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THE LEGAL 500 > EVENTS > AKERMAN US-LATIN AMERICA SUMMIT

Akerman US-Latin America Summit

The Akerman US-Latin America Summit is becoming an increasingly significant date in Miami’s legal calendar, bringing together not only a U.S.-based corporate counsel and selected partners from law firms across the region, but also a range of non-legal keynote speakers who can provide distinct perspective of the continent and its inter-relation with the United States. This year's warmly-received address came from Tim Padgett, the Americas editor for Miami's National Public Radio affiliate, WLRN. The value of this exercise should not be underestimated. If the legal profession as a whole has a generally conservative outlook, arguably the corporate legal profession has a still narrower vantage-point and -beyond Miami- is not especially know for the depth of its broader knowledge of the region.

What is of particular interest on re-reading Padgett's speech today –just a couple of months after its delivery- is its forceful illustration of both the rapidity of change in the region and the ongoing centrality of the role of relations with the U.S. in this evolving scenario (this, despite China’s significant recent penetration into the region). Quite clearly, the advent of administrations led by Jair Bolsonaro and Andrés Manuel López Obrador (in Brazil and Mexico respectively), have altered the dynamics of the region in ways that are, as yet, unclear. Similarly the impact of Jimmy Morales' on-going "auto-golpe" (undercover of the removal of the UN-appointed anti-corruption body, CICIG), and Maduro's confirmation in power will impact upon Central America and northern South America, respectively, in unforeseen manners. Indeed, Maduro's rediscovered outspokenness of late quite possibly relates to Trump's loss of control of the lower house following the U.S.' mid-term elections last November - and the perception that more direct forms of U.S. intervention in the affairs of Nicaragua, Venezuela and Cuba are now less probably than was previously the case. Suffice to say, Padgett's panoramic presentation, laced with a wry humour and built on the back of 30 years’ experience of the region’s complex dynamics, remains a timely refresher of many of the macro-level factors affecting the region.

Here we present a lightly-edited version of the presentation given by Tim Padgett at the Akerman’s 2018 US-Latin America Summit, supplemented with an additional follow-on re-cap of the latest developments in the Latin American scenario. My thanks both to my namesake, Tim and to Akerman.

Tim Girven


The Akerman US-Latin America Summit 2018: Keynote Speech Tim Padgett – Americas Editor, WLRN-NPR

Before I start, I just want to point out that at WLRN I wear two hats – that of news reporter and that of opinion writer. When I wear the latter, my articles are always labelled “commentary” – and this speech should be labelled the same. Thank you for letting me set that straight.

And thank you for being here. It’s always a pleasure for journalists to speak to a roomful of lawyers. Because as enemies of the people, we feel a special kinship with you. In fact, we’re a bit in awe of you in that regard. We were only recently designated as such – Shakespeare gave your profession that designation more than 400 years ago. As I told my brother, a lawyer, earlier this year: now Mom can be proud of me too. Or ashamed. I’m not sure which.

As many of you know, today, November 2nd, is the Día de los Muertos –the Day of the Dead– in Mexico and for much of the rest of Latin America. Here in Norte-américa, gringo Catholics like me call it All Souls Day.  Either way, it is a rich autumn day of introspection – of examining who we are by hanging out with our dearly departed.

So it somehow seems appropriate today for a gringo to be talking about Latin America – and for Latin America to be informing the thinking of a gringo – because today’s ritual of self-examination is welcomingly inter-American.

Now as a Miami-based journalist talking about Latin America, I’m usually expected to talk about Cuba. And I anticipated doing so, since National Security Advisor John Bolton came here himself, yesterday, to talk about Cuba. But unfortunately Mr. Bolton’s speech didn’t offer any news. And so I was left with having nothing more to say on the subject than: ‘…the Cold War between the U.S. and Cuba continues as it did before...’

Which is sort of like Chevy Chase announcing on Weekend Update: Generalíssimo Francisco Franco is still dead. Or Bill Murray announcing its Groundhog Day.

So let me start instead with news I think is equally important to Miami if not more so: last Sunday’s Brazilian election.

It reminds me that I also enjoy speaking to lawyers because you’re one of the few audiences which understand Latin. And today – less than a week after Jair Bolsonaro was elected President of Brazil, and less than a week before we hold an election that’s a de facto referendum on U.S. President Donald Trump – I have the word tyrannus running around in my head.

Or rather: tyranni. Nominative plural. Now let me be clear: I am not calling President-elect Bolsonaro or President Trump tyrants. I’ll echo Mr. Bolton’s speech and say that in Miami we know what real tyranny looks like, and it doesn’t reside in Washington or Brasília. It resides in Caracas and Havana.

Rather, what strikes me is how Trump and Bolsonaro project the ‘tyrant style’. Sort of like a Coral Gables teenager who like to wear “gangsta” fashions. Bolsonaro and Trump like to wear that authoritarian, strongman swagger – that cologne called eau de mano dura.

It’s at the heart of their voter appeal. Their political bases are in fact quite similar: they want a guy who can blow it all up and take their country back to a golden age…that never really existed. And you don’t need to go to Brazil to confirm that. Here in South Florida, about three-quarters of ex-pat voters cast ballots for Bolsonaro. This despite his controversial record and remarks – which are widely considered fascist, racist, homophobic and especially sexist.

