Conceptual and Practical Obstacles to Improving Judicial Performance in Latin America
Conceptual and Practical Obstacles to Improving Judicial Performance in Latin America
“Lynn Hammergren’s outstanding book addresses one of the most important questions in democracy studies today—how to strengthen the rule of law through judicial reform. Her treatment of this subject is original, critical, richly informed, and comprehensive. I recommend the book to practitioners and academic researchers with equal enthusiasm.”
- Table of Contents
- Sample Chapters
Linn Hammergren’s book aims to turn the spotlight on the problems in the movement toward judicial reform in Latin America over the past two decades and to suggest ways to keep the movement on track toward achieving its multiple, though often conflicting, goals. After Part I’s overview of the reform movement’s history since the 1980s, Part II examines five approaches that have been taken to judicial reform, tracing their intellectual origins, historical and strategic development, the roles of local and international participants, and their relative success in producing positive change. Part III builds on this evaluation of the five partial approaches by offering a synthetic critique aimed at showing how to turn approaches into strategies, how to ensure they are based on experiential knowledge, and how to unite separate lines of action.
“Lynn Hammergren’s outstanding book addresses one of the most important questions in democracy studies today—how to strengthen the rule of law through judicial reform. Her treatment of this subject is original, critical, richly informed, and comprehensive. I recommend the book to practitioners and academic researchers with equal enthusiasm.”
“Hammergren’s insightful and carefully nuanced criticisms of Latin American judicial reform projects are truly impressive. This book is a tour de force that should be read by anyone interested in judicial reform, as well as by anyone interested in the role of the judiciary in Latin American countries.”
Linn Hammergren is Senior Public Sector Specialist for the Latin American and Caribbean Region at the World Bank.
Introduction: Twenty Years of Reforms and Not a Consensus in Sight
Part I: Five Approaches to Judicial Reform
1. Criminal Justice Reform: Human Rights, Crime Control, and Other Unlikely Bedfellows
2. Judicial Modernization: Increasing the Efficiency and Efficacy of Court Actions
3. Developing a Professional, Institutionally Independent Judiciary
4. Access to Justice: Legal Assistance, Special Courts, Alternative Dispute Resolution, and Beyond
5. Strengthening the Judiciary’s Role as a Check on Other Branches of Government
Part II: Problems and Remedies
6. Judicial Reform as a Problem of Focus: Why the Parts Don’t Add Up to a Coherent Whole
7. Improving the Knowledge Base for Judicial Reform Programs
8. Toward a New Strategic Model
9. A Political Agenda for Reforming the Reforms
Twenty Years of Reforms and Not a Consensus in Sight
Judicial reform remains a growth industry in Latin American, for both practitioners and, increasingly, their critics. Nearly twenty years of experience in promoting change in the region’s judiciaries seems hardly to have tapped the potential or dampened the enthusiasm for arming new programs. Courts, which once regarded the reforms with utmost suspicion, now have become proponents in their own right. They have been joined by a wide variety of domestic and international players who also want a part in defining what will be done and providing assistance in carrying it out. The reform agenda has expanded well beyond the judiciary, including police, prosecution, public defense, the private bar, and law schools and extending into legal and regulatory areas where courts often have little relevance. Although the present discussion will focus on judicial reform, it is worth noting that the judiciary is no longer the sole target and thus that the substitution of such titles as legal and judicial, justice, or rule of law reform is more than a semantic exercise.
Despite near-universal consensus on its importance, the reform movement has been subjected to external questioning almost since its inception. As its practitioners often complained, much of this was based on little if any knowledge of the situation on the ground. The critics often got their facts wrong; slighted over the political and practical impediments to rapid change; confused poor planning, inadequate information, or simple incompetence with lack of will and hidden agendas; called for more donor intervention where it appeared inadvisable; and criticized it when it occurred.
In this regard, the past decade has seen a dramatic change. There has been a proliferation of books and articles describing reforms in a number of the region’s countries, many of them written by observers with substantial experience both with local judiciaries and with the reform programs. Despite their insider’s view, or better-documented outsider’s perspective, the authors have been no less harsh in their assessments of the movement’s achievements or of its chances of eventual success. They almost inevitably find major shortcomings in a series of design and implementation flaws or in participants’ failure to tackle the fundamental causes of poor performance. In the majority view, most reforms are still on the wrong track and thus, if they get anywhere, will likely arrive at the wrong destination.
