Lawfare: Justice’s way to neoliberalism

Justice

Published originally by CELAG | 23 Jan 2018 | Argentina, Brazil, Colombia, Ecuador

The judgement of Lula has been carried out as part of the huge case known as “Lava Jato”, which was the apparently legal cover by which the coup against ex-President Dilma Rousseff was implemented [1]. This judgement is part of a strategy of Lawfare, as the specialists have called it [2], which implies: the undue use of legal mechanisms for political persecution, the use of the law as a weapon to destroy political adversaries by judicial means [3]. The above describes a process of judicialization of politics from the top down, where the judiciary apparatus is raised above the legislature and the executive powers in a dynamic which could lead to a “dictatorship of the judges”, and a complete loss of the balance between the powers [4]. In order to work, this legal warfare requires the articulation with the media and social networks, which operate to manufacture consent either against or in favour of certain personalities, groups or political sectors [5]. The acceptance or elimination and demoralization of the political adversary is carried out especially in the field of public opinion [6].

One objective of Lawfare in the short and medium term is also to obtain the restoration of neoliberalism by judicial means.

The legitimacy given to the process of judicialization of politics derives from the consensus about corruption being the fundamental problem of Latin America [7]. This was manifested by the international financial institutions and US government agencies promoting the structural adjustment and modernization of the State in the 80’s and 90’s [8], but which in recent years has been presented as a problem endemic to progressive governments or so-called “left-wing populists” [9]. International analysts, think tanks and “experts” argue in favour of this vision, which tends to be reproduced by the hegemonic press, feeding a common feeling that, for example, corruption is the cause of poverty [10], above all in those countries under competing democratic, but allegedly authoritarian regimes (as in the cases of Venezuela, Bolivia, Ecuador during the Correa government and Argentina during the Cristina Fernandez de Kirchner government) [11].

The principal thesis of their argument is that these governments, in giving a greater role to the State, in particular in regulation of the economy, in repoliticizing and revaluing the public sector, prioritizing the use of influences and public funds for personal benefit and the use of the powers of the State to avoid any accountability. This is considered as the principal cause of the rise in poverty [12] and of the weakening of democracy to such a point, that according to the “experts”, people are willing to even support a military dictatorship so as to put an end to crime and corruption [13].

This basis of argument and the existence of processes of legal warfare against ex-members of progressive governments demonstrate that there are other interests behind the supposed impartial combating of corruption. One of the short and medium term objectives of Lawfare is also to obtain the restoration of neoliberalism by judicial means. A state of exception is used as a means of supposedly legal mechanisms, as defined by a judicial apparatus which is raised above the other powers, but which in deed lead to the omission of the law in favour of the violent imposition of a new order [14]. This order tries to show itself a legal, “naturally” predisposed to the rendering of accounts and to transparency, which is to say against corrupt practices, following the logic and the “correct” way of doing things of the private sector, in being restricted to and run by businessmen transformed into politicians.

The objective of bringing in the neoliberal order can be seen in greater clarity in those cases where the legal strategy is used for the opposite of what is supposed, that is, when the legal apparatus is raised above the other powers and the legal mechanisms are manipulated to guarantee the status quo, partnering with media to silence certain cases and to avoid the exposure of certain personalities to public opinion. In this way consent is manufactured in favour of these personalities or groups who have been raised as the guardians of neoliberalism.

BRAZIL

Undue use of legal mechanisms and selectivity

The case against Lula shows various judicial adulterations to the rule of Law used for political ends. The weakness of the legal arguments, the inconsistency, has been obvious in this case. There has been distortion in the sentencing and throughout the whole period of instruction and dealings: 1) the presumption of innocence; 2) the impartiality of the judge; 3) the doctrinaire motivations in the legal rulings; 4) the prohibition of non-legal evidence; 5) the principle of equality or citizenship [15]; 6) the publicising of procedural acts; 7) the disallowing of full defence; 8) the requirement of natural jurisdiction. Furthermore, questions are raised such as: a) the abuse of the coercitive arrest; b) preventive imprisonment; c) the use of selective and partial evidence; d) the use of confessions in extreme conditions. To summarize: the 238 page sentence of Judge Sergio Moro, as various jurists have suggested [16], shows how a conviction of “exception” was constructed, which is the mark of a state of exception [17]

By way of example: the principal charge in Lula’s Lava Jato case is linked to the triplex apartment in Guaruja for passive corruption [18]. None of the 73 witnesses testifying in the 23 hearings brought information that corroborated the charge [19]. Lula’s appeal hearing was scheduled for January 24 was brought forward in front of seven cases awaiting processing in relation to Lava Jato. The official bodies argue that it is not necessary to deal with the cases “in chronological order” [20], but the more obvious conclusion is that the objective pf the judgement is to eliminate the possibility of Lula standing in the presidential elections.