Like the time he publicly said a Brazilian congresswoman didn’t “deserve to be raped” because she was “too ugly.” Or that he’d rather see his children dead than gay. Or that blacks are an inferior group in Brazil.

Charming stuff. And it doesn’t include his fondness for the military dictatorship that ruled Brazil in the late 20th century – or that he says he’d love to give police the same brutal carte blanche that regime had. Yet just about every Brazilian I spoke to at the voting station here in Miami defended Bolsonaro. One woman told me all that criticism of him is just “fake news.”

And that’s when the ‘Twilight Zone’ music started going off in my head. Because – hadn’t I just heard that at the latest Trump rally? Had the Trump movement influenced the Bolsonaro movement this way? I thought: Is this how the U.S. is repaying Brazil for Tom Jobim?

But then I caught myself and realized: No – wait a minute – dismissing facts as “fake news” was a feature of Latin American politics long before Trump imported it.

In fact, anyone who’s covered a Latin American election in the past half century knows that candidates there have been getting away with what Trump gets away with here for decades. Look at any Brazilian WhatsApp feed from this past election campaign. It would make Sean Hannity blush.

The broader point I’m getting at is that for all the justifiable charges of yanqui interventionism in Latin America in the 19th and 20th centuries, in the 21st century Latin America seems to be schooling us.

And before any Trump supporters out there start chanting “Build the Wall!”, let me make clear that this is not a demographic thing. This has nothing to do with the rise of the Latin American population in the United States. To the contrary. Much of what’s happening in the United States today is precisely what so many Latin American immigrants came here to escape:

For starters: a widening and socially-destructive chasm between rich and poor. Less than 1 percent of Brazil’s population still owns almost half its GDP. Is that really the direction we want to be headed in here?

Or zero-sum politics, where the demonization of people who don’t think as you do makes it impossible for a society to negotiate and move ahead. Or the inexcusable neglect of infrastructure like, say, public transit. (But gosh, we wouldn’t know anything about that here in South Florida, would we?)

Or most important: the decline of democratic institutionality – or at least a once widely-held reverence for democratic institutionality.

A U.S. that shows the kind of indifference that today’s U.S. shows for democratic linchpins like voter rights, an independent judiciary, a free press or preparing its workforce for tectonic shifts like globalization – a U.S. that dismisses the darkest impulses of its leaders by calling it “fake news”…that’s a new United States of America that’s beginning to look a lot like the old Latin America.

It’s a United States at a very dangerous crossroads. A United States that emerged from its victory in the cold war in a hot panic about who and what it really is. A United States that’s not so much on the verge of making itself great again as it is at risk of forgetting what made it great in the first place. That has happened to all great countries throughout history. Some find a way to bounce back. Some don’t.

I’m confident we will. And ironically, despite all the trash-talking I just did about Latin America, I think Latin America can play a big role in that. Because even though Latin America is showing us so many of its bad old faces today – from right-wing caudillos like Jair Bolsonaro in Brazil and Jimmy Morales in Guatemala, to left-wing catastrophes like Nicolás Maduro in Venezuela and Daniel Ortega in Nicaragua – it’s also giving us good, fresh looks.

Like the International Commission Against Impunity – CICIG – in Guatemala (which, as many of you know, Jimmy Morales is trying to kill because it does its job so well).

Or new Peruvian President Martín Vizcarra. He’s an obscure politico who’s pushing rather remarkable pro-democracy reforms – checks-and-balances, improvements like adding a second chamber to Peru’s Congress, etc. They’ll go to a referendum next month – and could be a big shot in the arm for institutional governance in Latin America.

Let me pause here a moment and say that I had unreservedly included Brazil’s corruption-busting prosecutor, Sérgio Moro, on this hopeful list. Until yesterday, when he accepted Bolsonaro’s offer to become Justice Minister. It’s not that Moro wants to be Justice Minister, or even Bolsonaro’s Justice Minister, that worries me. It’s that he doesn’t seem to understand the really bad optics involved here.

Moro was the guy who put former Brazilian President Lula in jail this year on corruption charges. Whether or not you agree with that, Lula’s resulting disqualification from the presidential election paved the way for Bolsonaro’s victory. So when Moro took what looks like payback from Bolsonaro yesterday, I thought: is this the same guy who exuded so much ethical awareness when he spoke at the University of Miami law school earlier this year?

I’m willing to give him the benefit of the doubt and hope that he intends to be a check on Bolsonaro’s more extrajudicial instincts.

But let’s go back to Peru. The initiatives fostered by Vizcarra are the kinds of reforms the United States – and Americans like us – need to be helping Latin America push to the finish line. In fact, I’d say that’s the U.S.A.’s unfinished job in this hemisphere. We did a decent job of helping Latin America move to democratic elections. And that matters a lot. But we’ve been lousy at helping Latin America build what comes after elections…the real work of democracy…democratic institutions.

Meaning, what I just mentioned U.S. citizens themselves have started caring less and less about. And the idealist in me believes that if we set out again to help Latin America build institutional democracy – especially fair and functioning judicial systems – it might just help us rediscover the preciousness of our own democratic institutions…instead of the capriciousness of personality cults.