What remains unclear is whether their comments are having any impact on current reform trends or, in fact, whether the reform practitioners are learning much from one another. One emerging criticism on which many observers agree is that participants are constantly reinventing the wheel, when not attempting to produce one with square edges. A twenty-year-old reform movement in which the major actors simply forge ahead without engaging in constructive dialogue or building on each others experience is unusual to say the least. The situation is both perplexing and symptomatic of some basic weaknesses in the overall effort. The goal of the present work is to explore the problem, explain its causes, and suggest some remedies that might improve both the impact of ongoing programs and the theoretical and empirical foundations underlying the design of new ones.
Judicial reform is still very much an advocate’s art. Its practitioners generally prefer axiomatic principles to testable hypotheses and action to contemplative evaluation. Their external critics are no less susceptible to these leanings. Ideology and subjective preferences continue to shape their understandings of what has been attempted, what is possible, and what was accomplished. In recent years, another, less noticed development has aggravated the traditional gap between those who act and those who critique—the fact that between and within each group the definitions of reform and of the objectives it pursues have also diverged. It is no longer clear that we are talking about the same phenomenon and, thus, that the criteria applied for assessing its achievements are universally relevant.
When Latin America’s current round of judicial reforms began in the early 1980s, the task looked daunting but fairly straightforward. Following decades of neglect so pronounced they were commonly termed the “orphan branch of government,” frequent political interference, and consequent internal disorder, the region’s judiciaries were widely regarded as incapable of performing their basic functions in a fair and competent manner. Whether couched as an effort to improve an essential public service or raise the missing pillar of democratic governance, the aim was to strengthen the courts and other sector institutions to make them more efficient, effective, and accessible while enhancing their role in checking illegal actions by governmental and private actors. “Strengthening,” a favorite word of reformers, meant increasing judicial independence, updating laws and internal processes, professionalizing judges and other judicial employees, adding modern technology, improving administrative systems, and educating the private bar and the public in general to make them better users of judicial services. As for why this needed to be done, the answer was equally simple: courts existed to resolve conflicts by applying and, where required, interpreting established legal norms. In the process, they reinforced the legal framework itself. To the extent courts were not performing these roles in accord with social expectations, they needed to be reformed. There are certainly more elegant and sophisticated means of reaching this conclusion and more complex understandings of what courts do and how they do it. It should be emphasized, however, that the reformers’ vision did not derive from weighty theoretical arguments about the judiciary’s place, but rather from concrete complaints about court performance and their own observations as to what appeared not to be working. In societies less influenced by Western juridical traditions, they might have been accused of applying an ethnocentric model, but, at a general level, local expectations were fairly congruent with their own.
More than twenty years into the process, the initial simplicity appears disingenuous. On the one hand, the justifications for the reforms have become more complex. Reform is no longer a question of making an institution of government carry out its official role, but rather of enhancing its contribution to a number of broader social projects. Well-functioning judicial systems are supposed to control government abuses and protect basic human and civil rights; create an environment that fosters the development of market-based economies; deter crime and civil violence; reduce levels of societal conflict; support the development of legitimate democratic governance; and reduce social inequities by helping spread the benefits of development to marginalized groups. However one feels about the validity of each of these arguments, they collectively reinforce the importance of the entire undertaking.
On the other hand, the number of activities included in justice (no longer judicial) reforms also continues to increase, now including
• Creation, strengthening of judicial governance bodies,
• Legal and other measures to enhance judicial independence (for example, higher budgets, tenured careers),
• Improved selection systems for judges and support personnel,
• Courtroom administration,
• Judicial (system) administration,
• Information and communication technology,
• Training programs,
• Introduction of monitoring, evaluation systems,
• Judicial disciplinary systems,
• Judicial ethics codes and citizen complaint services,
• Strengthening of auxiliary institutions (police, prosecution, and public defense) in all the above areas,
• Modernization of legal framework to regulate new economic and social practices,
• Simplification of procedural codes,
• Modification of legal codes and procedures to strengthen human, civil, and due process rights,
• Legal-assistance programs,
• Reforms of professional associations,
• Popular legal education,
• Strengthening of legally oriented nongovernmental organizations (NGOs),
• Court annexed and freestanding alternative dispute resolution (ADR),
• Recognition/strengthening of traditional (indigenous) dispute-resolution systems,
• Constitutional courts and judicial review powers for supreme courts,
• Promotion of public-interest law and means of protecting collective and diffuse interests,
• Creation of specialized courts,
• Creation of small claims and other courts for poor populations,
• Integration of administrative court systems into the ordinary judiciary,
• Creation of independent regulatory agencies with adjudicative powers, outside of the ordinary court system, and
• Dejudicialization of some issues traditionally seen by the courts.
