Intuitively, most of us would say that legality and dictatorship do not sit well together. Yet, Anthony Pereira successfully juxtaposes these two concepts by examining military regimes' use of political trials in Brazil (1964–85), Chile (1973–90) and Argentina (1976–83). Why explore the use of law by authoritarian regimes? Pereira notes that most authoritarian regimes avoid attempts at ruling by force alone; instead, they strive to attain or maintain legitimacy by making some pretence of legality – that is, by ‘judicializing’ their repression. Some regimes, of course, prove more successful at this task than others through constitutional and legislative tinkering, judicial manipulation, and tolerating legislative bodies and trials. Those regimes that do find appropriate institutional channels for dealing with their opposition are likely to enjoy greater longevity and cohesion.
Pereira selects Brazil, Chile and Argentina as his three cases because their three military regimes were founded on similar concerns about left-wing populist movements and faced common external constraints and influences. He specifically examines political trials, as such trials are an important means by which many authoritarian regimes try to legitimate their rule. These trials highlight the salient political discourse of the day and the extent to which lawyers enjoy the freedom to mount a defence using legal guarantees. Examination of this legal space (or lack thereof), Pereira argues, offers important insights into a regime's style of governance, form and intensity of repression, legitimacy, and even processes of post-transition legal reform. Political trials and legal manipulations can diffuse popular opposition movements, generating legitimacy and approval for the regime and providing an illusion of fair play at the same time as they creating negative images of the opposition. Not least, they hold out the potential of stabilising repression by generating reasonably predictable rules on which opponents and governing officials can centre their expectations.
Pereira's main finding is a stark contrast in the extent to which Brazil and Argentina relied upon political trials to deal with the opposition. At one end of the spectrum is Argentina, with almost complete disregard for legal conventions: the Proceso regime opted for heavy reliance on extrajudicial execution of suspected subversives and engaged in a ‘total and merciless war on the alleged agents of subversion’ (p. 52). Political trials were rarely conducted; large numbers of judges and lawyers were tortured in Argentina, and random acts of brutality were commonplace. Indeed, Pereira concludes that the military regime ‘largely dispensed with any kind of legal strategy’ (p. 52).
At the opposite end of the spectrum is Brazil, which tried to maintain the appearance of legality through gradualism and continuity. The traditional mechanisms, including the functioning of a controlled Congress throughout most of the twenty-one-year dictatorship and the maintenance of controlled two-party elections, have featured prominently in academic scholarship. What Pereira brings into the mix is consideration of the important, yet understudied, role of political trials. Indeed, Brazil made routine use of military courts to prosecute dissenters and opponents. These trials were not all for show, as one might expect to find under an authoritarian regime. Rather, Pereira argues that there were comparatively high acquittal rates, light sentences, space for lawyers to secure guarantees for political prisoners and reduction of sentences on appeal, and a greater reliance in practice on existing criminal law than on new national security legislation (p. 89). Overall, Brazil's political trials ‘preserved more elements of traditional legal procedures and doctrines’ than those in Argentina and Chile and gave defence lawyers maneuvering room to push for greater liberalisation of the regime (p. 140).
Chile's approach fell in between those of Argentina and Brazil. Instead of circumventing the legal process, the regime permitted many trials. Yet here individuals were sentenced to longer penalties (20 per cent of Chilean defendants in Pereira's sample received sentences of ten years or more, in contrast to 12.4 per cent in Brazil) and to harsher sentences of life imprisonment and death – sentences that were not applied in Brazil.
The ratio of those prosecuted in courts to those killed by the state offers a telling reflection of the legal strategy of the three regimes. In Brazil this ratio was twenty-three to one. In Chile for every 1.5 persons put on trial, one was killed, whereas in Argentina, seventy-one people were killed extrajudicially for every one individual put on trial (p. 23). To explain this variation among the three cases, Pereira rejects cultural explanations and those perspectives that emphasise the strength of the opposition to military rule. To understand the differing organisational adaptations to dealing with the opposition, he proposes a historically grounded institutionalist explanation. The key variable, he argues, is the ‘degree of military and judicial consensus, integration, and cooperation’ (p. 191). In order to gauge consensus and integration between the military and judiciary, he examines the organisation of the military justice system, the formal structure of courts, and the degree of harmony between military and civilian views expressed in the press, legal decisions, specialised journals and memoirs dealing with national security, political trials, and treatment of regime opponents.
Those familiar with the Southern Cone dictatorships will not be surprised by Pereira's classification of Brazil as most liberal in its use of law, with Argentina on the other extreme and Chile in the middle, given that the military regimes of these three countries have generally been ranked in this way along a scale of repression in the academic literature. There are also numerous parallels with the political space afforded to Catholic Church opposition to military rule in the three countries, a comparison not drawn in the book.
Overall, Pereira's book offers a new and insightful lens through which to explore regime consolidation through the judiciary, going beyond the traditional focus on societal threat, military cohesion or economic stewardship. Political (In)Justice will be a welcome and informative resource for students and scholars of dictatorship and democratisation in Latin America and beyond. Pereira's focus on enclaves of legality within authoritarian regimes provokes thought regarding the insidious effects of the reverse situation: the corrosive potential of authoritarian practices within democratic regimes, particularly the new ‘special’ legal regimes and clandestine practices designed by the United States to deal with citizen and foreign terrorist suspects. The South American military regimes' attempts to justify their actions in the name of national security cloaked in the trappings of legality, he argues, should serve as a ‘sobering warning to citizens of democracy that their rights too, may be dismantled one law, one executive order, one administrative procedure at time’ (p. 200). Pereira's volume provides a timely warning, reminding scholars and students of the many lessons to be learned from comparative historical research.