But the first thing we have to do is understand the historical reasons why Latin America has had such a deficit of democratic institutionality. And it’s not because Latin Americans themselves are somehow defective in this regard.

I once interviewed the vice president of a Central American nation who, just to jerk my chain told me, “We’re going to be the Switzerland of Latin America. But we’re missing just one thing.” “What’s that,” I asked leaning forward. He leaned forward and said: “Swiss people.”

I should have told him: That’s a load of crap.

Because in my coverage of the region I’ve often seen Latin Americans demonstrate a keen sense of how democracy and democratic institutions should work. Like Xiomara Luzón, a mother in one of Caracas’ slums whose 8-year-old son was shot and killed in 1997 by a marauding cop while the boy was flying a kite. She engineered a democratic crusade that led to some of the first police reforms Venezuela had ever seen in the 20th century.

Latin America doesn’t need Swiss people. It needs more vice presidents and other elites who aren’t so clueless and dismissive of their own people. But those attitudes have historical roots. And here’s the part where, when I give lectures at colleges, etc., I try to tread very carefully – because I always feel myself flirting with a certain cultural chauvinism if not outright bigotry… which would get me into a lot of trouble with my Venezuelan wife.

I remember once when I was especially weary of covering corruption scandals and government dysfunction in Latin America, an editor of mine told me something that seemed, let’s say, politically incorrect. But it wasn’t, really. He said, “Tim, you have to remember: John Locke was not a Spanish author.”

He was referring to the two very different political and legal mind-sets North America and Latin America inherited. We inherited English thinkers like John Locke: a sense of social contract…of the rule of law. Latin America, to put it mildly, did not inherit that from the Spanish and Portuguese empires.

That’s not to say the colonizers of North America didn’t commit their own grave sins…like the genocide of Native Americans. But take a look at just about any municipal police force from Tijuana to Tierra del Fuego – woefully underfunded, underpaid, undertrained and most of all undervalued – and you realize fairly quickly that the Iberian empires didn’t really leave behind a system of public security. They left behind a culture of private security.

A culture of high walls and razor wire around the houses of those who can afford it. And everyone else left to the mercy of cops who are often unable or unwilling to protect them from bloodthirsty gangs like the maras, who are the de facto government in large swaths of Central America. That’s the biggest reason a caravan of thousands of Central Americans is now headed for our border.

That vacuum of public security is also a big reason Bolsonaro is now Brazil’s president-elect. That and Brazil’s astronomical corruption – which is related to the public security problem because it reflects the same absence of rule of law. Most Brazilians believe Bolsonaro will be the new sheriff who drains the swamp. It’s all about MBGA – Make Brazil Great Again. Or as a friend here with strong ties to Brazil corrected me recently: MBGF – Make Brazil Great… Finally.

But Bolsonaro has Brazil’s own heavy historical inheritance to deal with. In fact Brazil’s is even heavier because the country started out as a monarchy. For its first 68 years, Brazil lived under a royal court system based not on public institutions but on personal favours. That bred a deeply incestuous relationship between government and business. The $5 billion Car Wash or Lava Jato corruption scandal is just the latest tumour to grow from that cancer.

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Tim Padgett, Americas Editor for WLRN News, speaking at the Akerman U.S.-Latin America Summit

And one of the Brazilian politicos now sitting in jail in a case related to that scandal is former President Luiz Inácio Lula da Silva – known as Lula. Again, we can debate whether Lula should be behind bars. But he is arguably the person most responsible for Bolsonaro’s election. Or put it this way: Bolsonaro owes his election to Lula’s biggest failure – but also Lula’s biggest accomplishment.

The accomplishment was bringing 40 million new Brazilians into the middle class a decade ago. And considering that Brazil at the turn of the century was one of the world’s most in-egalitarian countries – if not the most in-egalitarian, that matters. The striking thing was that Lula didn’t do this by being the leftist everyone thought he was. Lula was, in fact, at least to my mind, a sort of Third Way pragmatist Latin America needs more of. (And which the U.S. today needs more of.)

I remember chatting in São Paulo once with one of Lula’s buddies from his labour-union days. He told me Lula once picked him up to go to a meeting, and Lula saw he was reading Karl Marx. “He took the book out of my hands and tossed it into the glove compartment,” the friend recalled. “He said, ‘Put that crap away. Get real.’”

Lula sort of expressed the same thing during the couple times I sat down with him. I interviewed him in 2008 at the Planalto presidential offices in Brasília, when he was at the height of his popularity – and Brazil was at the height of its economic boom. I asked him what had been the formula for his success.

“It’s called doing things right,” he said with a matter-of-fact shrug and that jagged smoker’s voice of his. “Allowing the rich to earn money with their investments,” he said, “and allowing the poor to participate in that economic growth.”

And they did for once start to participate – not just as social welfare recipients but as fledgling entrepreneurs getting seed capital and joining Brazil’s formal economy for the first time. Lula in effect created millions of potential new Rotary Club members. I mean, I once did a story on former Brazilian favela dwellers joining a wine club in São Paulo (which is great: Malbec is better for you than caipirinhas); but that brings us to Lula’s biggest failure.