This is only a partial, illustrative list, but it should be evident that it contains internal contradictions. Although individual reforms often mix and match several objectives and activities, and a few appear in virtually every large program, a case can be made for the gradual emergence of a series of reforms or reform strategies. Each of them incorporates a different vision of the judiciary’s essential role in and impact on broader societal development and thus implies different objectives and means to reach them. Moreover, although a truly “holistic” project often works on several fronts at once, the compatibility of the aims, visions of the judicial role, use of the necessary components, and financial implications are not at all apparent. The parallel tracks do help explain some of the external criticisms. A reform intended to increase courts’ efficiency in processing cases may introduce elements not completely in line with an access-enhancement strategy or one augmenting the judiciary’s ability to check governmental abuses. Sometimes this is just a matter of priorities. The efforts to improve criminal justice proceedings do consider efficiency, but only on a secondary plane. In other cases, the ends pursued really are different, and both the external critics and the reform designers either fail to see the conflict or choose not to take it into account.
These different definitions of reform, with their corresponding objectives and strategies, could be seen as mutually exclusive alternatives. The divergences, however, seem more a consequence of varying emphasis. Like the fable of the blind sages attempting to describe an elephant, each is capturing only a part of the whole. The underlying challenge is how to combine the partial appreciations into a single definition and model. If the model cannot reconcile the differences, it can recognize them as explicit political choices, which at some point in its development may produce divergent designs. Proceeding obliviously on parallel tracks has its disadvantages not only in terms of tactical inconsistencies and unrealized synergies, but also because, in the long run, each works to maximize a different set of values and define a different end point. Contemporary reformers in the industrialized nations have begun to note the inherent contradictions and thus necessary trade-offs in the various values defining good judicial performance—goals relating to costs, access, efficiency, efficacy, and basic fairness at some point come into conflict with each other, and thus require fundamental political choices. These same and other observers have also begun to question the historical model of the judiciary’s role and operations, which suggests that it may itself require modification. The various Latin American approaches to reform in some sense arise as extrapolations from this traditional model and, to the extent they do, may be incorporating its logical inconsistencies.
These comments focus on emerging problems. They should not divert attention from what two decades of efforts have achieved, the substantial changes produced in the sector’s resources, composition, and activities. The appearance of Latin American judiciaries and other sector organizations has changed a great deal in twenty years, and they operate differently as well. Many of the partial goals have indeed been advanced—as witnessed by higher budgets; better salaries and career status for judges and other personnel; new organizations and substantial restructuring of traditional ones; a greater penetration of the national territory with services now delivered in more areas and to more of the population; changes in internal procedures; reduction of some traditional ills; and greater political presence. Nonetheless, as a whole, Latin American judicial systems seem no closer to meeting citizen expectations. Changes in internal structures and practices are not reflected in changes in outputs, or at least not sufficiently to meet increased and more discriminating demands. Over time, public opinion polls show no great improvement in citizen appreciations of the quantity or quality of services or of the organizations’ dedication to achieving them.
Moreover, the changes have brought new complaints. More-independent supreme and constitutional courts routinely engage in conflicts with other branches of government, declaring the illegality of high-priority programs or insisting on larger investments in nonpriority areas. For the first time in the region, there are criticisms of policymaking by unaccountable judges. Judicial councils and other new governance mechanisms demonstrate no marked improvement in the quality of budgetary or human resource management and often have entered into confrontations with the organizations they are supposed to oversee. The introduction of judicial careers and secure tenure has brought complaints that “bad” judges now enjoy considerable immunity and that judicial leadership has been lax in monitoring performance and removing the ethically unfit. Higher budgets seem only to produce demands for more funding and a notable disinclination to subject its use to ordinary accountability mechanisms. For many courts, budgetary independence seems to mean they should get what they want and spend it as they see fit. Access-enhancement programs have increased budgetary outlays without necessarily improving service delivery to target groups; moreover, there are indications of a negative impact on juridical security. With more cases and more diverse issues being adjudicated, outcomes have become less predictable, both at the trial and appeal levels. Efficiency-enhancement mechanisms have in some cases posed new barriers to poor users, as demonstrated by a marked reduction in annual filings in several countries. The list goes on, but the more general point is that the once-orphan branch of government is now attracting more attention, much of it critical. Enhanced powers and resources have increased the judiciary’s impact so that how they use them has become much more important.