Furthermore, there is the favouring of businessmen. Marcelo Odebrecht, the leading executive and magnate implicated and responsible for the Odebrecht corruption, was transferred to house arrest after completing just two years in prison on 19 December 2017 [21]. Another example is the covering up the existence of kickbacks in various projects linked to Odebrecht, in which Admiral Othon Luiz Pinheiro da Silva was sentenced to 43 years imprisonment [22]. These four decades contrast with the fact that the businessmen implicated in the same case were able to reduce their penalties to six years in prison, although the less favoured will be imprisoned for 20 years [23].

Corruption: Brazil’s main problem

The discourse that legitimizes the elimination of the political enemy, Lula, the Worker’s Party etc., is that of corruption. Sergio Moro, the judge running Operation Lava Jato, is portrayed as the hero who can clean up Brazilian politics [24]. However, there is a lack of deep cleaning: “on the ground, we are fighting against organized crime, (if not) with institutionalized crime” [25]. The media emphasize “this decisive action against crime and corruption of the political class is in turn marked as a more global phenomenon of rejection of the establishment and the calling to account of politicians” [26]. Corruption is the truly guilty party, which does not give worth to democracy: “the scenario is so horrible, that some Brazilians ask whether democracy and the elections can offer the possibility of remaking the country again on a good path” [27].

Lawfare as a violent way to neoliberalism

Since his arrival in government via the coup against Dilma Rousseff, Michel Temer has taken measures to substantially reduce social spending and to eliminate worker’s rights to benefit the business sector. A wave of privatizations has been implemented in a wide range of sectors: airports, ports, highways, electrical power and oil companies etc. [28] Among the long term objectives is the privatization of Petrobras, the state oil company which in large measure is the symbol and realization of sovereign policies in terms of economic, technological and defence policies during the Lula government [29].

The measures were accompanied by a restructuring of the laws in favour of the realignment, notably the labour and retirement system reforms hated by workers and celebrated by the business sector, as described in the hegemonic press [30]. The strikes and demonstrations against these neoliberal reforms were countered by the widespread repression of the security forces in the streets of the large cities [31].

ARGENTINA

Undue use of legal mechanisms and selectivity

The judicial persecution against members of the Cristina Kirchner government has been scaled up after the arrival of the Let’s Change policy of Mauricio Macri to the presidency. In recent months, in addition to the case against the ex-President, there have been judgements and preventive imprisonments against the ex-Foreign Minister Hector Timerman and ex-Vice President Armando Boudou.

The fact that those accused did not try to escape seems irrelevant given that the media spectacle is a fundamental part of this new form of warfare.

Abuse of the criteria for preventive arrest is notable as a mechanism to judicialize politics. In the abuse of this resource, various federal judges have ignored international conventions which the country has adhered to in its constitution, which explicitly state that the primary duty is the liberty of those accused during the process. In strictly juridical terms, at the instruction stage, the only reason for using preventive arrest is either the risk of escape or obstruction of the investigation by the accused person. Innocence or guilt comes at a later stage and has to be demonstrated at the court hearing.

There are various symptomatic cases in relation to the first premise. Peñafort and Rua, defence lawyers for the ex-Foreign Minister, Hector Timerman, argued in his appeal that the accused travelled frequently abroad for reasons of his medical treatment for liver cancer, and that he had always returned within the scheduled times as evidence of the lack of basis for his preventive imprisonment.

In the case of ex-Vice President Amado Boudou, the statement from the same expert highlighted that preventive imprisonment should be the exception rather than the rule, and that the accused always had rights. Nevertheless, the fact that those accused did not try to escape seems irrelevant given that the media spectacle is a fundamental part of this new form of warfare. By way of illustration, the government sent the police to the home of the ex-Minister of Planning, Julio De Vido, knowing that he was not at home, but the mass media used this photograph as if he had been arrested.