Because, you see, when people’s incomes rise – so do their expectations. Their expectations for more efficient services; better infrastructure; quality education; a saner tax regime – and less corruption. All of which was still (and is still) a hot mess in Brazil. During that same interview I pressed Lula about what he was doing to address those expectations. And his answers were pretty lame. He thought all the new money would hide all the old dysfunction.

It didn’t – especially when Brazil’s boom went bust. Suddenly all that new middle-class expectation got ticked off. (Remember the furious street protests in Brazil five years ago over a trivial bus fare increase?) Suddenly Brazilians were confronting those national character flaws rooted back in the monarchy.

Suddenly anti-corruption prosecutors like Sérgio Moro – who heads the Car Wash case – had public support. And for the first time in Brazil’s history, crooked politicos and executives started going to prison.

Including Lula and leaders of his leftist Workers Party, or PT. They’ve gone from heroes to villains because they’re at the centre of the scandals. And also because Brazil’s conservative elites weren’t all that happy about Lula’s egalitarian reforms. (But let’s remember, those conservatives are also very deeply mired in these scandals, including outgoing President Michel Temer.)

Either way, just as the Trump army turned immigrants into America’s whipping boy, the Bolsonaro army was able to make the PT the scapegoat for every ill in Brazil. And this past Sunday, it produced a landslide.

But can – or will – Bolsonaro drain Brazil’s swamp? It’s doubtful. What I do know, however, is that if he does want to drain the swamp as much as he wants to reverse women’s rights and give cops license to shoot first, he’ll be helped by the fact that right now there seems to be an unusually strong popular will to reform Brazil – and perhaps most importantly, to reform its dinosaur of a judicial system.

It’s no secret that Latin American judicial systems in general don’t promote due process – they promote process. They remind you that Napoleon is a good Cognac… but not always a good legal code. Latin America’s process makes Charles Dickens’ thousand-page litigation novel Bleak House look like a Legal Zoom brochure. And in Brazil – again, in large part because of that courtly culture laid down by the monarchy – it’s a parallel universe.

Brazil has more than 1,200 law schools – more than the rest of the world combined. It has more than 800,000 lawyers – more per capita than the U.S. And the layers of legal bureaucracy there are thicker and harder than an Amazon mahogany tree. Cases, criminal or civil, don’t just take years to complete – they often take decades.

Fourteen years ago I travelled deep into Brazil’s Amazon region with a federal investigative police unit set up to free slaves – and arrest slaveholders. At one of the farms we raided it was clear the owner was using slave labour. Some of the older slaves had been on the property since they were young – like one 74-year-old man named Francisco.

After Francisco was freed I took him out to lunch in a nearby town and bought him a hamburger. The waiter brought it; Francisco looked at it and asked me, “Como la gente come isto?” How do I eat this? He’d never seen a hamburger in his life. He’d never been allowed to leave that farm.

And yet as far as I know – I last checked about four years ago – the family that had kept Francisco on that farm as a slave for most of his life has still never been prosecuted – let alone convicted.

But as I said, the Car Wash prosecutions – and convictions – are proof of a groundswell for change in Brazil. Here’s another obscure but important piece of evidence of that. One of Brazil’s newly elected congresspersons is pushing a very popular bill to eliminate cartórios from Brazil’s legal system. One translation for cartórios would be notaries. A better one would be: parasites.

Unlike notaries in the United States, os cartórios don’t facilitate the legal document process. They hijack it. They’re a big reason Brazil’s judicial system is so slow and cumbersome – and expensive. The cartório industry rakes in about $5 billion a year in Brazil – and many cartórios themselvesare some of the country’s richest people.

Getting rid of that absurdity would help streamline Brazil’s legal system. But more important – streamlining the legal system could have positive ripple effects in many other areas of Brazilian life. Not just prosecuting epic corruption but – as a possible spin-off – reducing Brazil’s monstrously bloated public bureaucracy. Civil servant salaries and pensions cost Brazil as much as 5 percent of its $2 trillion GDP every year.

Especially the salaries – or in so many cases, the illicit salaries. Brazilians call their public servant system O Trem da Alegria – the Joy Train. It’s an embezzlement locomotive that can make overnight millionaires out of backwater bureaucrats – like Lidiane Leite, the mayor of Bom Jardim. She was raking in $4 million a year until she was finally convicted this year. Because of her, Bom Jardim’s kids went without government school lunches for years.

Yet for all the pay they plunder, their performance is putrid: in Brazil it takes four months of red tape just to get approval to start a business – something many of you here have probably heard clients complain about.

Such is the swamp that 55 percent of Brazilian voters think Jair Bolsonaro will drain. But as I said, there is reform potential in that swamp – which U.S. foreign aid agencies like USAID can foster. USAID has in fact been helping the judicial reform and anti-corruption effort both there and elsewhere in Latin America.

However, as we know, the Trump Administration wants to reduce that kind of foreign assistance – especially to Latin America, which Trump considers a den of illegal immigrants, drug traffickers, bad trade deals – and bad hombres. It looks as though Bolsonaro and Trump could have a chummy relationship, for obvious reasons. But the question is whether either of them is really all that interested in promoting democratic institutions – in Brazil or in the U.S.

