Shadow Government

How to destroy a judicial system in three easy steps

The Organization of American States (OAS) just held its 42nd general assembly in Cochabamba, Bolivia. During the general assembly, Ecuador's President Rafael Correa, in a renewed attack against freedom of the press, sought to block the release the Inter-American Commission on Human Rights' (IACHR) report of press freedom in the Americas.

Freedom of speech is not the only right under fire from Ecuador's leader. For years, Rafael Correa has used all available government resources to concentrate governmental power in his hands. The result has been to hide crimes committed by him or his inner circle. Every time he attacks a journalist, nationalizes a TV station, or leaves unpunished people engaged in drug trafficking, Correa does so knowing that he manipulates the judicial system and intimidates his country's media.

Astoundingly, not long ago Correa said this on television: "The president of therRepublic is not only the head of the executive, but the head of all the Ecuadorian state, and the Ecuadorian state is the executive branch, the legislative branch, the judicial branch, the electoral system, the state comptroller... [and every other major function of the government]." Correa's strategy has been described by Ecuadorian constitutional lawyers as a "de facto coup d'état."

As an example, in May 2011, President Correa called for a referendum to restructure the Supreme Court. Correa's purpose was to dominate the court and the result of the referendum was the replacement of the system through which judges were appointed with a new system controlled by the president through the following mechanism: a new "judicial council" was established, composed of three members, one from the executive, one from congress (where Correa has a majority), and a third from the comptroller's branch -- which also reports to the president.  

Correa wasted no time: The new Council has already appointed all twenty-one new judges to the Supreme Court. To no one's surprise, fourteen of the new judges have been former Correa officials, relatives of current cabinet ministers, or peopble involved in controversial, pro-Correa judicial decisions. One of the latter, for example, is Wilson Merino, who as a lower court judge sided with President Correa in a sham defamation lawsuit launched by Correa against the newspaper El Universo. Merino not only ruled for Correa but awarded the president $40 million dollars in "damages." This sentence was later "forgiven" by Correa due to international criticism by international press organizations and the very Inter-American Human Rights Commission that Correa now wants to silence.

As a result of his sycophantic ruling, Merino was appointed to the Supreme Court. This was only possible because Correa shamelessly manipulates the judicial appointments process. This process establishes a series of requirements, qualifications, and tests that the candidates are required to pass in order to be selected. Wilson Merino did not meet the minimum qualifications, but since the three members of the judicial appointments council respond to Correa, Merino's final score was artificially increased, giving him the necessary points for appointment to the Supreme Court, as the president wished.

Freedom-loving Ecuadoreans, however, have not remained silent. Opposition congressmen such as Andres Paez have denounced the executive's manipulation of the judicial appointments system. Congressman Paez has identified at least seven additional judges that have been appointed by similar deceit. President Correa is now openly harassing Congressman Paez due to his public accusations. 

An international committee led by former Spanish Judge Baltasar Garzon oversaw the appointment process. Judge Garzon is expected to release a final report shortly concerning the process' transparency and legitimacy. Several members of Ecuador's national assembly have officially advised Mr. Garzon of additional cases of fraud and manipulation.

Correa is attempting to destroy the Ecuadorian judiciary system in three steps. First, he restructured the judicial appointment system in order to control it. Second, by using his control to designate his subordinates, such as Wilson Merino, to the Supreme Court. The third step is under way, and consists of legitimizing the process internationally. The success or failure of Correa's plan depends on Mr. Garzon's forthcoming oversight report and on the international reaction to this scheme. For the sake of Ecuador's liberties, it is necessary that defenders of democracy around the world raise their voices for freedom in Ecuador and that Mr. Garzon teach Correa the difference between representative democracy and autocracy.

Otto J. Reich is president of the consulting firm Otto Reich & Associates LLC. He is a former U.S. assistant secretary of state for the Western Hemisphere, and U.S. ambassador to Venezuela. Follow him on Twitter: @ottoreich

Ezequiel Vázquez Ger is an associate at Otto Reich Associates LLC and collaborates with the non-profit organization The Americas Forum. Follow him on Twitter: @ezequielvazquez


Shadow Government

Were U.S.- India relations oversold? Part II

Read more about the Indo-U.S. strategic partnership here. 

Critics of the  civilian-nuclear deal between the United States and India -- proposed in 2005 and ratified in 2008 -- have more recently charged that its supporters oversold the broader benefits of Indo-U.S. strategic partnership. Their critique has been given unearned momentum by the Indian parliament, which passed nuclear liability legislation that does not meet international standards, effectively making it impossible for U.S. companies to build civilian-nuclear plants in India.  Critics have also been emboldened by a certain drift in U.S.-India relations since 2009 -- for which both sides bear responsibility -- and by India's own lackluster economic performance, which diminishes its attractiveness as the pivotal U.S. partner in 21st century Asia. But these developments do not mean the relationship was oversold. The more accurate charge is that it has not yet been fully consummated. 

