Powerless to Withstand Attacks

For me, saying that the court is in the ‘weakest’ position is not only about enforcing decisions, but must also be interpreted as ‘weakest’ in terms of maintaining independence. The more independent a court is, the stronger the desire of outside parties in contact with the court to tear it down. Once again, history displays a showcase of factual variants of how courts are often powerless to face attacks on their independence. The methods vary, but the target is one: to make the court lose its independence.

Very interestingly, Levitsky and Zibblat (2019) in the book “How Democracies Die” reveal the tragedy of weakening judicial independence in a number of countries in Europe and Latin America. The most extreme way is to eliminate or dissolve the court, then establish a new court. This happened in 1999 in Venezuela. President Hugo Chaves gave himself the authority to dissolve state institutions, including the court. Fearing dissolution, the Supreme Court agreed to declare Chaves' actions constitutional. The Chief Justice of the Supreme Court, Cecilla Sosa, resigned and stated, “the court has committed suicide so as not to be killed.” But that didn't help. The Supreme Court was dissolved, and Chaves formed the Tribunal Supremo de Justitia. The number of judges was increased from 22 to 32. Chaves filled the judge positions with his loyalists. As a result, for 9 years there were no decisions against Chaves.

Another way is to replace judges who are at odds with his allies. In Argentina, in 1946, during the time of President Juan Veron, four out of five Supreme Court justices originated from the opposing camp. To secure Veron, Veron's allies in Congress impeached three judges for alleged violations of the law, while another judge resigned before being removed. Veron appointed four of his loyalists as judges. After that, the court never opposed the Government. In Hungary, Prime Minister Viktor Orban controls a number of important state institutions, including the Constitutional Court, by placing his people in them. Orban appointed his chosen people to fill the positions of judges in the Constitutional Court. This is strong enough to limit the court's ability to oversee Orban's power.

During the time of President Alberto Fujimori, law enforcers, including three Supreme Court justices and two Constitutional Court justices, were 'bought' by sending them monthly payments in Peru. In 1997, Fujimori wanted to proceed to a third term as president. The Congress, filled with Fujimori's allies, removed three of the seven Constitutional Court justices. The reason was that the judges who said Fujimori was avoiding term limits according to the constitution were acting unconstitutionally, which was a violation of the constitution. It was different in Colombia in 2015. President Nicholas Maduro used the Constitutional Court, which was full of his loyalists, to paralyze the legislative body. And indeed, the Constitutional Court made rulings that were detrimental to Congress 24 times in 6 months, namely, repealing laws that had been approved by Congress.