Nevertheless, we have to keep up the institution-building fight in Latin America. And nowhere do we see the importance of that effort more than in Venezuela.

Of course, we can’t do any democratic institution-building there right now. But we have to be ready to do so, because eventually the regime of socialist clowns, thugs and corruptos who’ve destroyed Venezuela will collapse under the weight of its own clownish, thuggish and corrupto behaviour. And it will happen even though that regime faces an incompetent opposition.

It’s that dysfunctional opposition, in fact, that makes our eventual institution-building assistance there so important. Because you’re kidding yourself if you’ve bought into this myth that Venezuela was a paragon of democratic institutionality before Hugo Chávez came to power at the turn of the century. It wasn’t. And that’s precisely why Chávez came to power in the first place.

To remind myself of that, I keep in my library at home a large, three-volume book titled Diccionario de la Corrupción en Venezuela. It chronicles hundreds of appalling corruption cases during the pre-Chávez era. It was published in 1992 – which was, not coincidentally, the same year Chávez led his unsuccessful military coup.

I remember landing in Caracas the day after that bloody event, thinking the Venezuelan masses would be cheering the coup’s failure. Instead – especially up in the vast hillside slums that ring Caracas – they were banging pots and pans cheering for Chavez. The joke on the street was that he deserved 30 years in prison: 1 for the coup and 29 for failing.

Sadly, I wasn’t all that shocked. When I was a graduate student in Caracas in the 1980s I spent my free time as a volunteer school teacher up in one of those slums. I got an up-close look at the fact that even though Venezuela was the hemisphere’s most oil-rich nation, half its population lived in inexcusable poverty.

And a big reason was that even though Venezuela back then held reliable democratic elections, its democratic institutions were as hollow – and its wealth as vulnerable to grand theft – as the rest of Latin America’s were.

Chávez pointed that out to me during an interview before he was first elected president in 1998. Which is why I then pointedly said to him then: okay, so instead of making revolutions, why don’t you try building institutions for a change? I already knew the answer, unfortunately: in a setting where functioning institutions are so unfamiliar, making revolutions is easier – and more glamorous.

I interviewed Chávez again in 2006 – in New York, right after he called George W. Bush the devil at the United Nations. And it was apparent that he’d made little if any effort to familiarize himself with democratic institution-building. Like his ancien régime predecessors, he’d learned the trick of using democratic elections to obscure the fact that he didn’t govern democratically.

Let me say, because of my past experiences in Venezuela’s slums, I appreciated the fact that Chávez gave the poor their first taste of political and economic empowerment. And their first medical clinics, schools, potable water. And I don’t apologize to anyone for pointing that out in my work.

But I also pointed out to him in that last conversation that he was free here to insult Bush, but back home in Venezuela he’d just rammed through a really retrograde anti-defamation law making people subject to criminal prosecution if they insulted him.

He gave me that indignant look of his that was all jacked up on caffeine. (He drank as many as two dozen guayoyos, or small Venezuelan coffees, each day.) And he said “Look, devil is the least of the horrible things they call me in Venezuela. Our civil libel laws just weren’t strong enough.” (Gosh, we haven’t heard that lately from anyone in this country, have we?)

Chávez signalled to me in that interview that he planned to turn his revolution even harder left and more authoritarian. And he did. And then oil prices collapsed, and Chávez died, and his regime held on. Brutally. We all know the outcome: people are starving in Venezuela, and South America is dealing with one of the worst refugee crises in its history.

Let me be clear: it’s an outrage that so many of the regime’s opponents are in prison – that is, those who haven’t been killed, like Fernando Albán, who recently “committed suicide” while in custody. But my point is that if Chávez was institution-illiterate, much of Venezuela’s opposition leadership is only semi-literate in that regard.

Much of that leadership was part of, or is informed by, that pre-Chávez establishment that opened the door for Chávez – and which, let me remind you, was also prone to jailing folks who insulted them.

There’s no doubt the Chavistas have far exceeded their predecessors in the corruption department – especially since oil was above $100 a barrel at the height of Chávez’s reign instead of below $10 when he came to power. And right now, unsurprisingly, we’re seeing Venezuelan officials getting indicted here in South Florida for billion-dollar embezzlement schemes.

Still, I worry that if the Chavistas were thrown out tomorrow and democracy restored in Venezuela, the cycle of institutional neglect might just continue.

That’s something Teodoro Petkoff –who died this week– understood all too well. Petkoff was the editor of the respected independent Venezuelan newspaper Tal Cual – and he was also a former (and reformed) left-wing guerrilla who’d fallen out with Chávez and strongly opposed his regime. But Petkoff was also wary and critical of the rest of the opposition because he realized their democratic bona fides weren’t always all that polished either.

And to me that explains why Americans have to be poised to assist Venezuela in building institutional democracy when the opportunity arrives. Not just the U.S. government – but U.S. citizens like you, from a community whose expat ties to Venezuela are now as strong as those of Cuban exiles to Cuba.

And for that matter, it is of course just as urgent that we be ready to assist Cuban democracy when the same opportunity arrives there. Which is why engagement and normalization of relations with the communist regime made sense because it helped us get a foot in the door for just that purpose.