In relation to the second point, in cases of preventive imprisonment requested for members of the opposition, the judges did not describe the supposed influences, nor how justice might be obstructed. Furthermore, there is evident differential treatment for members of the Kirchner government, as in no case are the same measures taken for members of the current government.

As in the case of Brazil, in Argentina the businessmen involved are taken care of. At no time is business complicity examined, but only that of the government. One of the most scandalous cases is the granting of credit by President Mauricio Macri to his father in 2016, the businessman Franco Macri. The Macri Group acquired the Argentinean Post Office concession in the 1990’s until 2003, when Kirchner took it back into state ownership for lack of payment from March 2000. After 12 years of the Argentine government rejecting all the post-breakdown payment plans for excessive debts, with the arrival of Macri to the Presidency however, the State quickly accepted the receiving of just 1.18 % of the debt [32].

Corruption: the cancer of Kirchnerism

Ever since his taking office, President Macri has taken the opposite position in his administration to that of the Kirchners, with special emphasis on the combating of corruption. This was backed also by the like minded media, to such a point that the leading newspapers, Clarin and La Nación, introducing a specific tag “La corrupción K”. Mauricio Macri declared that now “there is less reporting and more truth”. In regard to the economic adjustment measures, he justified: “He came to the State devastated by corruption” [33], and, “…after a decade of pillage and corruption, we are normalizing the power service” [34]. In constructing the direction this government, every negative result of the application of its neoliberal policies uses the idea that this is the only possible way. A large part of the population has appropriated that idea thanks to the mass media which has imposed their agenda of persecution of the supposed ¨corruptos k¨ in our news every day.

The violent path to neoliberalism

In whitewashing his presidential aspirations, the Cambiemos alliance promised that if he were elected to the Casa Rosada “he would defend the institutions and republicanism”. Nevertheless, his arrival involved precisely the change activating the Judiciary that steamrollered the rule of law, to the point of rolling back basic guarantees in legitimate process and penalizing the political world, a state of exception. The Milagro Sala case is one of the most outstanding examples of this.

But the “exceptionality” has been there from the start. The economic measures affecting a large part of the population, some imposed by decree, were rejected by mass union and civil society protests. Under such pressure, the government put their repressive measures to the test. One important event was the march in support of Santiago Maldonado being found alive [35], where the police actions were newsworthy: 31 people were arrested arbitrarily, spending up to 48 hours in police stations, including tourists, journalists and photographers. But more significant was that during the demonstration against changes to the retirement and pension law in December 2017, demonstrators suffered police brutality, and the use of water cannons, tear gas, rubber bullets, once again being detained at random and having their homes broken into. Here again police were infiltrated among those starting the trouble.

ECUADOR

Undue use of legal mechanisms and selectivity

Judges in Ecuador have conducted a campaign against ex-Vice-President Jorge Glas, who was sentenced to six years in prison, the highest ranking public figure convicted in Latin America in the huge Odebrecht scandal, and against inner circle staff. Curiously, these “legal” suits have not touched the mayor of Quito, Mauricio Rodas, nor indicate investigating Guillermo Lasso, the candidate opposing Alianza País during the presidential elections, whom accusations point towards for receiving bribes from Odebrecht for the Quito metro contract [36], or for being immersed in the Panama Papers scandal –considering that most of the wealth of these politician businessmen is in offshore accounts [37].

It is important to remember that the legal case against ex-Vice-President Glas was begun after a message from the U.S. Justice Department notifying of payment of US$ 33.6 million from Odebrecht to corrupt public servants between 2007 and 2016 [38]. One message coinciding with the electoral campaign underway in December 2016 favoured the interests of the Guillermo Lasso and Andres Paez bid [39]. Both right-wing leaders were mentioned in numerous cables revealed by Wikileaks [40], placing them amongst the most privileged close informants in favour of United States interests [41].

