers, maids steal from the household; local bullies steal from the maid.

When public officials or emplo-yees have little fear of being held accountable, human avarice and greed are irresistible. Ironically the private sector itself is a major victim of its own failure. Studies of purchasing agents for major mul-tinational companies demonstrate that the same corrupt practices permeate their own companies. A corporate culture of self-aggrandi-zement, lack of integrity and lack of loyalty prevails.

The Rule of Law and Democracy

The major dilemma for democracy is the inequities that continue to pervade our societies. Too often the law reinforces the inequities instead of redressing them. Only effective representative democracy has the legitimacy to address this issue. The solution is intrinsically tied to the procedure by which laws are adopted. Who makes the laws and how they are selected is the essence of trust in the law. Repre-sentative democracy requires that legislators place the highest regard on representing the needs of their constituencies. Legislators that pla-ce personal aggrandizement ahead of respect for their Constitutional obligation bear the highest level of guilt of subversion of democracy. It matters not whether a law re-

sults from arbitrary authoritarian power, from a corrupt legislature or an electoral systems controlled by small elites, all are prima facie suspect.

Over the last several decades the Inter-American Development Bank, World Bank, UNDP and U.S. AID have spent hundreds of millions of dollars to refine and strengthen judiciary systems. Through these carefully crafted efforts the seeds of a new ethic of justice are being sown and the pre-cepts of the rule of law are gradua-lly permeating the consciousness of the citizens. However the prin-cipal burden that impels a society toward genuine respect for human rights and economic development rests primarily with the values and attitudes of its citizens and, most of all, its controlling elites.

In short, sustainable democracy requires accountability under a consistent rule of law. The insti-tutions of the law must exist; they must be effective and they must be respected. Responsibility for this rests squarely in the hands of the people of a society. The pres-sing question for us in the Latin American Democracy Network is what, as a practical matter, we can do to achieve this goal. I would offer three suggestions. First is education. The heart of our challenge is to educate and gain acceptance among the citizenry that the administration of justice is paramount. Young people need to be exposed to civics and human rights educa-tion from their earliest days in school. The Democracy Net-work can form country com-mittees to review educational curricula to assure these princi-ples are included and inviolate.

Second the constitutional bases for an independent judiciary must be sacrosanct from change. Manipula-ting the foundations of justice must be protected in the process of chan-ging constitutions. Constitutional provisions that affect the judiciary must be adopted by a super majo-rity to survive changes by rapidly called and untutored constitutional conventions. Third a concerted effort must be undertaken to streng-then the Inter-American Democra-tic Charter to address subversion of the institutions fundamental to democracy from within. The Charter has proven inadequate to address the evolving techniques of autocrats to undermine democracy. Most important, it should be able to be invoked when action is taken to dismantle fair judicial protection.

The dedicated people participating in the Democracy Network give us a strong base to address these com-plex problems. As many colleagues have pointed out, there are no easy answers. Let us embrace this discussion and welcome all ideas on how most effectively to address the issues.

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