And when that day comes, there will be dissident lawyers in Cuba for you to engage with. Including Wilfredo Vallín, who did something remarkable seven years ago. He actually sued the Cuban regime to recognize the independent Cuban lawyers association he founded. And the Cuban Supreme Court actually let the suit proceed. Vallín is still fighting his case of course. This is Cuba we’re talking about after all. But he’s the sort of guy normalization should promote.

And since it’s the Day of the Dead, let’s not forget that Mexico is another country –and a country more strategically important to the U.S., which we too often forget here in Miami– that could use a lot of U.S. help in this regard. That’s because it recently started the implementation of a historic judicial reform that would, among other changes, shift court cases from an unwieldy and secretive written process to a potentially more efficient and transparent oral procedure.

So far it’s not going so great. It’s a bit of a mess, actually. But then, it’s a reform we all expected would take a generation to realize – because institution-building is long-haul business. Either way, it’s a reform that could mean the difference between Mexico becoming a rule-of-law country next door to us, or continuing on as The War Next Door, which was the headline of a cover story I wrote for Time Magazine nine years ago.

Mexico’s judicial system would really be more recognizable to a 16th-century viceroy of New Spain than it would to a 21st-century legal scholar. In large part that’s because it’s what legal scholars call an inquisitorial system (I hope I’m correct in saying that), wherein the court is not the referee in the case but rather an investigative participant.

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I lived in Mexico for 10 years and I watched how that arrangement gums up and then corrodes the judicial gear box. It becomes an exercise in opaque paper-pushing where evidence often gets obscured or outright manipulated – where convictions are too often secured through forced confession and judgments are too often delivered through bribery.

In other words, it’s a system heaven-sent for the drug cartels terrorizing Mexico today. A horrid example of what I’m talking about was a case I covered in the northern city of Chihuahua involving a mother named Marisela Escobedo. Ten years ago Escobedo’s teenage daughter was murdered by a member of the bloodthirsty Zetas cartel. He was actually arrested – and he actually confessed to the murder. And as far as we know it wasn’t a confession produced by torture. It was produced by the evidence presented against him.

This was great news when you consider that 95 percent of Mexico’s violent crimes go unsolved. And yet, as this case and all its baroque documents started winding their way through all the baroque procedures, the judge – who let’s remember had a measure of investigative power – arbitrarily decided in 2010 that there wasn’t enough evidence. So he acquitted the guy.

Maybe the judge feared reprisal by the Zetas. Whatever the reason, Marisela Escobedo was naturally furious. So she stood and protested on the steps of the Chihuahua state government palace for weeks – until one night just before Christmas that year, another member of the Zetas chased her down and shot her dead.

Because of nightmares like that, Mexico’s President at the time, Felipe Calderón, pushed for judicial reform – an effort to modernize and professionalize everybody from local cops to federal judges. He saw it as the only long-term solution to the country’s narco-tragedy.

Its core is the move away from a more Napoleonic, inquisitorial system to a more U.S.-style, adversarial system – in which the courts play the more modern and I think appropriate role of árbitro between prosecution and defence, plaintiff and defendant. And where the modus operandi is the more transparent oral argument and testimony instead of the more shadowy written process.

We should all hope it succeeds – but we should especially hope so here in Florida, which is one of the focuses of America’s current opioid epidemic. Here, heroin is a serious factor in that crisis – and the more effectively Mexico’s judicial system can fight heroin traffickers like El Chapo’s Sinaloa Cartel, the more effectively we can curtail the plague on this peninsula.

(That’s a big reason I also favour marijuana legalization: it drains cartels like Chapo’s of a major source of revenue, and at the same time lets Mexican and U.S. officials focus on busting genuinely evil drugs like heroin instead of dime bags of pot. But that’s grist for another speech.)

The U.S. of course backs Mexico’s reform, and has thrown about $300 million behind it. Just as important, though, groups like the American Bar Association – through its Rule of Law Initiative – are also a playing an educational role, helping Mexican law schools prepare professionals for this tectonic shift.

But perhaps the most interesting laboratory right now for this sort of U.S. helping hand is Central America – particularly the northern triangle of El Salvador, Guatemala and Honduras.

You may remember that under the Obama Administration, the U.S. committed about a billion dollars to helping those countries improve political, economic and security conditions. The goal: make people – like those in the caravan approaching our border right now – feel they can stay at home.

In other words: the U.S. was finally realizing that it makes more, lasting sense to confront illegal immigration at its source instead of at the border.

And the most important component by far is judicial reform. Three years ago WLRN and the Miami Herald produced a six-part series called The Migration Maze on the U.S.’s efforts in places like Honduras. We watched proven U.S. community policing methods and technology being implemented in gang-ravaged cities like San Pedro Sula. But most of all we explored the smaller, more creative but potentially just-as-effective solutions.

One involved a former San Pedro Sula gang-banger named Jessel Recinos. He almost died in 2007 when rivals shot him five times. He showed us the X-ray where one bullet lodged right next to his heart. When he recovered, Jessel dedicated himself to a project called Skate Brothers. It teaches at-risk kids in San Pedro Sula how to skateboard and rollerblade – but most all to stay away from the maras, the gangs, stay in school – and stay in Honduras. It works.