Whilst ex-Vice-President Glas was convicted, those who provided most of the information to the U.S. Justice Department, were the Brazilian businessmen Jose C., Simoes P., Ricardo V. and Mauricio G., one time members of staff at Odebrecht and whose full names have not been published. No injunctions having been served against them, because the Ecuadorean prosecutors signed a cooperation agreement to provide information to gather evidence for investigations, and under article 494 of the Criminal Code, which states that injunctions must be suited to guarantee success of the investigations [42]. One fundamental detail to be taken into account is the expulsion of the Odebrecht company from Ecuador between 2008 and 2010, demanded by ex-President Rafael Correa, who took that decision for not Odebrecht not having complied with the engineering standards of the San Francisco hydroelectric dam, and due to indications of manipulation and corruption in the contracting processes, which the judge of the case did not take into account, and neither was this mentioned in the conventional media, which in due course criticized the expulsion measure of the Brazilian company as authoritarian [43].

Corruption: Correa’s “main problem”

From the beginning of his mandate, President Lenin Moreno initiated a set of actions to disassociate himself from his predecessor and party colleague, Rafael Correa. In an interview with a Spanish daily newspaper, he said he was “horrified, because (…) there had been rampant corruption, principally in the last period of the previous government (…) and apparently the President (Correa) had turned a blind eye on more than one occasion, because he was not thinking of the country, but rather of the next election” [44].

The interesting thing is that in Ecuador, the anti-corruption discourse has been transformed into a process of judicial persecution carried out by Lawfare, supported from the highest levels of the judiciary and with the backing of right-wing parties. The “problem of corruption” in Ecuador has taken on such a proportion for so many people, that it is to be included in the next referendum and plebiscite to be held in a fortnight.

The path to neoliberalism (with Lenin)

The process of judicialization of politics and persecution of members of the previous government has generated fertile ground for the “change”. Since he came to power, Lenin Moreno has put in place a series of neoliberal reforms, overturning Correa’s policies.

Moreno celebrated the visit from the IMF, and later said he would ask for their help, a warning message due to the implications of a change in direction of the country’s economic policy. He is disposed to hand over management of electronic money to a private bank, competing against the income generated by the Ecuador Central Bank in this area. Going against the recommendation by the National Assembly and the Economic Revitalization Law, this allows imports on a massive scale, leading to a significant reduction in the trading surplus in 2017, increasing imports by 21 % and weakening national production. Likewise, in the next plebiscite and referendum, the progressive value-added Law, which impedes land speculation in urban areas, is intended to be reversed [45]. It is no coincidence that in lockstep with this question in the plebiscite, the persecution of “corrupt” members of the previous government is included.

COLOMBIA

Little has been examined and even less published in the mass media about the way in which the Constitutional Court worked against the peace agreement, by making the discussion mechanism via FastTrack unsustainable, which impedes the advance in legislation towards the peace process and which has once again opened up the discussion on the key points of the agreement, placing the peace achieved thus far at risk.

Unlike the previous cases, in Colombia, the strategy of Lawfare is done inversely, using low intensity legal warfare, where the objective is the permanence and concealment, by over exposing certain cases, with the completely rotten from corruption justice system in collusion, impeding perception of the drivers and actors of a system that is now in crisis. The strategy of legal warfare is only of high intensity in the few cases where the left is able to occupy space in the formal political sphere, after combating paramilitary harassment and a merciless hostile media system. Only then are all the alarm bells set off and all the institutional and legal avenues activated to deal with the threat.

Undue use of legal mechanisms and selectivity

The so called judges cartel is an example of the use of justice for the benefit of the right-wing political caste linked to the corrupt and the criminal, which has been ensuring the guaranteeing of the well-being of neoliberalism. But this case is only the tip of the iceberg as there are many loose ends, and through the over exposure of some actors by the media ensures that people do not ask about the links between certain state and regional personalities with the heirs of the family dynasties that currently hold power. Santos, Lleras, Lopez, Gomez, Pastrana, are some of the most recurring names who have known how to handle political, judicial and communication institutions in their own interests.

This key role justice has played has been uncovered whereby certain judges worked in the Supreme Court of Justice in alliance with the Anti-corruption Prosecution Service, postponing and delaying legal processes against politicians linked to the paramilitaries or to cases of corruption, in exchange for spectacular amounts of money. That is not to mention the multiplicity of family businesses which have grown in the shadow of the illegal activity of the judges.

