Democracy is losing its substance? I would agree

Some pieces of information, from the Brazilian perspective.

The Judiciary here benefits from an institutional design that grants

It is obviously a "legal tool" used in a political conflict to eliminate an oppononent that is politically stronger than the ones in power. Since the ones in power cannot win the political conflict by building political and social hegemony around their project they recurr to the use of the "legal" instruments they control. I am not sure that "democracy" is losing its substance... this suggests that liberal democracy has been "democratic" at some point or has had democratic substance. History shows us that is did not. Liberalism and democrcy were fierce enemies for hundreds of years. Liberal democracy was the result of limiting democracy to the political sphere, excluding democracy from the economic and social sphere. Moreover democratic rights were not granted per se by liberal democracy, but a consequence of fierce struggles. And last, whenever people have been to serious about claiming democratic rights in liberal democracy, liberal democracy has had no problems in responding with fierce represssion, as the tanks and armies in the streets of France and other countries in 1968, or it forced people by repeating elections to vote for what the ones in power considered right.

As to the way I see it, the question is begging for an answer that condemns the lack of independence of the judiciary. I will not provide such an answer. For one, if the courts took into account the fact that Lula is the front runner or that Catalan leaders were 'victorious' (they were not, none of them was in the most voted ticket), then clearly these courts would not be independent. So with decisions that have important political implications, the courts can be critisised for their lack of independence, no matter what they rule. Fow two, it is quite difficult to know the 'motivations of the courts', perhaps it may be easier to answer whether the charges have some legal backing or not, and although both the decisions of Brazilian and Spanish courts are debatable, they are not the best example of the lack of such a backing. And for three, obviously no trend can be inferred from an N of 2.

Do you ever read newspapers or look at electoral results or polls? Doesn't look like.... the cases are not 2 but dozens... the Catalan independists won the elections and won again even after Spain forced new elections, dissolved the government, had voters in the referendum beaten up, imprisoned 10 political leaders, intervened institutions and regional TV.... an Lula is the PT candidate for the presidential elections and leading in all polls...

I regret the tone this is acquiring. I apologise to the extent this is my fault.

My goal was to point two things. One, the issue of whether the courts are becoming more influenced by political motivations is certainly a very interesting one, but we would need to consider more cases to establish whether there is a trend or not.

Second, while some decisions taken by the courts have important political implications, it may be dangerous to argue that courts should never take such decisions in the face of political implication. Political support cannot provide a free bonus for politicians to break the law.

This may or may not apply to the Brazilian and the Catalan case, I did not comment on that. And certainly I did not deny that Lula is leading in all polls. The issue about who won the elections in Catalonia is more nuanced. Independentists lost the popular vote, but won in seats. This difference is due to the electoral system. They may take advantage of their lead in seats to govern in Catalonia within the boundaries of the powers of the regional government (this is the extent to which the electoral system is relevant) not beyond them (the electoral system has no bearing beyond those powers and their loss in the popular vote becomes the most salient result then). Incidentally, the regional TV was not intervened, but this is not extremely relevant for the issue at hand.

I hope that my apologies and my clarification help to reconduct the debate to a fruitful exchange of opinions that contributes to the better understanding of the important issue of the political independence of the courts. Best,

Andrés

OK...

There is a debate on the extent to which the courts in Spain and Brasil are 'politically motivated' in these cases.

There is an acceptance widely that the judiciary should be separate from the executive.

But in relation to Lula and in relation to Catalonia we have, I think seen the judicialisation of politics to put it that way.

These are highly political moves being made by the juidiciary whether they intend it, whether they are responding to a deep state or something like that, or not

One way or another it needs careful critical deconstruction I think?

On the relationship between the courts and politics we may ponder this latest news from Spain:

A Spanish supreme court judge on Tuesday refused a request to free Sànchez, who is also an MP for the Together for Catalonia party of the deposed Catalan president, Carles Puigdemont.

Judge Pablo Llarena said he would not release the politician on the grounds that he could once again try to push for unilateral Catalan independence, adding that Sànchez had played a major role in “the mass demonstrations that favoured a social uprising”.

Gauri van Gulik, Amnesty’s Europe director, said that while Llarena could have used the opportunity to release Sànchez, he had instead aggravated an existing injustice.

“The extension of Jordi Sànchez’s provisional custody constitutes an excessive and disproportionate restriction on his right to freedom of expression and peaceful assembly,” she said.

The Guardian

One of the problems in Brazil is the role of "investigating" judges who can set in motion massive investigative operations, like Lava Jato. Lava Jato has incriminated politicians from across the political spectrum, some of whom have ended up in jail or under house arrest. However, those affected in the severest way have been on the left. Note, for example, that although Michel Temer was banned from running for political office for 8 years, this ban was lifted. The impeachment proceedings against him did not get anywhere, despite the much more serious allegations against him than against Dilma. Whether to pursue impeachment is of course a political decision but it intersects with prevalent views in the judiciary.

Other judges are political appointments, including the Federal Supreme Court, so the president who appoints them expects them to be sympathetic to who is in power. These are just two examples of how the judiciary in Brazil has become politicized. These characteristics of the judiciary are not new, of course, but in a climate of extreme political polarization and a series of unpopular governments, this politicization has become heightened, reflecting a clear conservative turn.

I followed the House and Senate impeachment debates closely and the debates, particularly in the Senate, also reflected political judgements cloaked in the language of constitutional principles.

'political judgements cloaked in the language of constitutional principles'

yes indeed!