It works so well that a year after our report, the State Department partnered with Jessel to build a $200,000 skate park in San Pedro Sula. It may not be judicial reform per se – but it sure as hell enhances the work of judicial and police reform.

The point is, reaching out to these would-be undocumented migrants in their barrios is more effective than demonizing them on the border.

But unfortunately, the demonization is what seems to galvanize President Trump’s voter base. As does branding me and my colleagues enemies-of-the-people. And let me end with that subject since I opened this speech with it, because it too has a Latin American connection.

People often ask me if it bothers me, or frightens me, that I’m now an enemy of the people. I do worry about the potential for violence against journalists. But if you’ve worked in Latin America as long as I have it puts things into proper perspective. Because in Latin America being a journalist is a reason to be concerned for your life.

The murder of journalists in Mexico right now, for example, is at an all-time high. One of those killed last year was Javier Valdez, the revered founder of the newspaper Río Doce in the northern city of Culiacán – the home of El Chapo’s cartel. Javier masterfully chronicled not just the ghastly crimes of the cartel but the hypocrisies of the business leaders and politicians who were in bed with Chapo.

I had dinner with Javier one evening at an outdoor café in Culiacán, and he told me about all the death threats he’d received. I looked around and asked him, “Is it really smart for us to be eating outside like this, then?” He said, “Oh, I’m OK as long as I’m with you. The narcos don’t want the headache that attacking a U.S. journalist would cause them.”

Javier had no such shield when narco-gunmen dragged him out of his car and murdered him with a dozen shots.

So sure, it bothers me when Trump and the “CNN Sucks!”-cult unfairly attack the U.S. media. But what I face here pales in comparison to what journalists like Javier face every day in Latin America. They’re not enemies of the people – they’re enemies of the people who have free reign to kill them.

Which is the strongest reminder I can offer you today of why institution-building efforts like judicial reform are so imperative there. And why folks like you – who have both the legal expertise and the Latin America expertise – can be of so much use in that effort.

I’d like to dedicate this speech to Javier Valdez – and all my colleagues in Latin America who’ve lost their lives in that cause. And with that –because this is All Souls Day and Day of the Dead in Mexico– I’ll close with a hopeful quote from my favourite Mexican novel, Juan Rulfo’s Pedro Páramo, whose main characters are the dead, like Javier.

Encontrarás más cercana la voz de mis recuerdos que la de mi muerte, si es que alguna vez la muerte ha tenido alguna voz…You will hear the voice of my memories stronger than the voice of my death – that is, if death ever had a voice.

Thank you.

Update


Girven:

I was struck, re-reading your 1st of November (Day of the Dead!) presentation with both the apparent rapidity of change in the Latin American region, currently, and also at the ongoing centrality –despite China’s increasing penetration into the area– of the United States’ role in the region.

Certainly questions seem to out-weigh answers at present. In Argentina, incumbent President Macri enters an election year having made considerably less progress in returning the country to a more stable economic footing than was hoped in the immediate aftermath of his -at the time- surprising election win. Both regional heavyweights, Brazil and Mexico, are beginning new presidential terms under distinctly different 'outsider' presidencies (those of Bolsaonaro and Lopez Obrador –AMLO-, respectively); and in Central America both Nicaragua, with Ortega's opting for repression in the face of opposition protests, and Guatemala, with Morales' expulsion of the CICIG, give serious concern not just for the rule of law but also for basic human rights. However, given what is currently occurring there -and your immediate engagement with it from Miami- perhaps we can turn first to Venezuela

Padgett:

Venezuela: right now we’re at a very tense moment and witnessing a remarkable stand-off. This is, frankly, an incredible situation: you have an opposition leader, Juan Guaidó (President of the National Assembly) essentially calling a president’s re-inauguration unconstitutional –which most legal experts would agree with– and then going on from that to declare himself interim president! I’ll call it the Guaidó gambit… we have to balance the symbolism of his action in the face of the fact that, as yet, he does not have any control over actual power bases in the country, such as the military. Will this symbolic act resonate enough, not just with the international community and the diaspora but also with the military and the high command? If that happens then this is a game changer…

… All of this came together on Jan 10 when Maduro’s previous mandate ran out.  Given that the Constituent Assembly (convened by Maduro so as to by-pass the opposition-controlled National Assembly), is an illegitimate body, his re-election last May –and by extension, his 10.01.19 re-inauguration– was, if not illegal, at the very least unconstitutional.* Yesterday -January 23rd- was the anniversary of the 1958 deposition of the (Marcos) Pérez Jiménez dictatorship and was therefore chosen by Guaidó as the most suitable day to launch his intervention. [To date, some 19 European Union countries –Spain, Portugal, Germany, the United Kingdom, Denmark, Holland, Belgium, France, Hungary, Austria, Finland, Luxemburg, the Czech Republic, Latvia, Lithuania, Estonia, Poland, Sweden and Croatia; 11 of the 14 "Lima Group” countries – Argentina, Brazil, Canada, Chile, Colombia, Costa Rica, Guatemala, Honduras, Panamá, Paraguay y Peru - along with Australia, Ecuador, Israel and the United States, have recognised Guaidó; Maduro continues to count on the backing of Bolivia, Cuba and Nicaragua, locally, along with Russia, China and Turkey.]