Corruption: the “problem with the left”

Corruption is presented as a disease of the left. This is the case of ex-mayor of Bogotá, Gustavo Petro, who is now a candidate for the Presidency, persecuted and turned out of office by the extreme right-wing prosecutor, Alejandro Ordoñez, whose rulings against the ex-mayor of the Progressive Movement were overturned by the Interamerican Human Rights Commission, allowing him to continue his mandate and by the State Council, which showed evidence three years later of the use of judicial warfare against the mayor.

Access to the Special Justice for Peace is denied to civilians committed to crimes against humanity, or to financiers or backers of the paramilitaries, and the political reform that promised a democratic opening was scuttled, with seats or blocks being denied to the victims in Congress, and the regulation of comprehensive land reform has not even been started, amongst other things [46].

On the other hand, the protection given by the judiciary and the media to certain people is quite clear in the case of Alvaro Uribe, who had more than 186 legal processes against him, including one about his use of the State-DAS intelligence apparatus to intimidate, persecute and spy on the opposition and neighbouring governments, or for the buying of votes in the Senate to enable his re-election in 2006. All the cases in the commission of inquiry remaining intact in the Chamber of Representatives have little possibility of being brought to any judgement due to it being made up of Uribe or ex-Uribe politicians [47].

Lawfare: part of the neoliberal status quo

Odebrecht has been documented to have financed the campaign of President Juan Manuel Santos when he was supported by Uribe in 2010, as well as having supported the campaigns of Santos and his main rival, the Uribe ally, Zuluaga in 2014 [48]. There are also investigations underway into the payment of bribes of at least US$ 31.5 million delivered to highly placed members of the Uribe and Santos governments in return for infra-structure contracts passed in 2006 and 2016 [49]. Nevertheless, not one of these members of the government has been charged, except for one deputy minister and three Senators, who are assisting inquiries and will be given light sentences, closing the Odebrecht mega-scandal with some mid-level leadership figures being convicted, but maintaining the status quo.

The use of the judicial apparatus to safeguard the instituted order of things has played a key role in a process where the responsibilities and miseries of neoliberal policies which has been operating for decades is evident [50], sustaining the same families in power and shielding political dynasties enjoying the benefits of the State despite being seen to have committed serious crimes [51]. The policy of reduction of the role of the State in its socio-economic dimension in favour of the historically marginalized, together with a growth in favour of the private sector is evident, which is well received by the mass media and is not investigated or questioned, considering that the corruption has two parties, those who give and those who receive, i.e. private companies and those associated with the State.

Corruption in the full neoliberal, privatized model, with the State reduced to the extreme, represents 4% of Colombian GDP, about US$ 17 billion a year according to data from the Colombian comptroller office [52]. This scheme depends on the impunity and on the connivance of the judicial system, the media and violence to repress critical voices, such as the 120 civil society movement leaders assassinated in 2017 [53]. This impunity associated with neoliberal policies in relation to the status quo is counselled by the United States, with reports of corruption cases involving “made in USA” companies as in the case of Reficar not being referred to public opinion [54]. The same applies to the Odebrecht case, both in Brazil and Ecuador. To the contrary, highly placed Colombian public servants convicted of corruption have been protected, as in the case of ex-Uribe minister Andres Felipe Arias [55].

[1]http://www.celag.org/lawfare-la-judicializacion-de-la-politica-en-america-latina/

[2]http://lawfareinstitute.com/publications/

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[5]Herman, Edward and Chomsky, Noam. Manufacturing consent. The political economy of the mass media. New York: Pantheon, 1988

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[8]https://www.wilsoncenter.org/publication/international-support-for-justice-reform-latin-america-worthwhile-or-worthless

[9]https://www.economist.com/blogs/economist-explains/2016/11/economist-explains-12

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[14]Sotelo Felipe, M. (2018) “Lawfare, this crime call justice”. In Proner, C., Citadino, G., Ricobom, G. and Dornelles, J. Comments on a notorious verdict. The Trial of Lula. CLACSO https://www.clacso.org.ar/libreria-latinoamericana/libro_detalle.php?id_libro=1338&orden=&pageNum_rs_libros=0&totalRows_rs_libros=1256

[15] Equality is the concept of equal civil and political rights if citizens.