The Obama administration sent decidedly mixed messages to New Delhi upon taking office in 2009. Bush administration officials had argued convincingly that a shared appreciation for managing the balance of power in Asia was at the core of the U.S.-India entente -- music to the ears of leaders in a country that has still not recovered from the psychological scars of a war with China in 1962. However, early in their tenure, senior Obama administration officials reportedly told Indian counterparts that the United States was no longer "doing balance of power in Asia," while senior U.S. officials, including the president and secretary of state, gave credence for a time to the notion of a Sino-American "G-2" condominium in Asian and global affairs. 

This unnerved Indian officials who believed Washington had chosen New Delhi -- not Beijing -- as its privileged partner in rising Asia. Spurned Indian officials fell back on old non-alignment instincts and began speaking of "triangulating" between the United States and China. But events happily changed the discourse: China's militant assertiveness in 2010-11 reminded officials in Washington and across Asia of the growing danger posed by budding Chinese power. President Obama's self-declared "pivot" to Asia in 2011 moved the United States much closer to the Indian position of sustaining a regional equilibrium not tilted in China's direction -- a project of such immensity that India cannot achieve it absent close alignment, if not alliance, with the United States. Nonetheless, the early damage to a U.S.-India relationship whose central logic is rooted in the balance of power caused mistrust that still lingers.

More recently, Indians have been disappointed that the United States, after reassuring them for a decade that U.S. forces would finish the job they started in Afghanistan, will withdraw combat forces from Afghanistan through 2014. Beyond its intrinsic importance, Afghanistan was in fact a key test of the proposition that the United States, as a new strategic partner, could help India solve its toughest security challenge: the propensity of its neighbors to export terrorism into India, with state support. The Taliban's eventual return to control in at least parts of Afghanistan, as well as Pakistan's virulently anti-Indian security services as NATO forces draw down, will undermine Indian security in tangible ways. For many Indians, the United States' lack of staying power reconfirms old suspicions about American unreliability. It reinforces the conviction that India may have more to gain from collaborating with Russia and Iran to support Afghan groups committed to the Taliban's defeat than from relying on (and working with) the United States to do the job.

Americans, in turn, have been disappointed by India's apparent willingness, for a time, to risk its U.S. relationship over energy trade with Iran. The good news is that India has moved to reduce oil and gas imports from Iran, earning New Delhi a waiver from U.S. third-party sanctions set to take effect next month. This is particularly significant in light of India's energy-import dependence and its previous reliance on Iran as a top supplier. But American officials have spent precious time and energy over the course of several years urging India to cut back on its Iran trade -- time and energy that would have been better spent forging ahead on a wider agenda for Indo-U.S. cooperation, were it not for Indian reluctance to take American appeals to heart. New Delhi would have benefited more from early movement on this issue, rather than making a show of standing up to the United States even as India, out of concern for its own interests, systematically reduced its dependence on Iranian energy supplies.      

Americans excited about the rise to great-power status of the world's largest democracy have also questioned how India's passivity toward the Arab uprisings has served Indian interests, much less prospects for partnership with both Washington and reformist Arab regimes.  While India's election commission did assist in organizing Egypt's first democratic elections, New Delhi has been seriously behind the curve in Libya, Egypt, and Syria (though it has not blocked U.N. Security Council actions on the latter). It is Indian interests that suffer from such passivity, in the form of cool relations with post-revolutionary countries strategically positioned on its western doorstep. Such passivity has undermined the case, not just in Washington but internationally, that India is ready to provide global public goods and assume genuine responsibilities beyond its borders as a permanent member of the Security Council.

Nonetheless, over the past three years India and the United States have made quiet progress in consolidating their new relationship. India is the world's largest arms importer, and the United States is at the top of its list of defense suppliers -- notwithstanding American disappointment that India did not choose a U.S. fifth-generation fighter jet as part of its ongoing military modernization. Indian armed forces exercise more with U.S. counterparts than those from any other country -- a remarkable development for two countries that were on opposite sides of the Cold War divide. Intelligence-sharing is at historic highs; Washington and New Delhi cooperate more actively on counter-terrorism than ever before. The two countries are also more closely aligned on Pakistan as a result of the degeneration of the U.S.-Pakistan alliance over the previous three years. Perhaps most importantly, India and post-pivot America see eye-to-eye on the immense strategic challenge posed by China's ascendance; the Indo-American dialogue on East Asian security has been richly rewarding for both sides.

The hard truth is that Indo-U.S. relations would be better were India and the United States each doing better. India was a most attractive partner when it was growing at near-double digit rates annually, putting it on track to emerge as the world's largest economy before 2050. For many Americans today, India is a less attractive partner as economic growth slumps, the government stalls on key reforms necessary to unlock the economy's vast potential, populism trumps effective policymaking, and politicians seem unable to break partisan gridlock to govern effectively. Funnily enough, Indians could say exactly the same thing about America under President Obama.