The US has let its diplomats stay; what will now be interesting is to see if Brazil and Colombia… and then European players follow suit in this non-recognition of Maduro. That would begin to have a serious economic impact… Up until now it has been OFAC sanctions that have been the most effective tool in targeting members of the Maduro administration, particularly in relation to the currency exchange manipulation and profiteering. High level indictments have been handed down here in Miami to various of the ‘enchufados’ – the well connected, who have made fortunes in currency speculation. Beyond that, little has been effective – except the closure of the US bond markets… which is, by extension, effectively closing access to the international markets. However, the country is on the verge of default anyway… We’ll have to wait and see as regards Latin American countries – and by extension the wider global community…

Guatemala. Aside from Venezuela, from a US perspective I would argue that we have to be more focused on Central America – especially Guatemala and Nicaragua. We have to come down on Nicaragua given the brutality of the security forces’ repression there, but we also have to lean more heavily on Jimmy Morales since we have to show that we are not cuddling ideology anywhere – that right-winger Morales in Guatemala deserves as much opprobrium as left-winger Ortega in Nicaragua, given their respective behaviours. I’d suggest this in our interests…… this, after all, is the region that is sending migrant caravans up to the U.S.  It’s not just about economic dysfunction but also governmental functionality… we have to address this at source… and it’s also Honduras and El Salvador [which has just elected populist Nayib Bukele, running on an 'anti-corruption ticket'], but it is more politically fruitful for Trump to demonize migrants rather than denounce the conditions that are resulting in these caravans. His political goal is to besmirch these migrants…. More disappointingly, while he is willing to confront Ortega he is far less interested or willing to confront Morales – which then undermines his position vis-à-vis Ortega and, worse still, his overall democratic credentials for any involvement in the region. However, the Supreme Court has stood up to Morales and as long as the judiciary as a whole, backed by the emergent civil society, continue to do so, I don’t think Morales will necessarily have the last word….

Brazil. The Bolsonaro phenomenon is a double edged one: on the one side you have the side of him that causes alarm… he has had a very shaky start – he is seen as a sort of Trump-ian figure who can bring change but the scenario now suggests that he is likely to be less capable of pushing his radical position forward. However, what we can say is that after years of seeing the Workers Party coddle left-wing dictatorships around the region - well, that will no longer happen and this flip of Brazil’s position may have an impact upon how other states respond in turn. It may also upset the long held ‘cop-out’ in the region regarding non-interventionism. AMLO, for example, is one of those left-wing leaders who cannot respond to other left-wing leaders acting as repressive dictators. This is an age old custom and standpoint in the region and both left and right are responsible. And this is a cycle we will see repeating itself until democratic institutions begin to deliver for voters. Every time we think democratic institutions are established, we let our guard down and they fail, then voters look for extra-democratic alternatives. At the end of the day, the US remains the party best positioned to help ensure that democratic and judicial institutions are not only installed but also continue to function, but this requires long-term commitment on our part. Finally, a couple of things as regards the tradition of non-intervention:
     i/ as regards Venezuela (which has spilled more than 3 million emigrants into the rest of Latin America), we are seeing a break with that heritage on the part of the LIMA group… we would not have seen this a decade ago. There is a growing recognition among Latin American leader s that the non-intervention policy is a cop-out. This is a significant development.
     ii/ At the end of the Obama administration we were beginning to see that ongoing investment was genuinely having an effect when it invested in places such as the northern triangle (Guatemala, Honduras and El Salvador); not just in drug interdiction but in micro-financing and other developmental steps that encourage people to stay in their countries rather than head north… that has to be given a chance to work since the only way to staunch this human flow is to ensure the functioning democratic institutions safeguard the societal basics that allow citizens to build their lives without the prerequisite of emigration.

* see the Stanford Law School blog:  https://law.stanford.edu/2019/02/01/guaido-not-maduro-is-the-de-jure-president-of-venezuela/



Guest partners from select Latin American law firms commented on Akerman’s 2018 US-Latin America Summit in the following terms:

  • I thoroughly enjoyed the event: the quality of the panellists was impressive and the topics of conversation very timely.
  • I enjoyed the conference greatly. In truth, the majority of the panels were very interesting - including the last one on political analysis. I was also impressed with the group of in-house lawyers, youngsters of Latin-origin based in Miami - very good indeed!
  • I believe Akerman and The Legal 500 did a fantastic job in putting together a high level event. I was surprised by the turn out and the level of the speakers, especially the keynote (right after lunch) who did an impressive job in summarizing the political scenario of the Lat Am Region. A true added value. You can tell he was extremely experienced and well-versed in different matters of the region.
  • Overall I would say the conference was fantastic. The venue was nice, the organization top-drawer and the topics discussed were very relevant. It proved to be the perfect event to both refresh and consolidate existing relationships as well as to get in touch with potential new partners.
  • I have nothing but compliments for the event. I enjoyed it very much and think it was well-organized, interesting, profound on certain topics and also entertaining. The panels were a great success. I particularly enjoyed the presentation by Tim Padgett and both the GC and 'Political' panels.  There were also brief but concrete times to do some networking.