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[18] http://www.bbc.com/mundo/noticias-america-latina-40589237

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[22]https://www.wiseinternational.org/nuclear-monitor/835/brazils-nuclear-power-program-undone-corruption

[23] http://politica.estadao.com.br/noticias/geral,justica-condena-ex-presidente-da-eletronuclear-a-43-anos-de-prisao,10000066863

[24] https://www.nytimes.com/es/2017/08/30/juez-sergio-moro-java-lato-lula-brasil/?rref=collection%2Fsectioncollection%2Findex

[25] http://www.bbc.com/mundo/noticias/2014/12/141209_brasil_juez_escandalo_petrobras_perfil_gl

[26] http://www.pulsamerica.co.uk/2016/11/corruption-charges-and-the-decline-of-populism-latin-americas-rejection-of-its-political-class/

[27] http://themercury.com/endless-corruption-is-a-cancer-in-brazil/article_c2c826b7-75c8-526a-8c6a-862c956cb32f.html

[28] https://www.telesurtv.net/telesuragenda/Privatizations-en-Brasil-20170906-0038.html

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[31] https://www.infobae.com/america/america-latina/2017/04/28/barricadas-protestas-and-huelga-general-contra-las-reformas-impulsadas-por-michel-temer-en-brasil/

[32]http://www.lanoticiaweb.com.ar/noticia/47193/mauricio-es-fue-and-sera-siempre-macri

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[35]http://www.celag.org/santiago-maldonado-desdibujando-al-estado-derecho/

[36]https://www.telesurtv.net/telesuragenda/Lasso-and-Rodas-apellidos-del-escandalo-Odebrecht-en-Ecuador-20170316-0034.html

[37]https://www.pagina12.com.ar/27029-lasso-en-jaque-por-los-negocios-en-panama

[38] https://www.nacion.com/el-mundo/politica/corte-constitucional-de-ecuador-acepta-judge/J2G7EIQVU5GSDCZGM443NLBJDE/story/

[39]http://www.vistazo.com/seccion/country-politica-nacional/politica-nacional/paez-analiza-ir-eeuu-por-informacion-de-caso

[40]https://wikileaks.org/plusd/cables/07QUITO768_a.html

[41] http://www.eltelegrafo.com.ec/noticias/politica/2/investigacion-revela-presunto-vinculo-de-paez-con-stanford

[42] http://www.celag.org/la-corrupcion-problema-america-latina-2/

[43] http://www.ecuadorinmediato.com/index.php?module=Noticias&func=news_user_view&id=2818813271

[44] http://www.abc.es/internacional/abci-lenin-moreno-estoy-espeluznado-corrupcion-galopante-government-correa-201712140224_noticia.html

[45] http://www.celag.org/ecuador-regreso-una-economia-tutelada/

[46]http://www.semana.com/nacion/articulo/fast-track-corte-constitucional-tumba-voto-en-bloque/525563

[47]http://www.elcountry.com.co/colombia/alvaro-uribe-velez-tiene-mas-de-186-procesos-en-la-comision-de-acusacion.html

[48] http://cnnespanol.cnn.com/2017/07/13/fiscalia-de-colombia-asegura-que-odebrecht-asumio-gastos-de-campanas-de-santos-and-zuluaga/ and http://www.semana.com/nacion/articulo/fiscal-hay-evidencia-certera-del-ingreso-de-dinero-de-odebrecht-a-campana-de-oscar-ivan-zuluaga/544784

[49]http://www.eltiempo.com/justicia/investigacion/la-ruta-de-los-sobornos-de-odebrecht-en-colombia-113000

[50] http://www.celag.org/la-crisis-neoliberal-and-la-paz-en-colombia-por-javier-calderon-castillo/

[51] https://www.elespectador.com/elections-2018/noticias/politica/los-candidatos-mal-rodeados-articulo-727973

[52] http://www.eltiempo.com/justicia/delitos/precio-de-la-corrupcion-en-colombia-61749

[53] https://www.elespectador.com/noticias/paz/mas-de-120-lideres-comunales-han-sido-asesinados-en-2017-articulo-724083

[54] http://caracol.com.co/programa/2016/01/28/6am_hoy_por_hoy/1453984041_656591.html

[55] http://www.eltiempo.com/justicia/investigacion/vinculacion-de-andres-felipe-arias-con-caso-odebrecht-esta-en-manos-de-la-fiscalia-119426

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