Reform programs had not anticipated these problems and have yet to develop a means for addressing them. For many reformers, they do not exist, at least not in terms of the objectives they are promoting. For virtually every development occasioning alarm on the part of some observers, there are backers arguing that it has not gone far enough. On the one hand, budgets should be still higher, courts more activist, users afforded more due process guarantees, judges better protected from removal, and services further expanded. On the other, judicial councils should have more control over appointments and promotions, discipline and accountability should be increased, dispositions expedited, conflicts dejudicialized, and costs cut or passed on to the users. The goals are all admirable, but in conjunction anything but consistent. As the contradictions are only now becoming apparent, the task ahead is for the reforming countries to decide how to deal with them. The present volume does not assume to do that for them. Its ambitions are more modest—to highlight the inherent dilemmas, explore the alternatives for resolving them, and so encourage the interested parties’ collective reexamination of what they are attempting to create. This treatment should also help external observers understand why such discussions are increasingly necessary and what the arguments represent.
A Brief History of the Contemporary Latin American Judicial Reforms
As must be apparent from the discussion so far, one initial problem is defining judicial reform. The best we can do is tie the definition to the targeted entities. Judicial or justice-sector reforms are thus programs that attempt to improve the performance and impact of court or sector operations. Sector is itself a vague term, but it is usually taken to encompass those institutions most closely related to the courts—police, prosecution, public defense, and the private bar. How reformers define improvement, what means they use to achieve it, and how they measure success vary. The first section of this work looks in greater detail at a series of the most common approximations. Whereas some authors attempt to summarize the goals in terms of a short list of common goals—access, efficiency, and independence—these have not figured in all reforms, and, even where they do, they receive different definitions and different emphases. As several observers have noted, we may all agree on the desirability of these three general goals, but additional clarification is needed before they can guide action. As just a start, several further questions loom large: access to what, efficiency of what, and independence from whom? As we will see, even those pursuing an apparently similar end often appear to answer those basic questions quite differently. They also are quite capable of ignoring the other elements of the short list. A first point then is that all judicial reforms are not the same and that, evaluated in their own terms, they require different criteria for assessing success. A second is that there really is no universal consensus on the aims and content of reforms, whether in Latin America or worldwide. Behind this is a lack of agreement on the contemporary judicial role. Although both points will be elaborated at length in the following chapters, a brief historical treatment of the movement’s evolution in Latin America provides us with a start.
Judicial reform became a part of the Third World development agenda at the beginning of the 1980s. Three events were instrumental to its emergence: first, the redemocratization of Latin America, where the movement really initiated; second, the move to create or strengthen market economies (first in the former Soviet Bloc) and its connection to judicial performance; and third, the discovery, by development theorists, of second-generation (institutional) reforms. The different timing and content of these three events, as well as the addition of other elements (the rise in crime rates following the creation of more open political systems, the impact of economic globalization, and an increasing reliance on the judiciary to resolve political conflicts, once handled by fiat or simply nonexistent under prior regimes) have generated considerable confusion concerning the ultimate objectives of the reform movement both in Latin America and elsewhere. That confusion has its positive side. It has helped attract broader support for what otherwise might be perceived as a dull, thoroughly esoteric set of programs. At the same time, however, it has also discouraged and complicated the evaluation of their underlying premises and eventual achievements.
In Latin America, the first round of reforms, in the early 1980s, focused largely on criminal justice from the standpoint of containing human rights abuses and ending the impunity of abusers. On the Latin American side, the reforms drew on a longer-standing interest in adopting more accusatory procedures, which the proponents believed were more respectful of due process rights than the existing inquisitorial systems. Allowing for variations of detail, the traditional Latin American system featured the investigation of a purported crime by an instructional (or investigative) judge and its presentation to the trial judge (in some cases the same person) in the form of a written dossier (expediente). The process lent itself to a series of abuses, many of which were arguably not a necessary consequence of the basic structure. Nonetheless, to overcome these problems, the reformers had proposed the transition to an accusatory proceedings, featuring investigation by an independent prosecutor (rather than a judge), provision of defense counsel who would conduct his own investigation, oral trials in which both the prosecution and defense presented their own evidence and arguments, and a decision by a judge or jury who would hear the arguments for the first time and so be able to assess them more objectively.
The reforms received financial backing and additional impetus from foreign donors, especially the United States. The latter added an interest in prosecuting state agents who had perpetrated abuses. In the short run, this additional interest occupied another parallel track. The main thrust of the reforms was the drafting and enactment of new procedural codes. Donor concerns often were realized in funding of special investigative units or diplomatic pressures to resolve certain cases. When the opening to democracy brought with it an increase in ordinary criminality (either as a result of the end of dictatorial control or, in the case of postconflict countries, the release into civilian life of former combatants), the two interests were reunited and the code reforms were presented as a means of both guaranteeing due process rights and more effectively combating crime. As developed in the next chapter, this semantic sleight of hand overlooked some real problems in the codes themselves and the potentially contradictory ends they were supposed to pursue.
While the Latin American reformers were most interested in new laws, it soon became apparent that absent other changes they would have little impact on either of the objectives. Thus, the subsequent history of the criminal justice reforms demonstrates a growing recognition and incorporation of additional elements to turn legal theory into practice. These included training programs, the creation of new organizations (public defense and prosecution), restructuring and reorientation of existing ones (the courts, police, and, where they already were present, public ministries responsible for prosecution), provision of new equipment and infrastructure more compatible with the new procedural requirements, education of private lawyers and law students, and public information campaigns.
Greater familiarity with the sector’s weaknesses in general and as they affected the transition to the new systems eventually turned attention to some other elements: measures to strengthen judicial independence, reduce politicization of the appointment process, and increase the professional quality of judges and other officials and staff and to augment the general efficiency of courtroom and systemwide administration. Local reformers were particularly active in promoting the first elements. Their interest, like the code reforms, had earlier origins, but it took new significance with the realization that incompetent, corrupt, politically dependent judiciaries and judges were unlikely to apply the new codes in the spirit in which they were written. Throughout the region, countries adopted judicial councils, representative bodies usually located outside the judiciary and intended to manage the selection and promotions of judges and sometimes court staff. The move was usually linked to the creation of permanent judicial careers, increases in salary levels and budgets, which sometimes were also under the control of councils, and the development of training programs. Donors usually collaborated in setting up judicial schools but provided little more than moral support to the other measures. The Spanish assistance agency is one notable exception. Because Spain has a council system, the Spaniards offered their own experience as a model.
Donors were instrumental in introducing efficiency measures, because these were concerns in their own countries and elements they thus associated with judicial reform. The U.S. Agency for International Development (USAID) was especially important here, because the U.S courts were the most advanced in court administration, and the United States at the time still dominated the field in donor assistance. As U.S. courts were themselves entering the computer age, it was not long before automation became a standard element in donor-assisted programs and one that many Latin American judiciaries also promoted on their own. Resource constraints meant that most of this early work focused on the criminal courts where delays were seen as damaging to both human rights goals and the interest of combating crime.
When the multilateral development banks (MDBs) entered the scene in the early 1990s, they did so over considerable internal resistance because the judiciary was considered “political.” Hence, judicial programs were seen by many as violating the MDBs’ articles of agreement (which emphasized a role in promoting economic growth and explicitly prohibited political involvement). The initial response was to focus on civil and commercial law, which was believed most relevant to the economic mandate. Timing was also critical. Donors had extended their programs to the former Soviet Union and Eastern Europe, where market development was accorded the highest priority. The earlier arriving donors were still involved in Latin America’s criminal justice reforms, which left the way open for the banks to work on noncriminal law.
It should be emphasized that the connection between market-based growth and civil and commercial law was a purely deductive conclusion. There was little empirical evidence that the judiciary, in these or any other areas, had an impact on economic development. It just seemed logical that, if it did, it would be channeled through commercial and civil cases. MDB programs first emphasized law revision but quickly moved into court and system administration, trying so far as was possible to limit their actions to the “civil half” of the courts. Needless to say, auxiliary organizations, like the public ministry, public defense, or police were completely beyond the pale. Over time, they have gradually lessened the strictures, and the Inter-American Development Bank (IDB) in particular soon moved into support for criminal justice and some of these other institution as well.
The court and judicial administration element has been especially favored by the MDBs because it is seen as highly technical and, to the extent it requires major investments, it is a logical candidate for loan programs. Bilateral donors, the United Nations, and the number of foundations already working on reform programs could at best finance pilot court administration programs. Because they work with grants, none had the funds to support systemwide replication. The MDBs could also finance infrastructure, something both ideologically and financially outside the limits for the other donors. Although a negative NGO report on the World Bank’s first project in Venezuela brought a cutback in these investments, the IDB was never affected, and the World Bank eventually returned to financing infrastructure.
The MDBs also found stronger support for their judicial reform ventures in the post–Washington Consensus discovery of neoliberal institutional economics. The argument that “institutions matter,” drawing on the theoretical framework developed by fellow economists such as Douglass North, provided both an explanation for the failure of the Consensus formula of macroeconomic discipline and a real impetus to work with governmental organizations. Of course, North’s interest was in the way informal rules and incentive systems shaped behavior. His discussion of institutions was not directed toward encouraging investments in computers and buildings, but absent arguments to the contrary, reforming judicial and other institutions quickly became conflated with large loan programs to benefit these same organizations. As long as money was spent on the judiciary, it was advancing institutional reform.
A second source of support came from a series of macroeconomic analyses correlating “judicial development” with economic growth. The positive findings provided further justification for the programs, though, as critics continually note, the nature of their guidance was fairly ambiguous and the methodologies themselves were not above question. First there was the issue of defining “judicial development.” Absent a structural (what a developed judiciary looks like) or functional (how it operates) definition, the researchers relied on public opinion surveys or expert assessments, asking panels of local or international informants to rank the performance of national court systems. Where local experts ranked their own courts, there was the issue of cross-national comparability. Standards vary, and a good court system facing demanding experts might get a far lower rating than one whose local panel figured that a certain measure of corruption and exclusionary practices was inevitable. Because international experts often tended to be businessmen, theirs was a one-sided view and measure. Singapore, for example, ranks at the top of many ratings. Reviewers more aware of or concerned about protection of human rights or treatment of political opposition might contest this placement. Shifting to another source of foreign expertise—say, human rights advocates—alters the perspective but still keeps the view narrow.
More complex methodologies, featuring questions as to how much a local entrepreneur would be willing to pay for or invest in a "well-functioning” judicial system are still in the end opinion polls. And in this case, with the aggravating factor of relying on what people say they will do in a completely hypothetical situation. Nonetheless, the banks, as well as many other donors, took heart from the findings as an indication that they were doing the right thing. One potentially positive result was that many countries also took heed of the studies and decided that an investment in improving justice might indeed produce economic growth and attract foreign investment. Not all were quite as disingenuous as an extraregional example, Cambodia, which in 1996 was proposing to rewrite its entire legal framework on the assumption that modern laws would bring in a flood of foreign investors. Nevertheless, many countries have revised codes or introduced new bankruptcy, secured collateral, or corporate governance laws on just such reasoning.
Even assuming that the rankings approximated some measure of judicial development, the second problem is how to translate them into reform programming. At most, the rankings provide opinions about overall timeliness, honesty, and cost. They do not indicate which kinds of courts, which proceedings, or which laws pose problems. Perhaps it is administrative not commercial law, or appellate not trial courts, that create impediments. Perhaps it is rampant crime and not slow debt collection that most deters investors. These issues will be revisited in subsequent chapters. The point for now is that the arguments about economic impacts behind the MDBs' and other actors’ entrance into judicial reform in general and in areas such as delay reduction and commercial law are only partly supported by the evidence and, whether supported or not, provide insufficient detail to guide program design.
In the second decade of the reform movement, two other themes joined the institutional strengthening repertoire. The first of these is the issue of access or the provision of judicial services to groups traditionally excluded from their benefits. Rather surprisingly, this had not come up earlier except in efforts to provide legal assistance to indigent criminal defendants. Probably, it took a turn to noncriminal justice to create an interest in the positive service aspects of judicial output and the fact that for many citizens they were beyond reach. Both judiciaries and donors encountered additional reasons for advancing in this area.
On the judges’ side, there was a sincere or calculated interest in improving their image and overcoming the impression that they served only the elites. Judiciaries in many countries began programs to expand the number and distribution of trial courts and to add still lower-level justice of the peace or small claims courts intended to serve the small users. Brazil began such a program under the military government of the 1980s, formally recognizing it in its 1988 constitution. Its small claims courts with special expedited procedures have since spread at both the state and federal level. They have become so popular that they are experiencing their own problems of congestion. Peru’s justice of the peace courts, while traditionally only tolerated by the regular judiciary (because they use lay judges), were also given a push in that country and now represent another regional model. Other countries have followed suit, if on a less expansive scale. Except in Brazil’s small claims courts, the creation of simplified procedures has not been a pattern, but courts did make other efforts to remove additional barriers—introducing court interpreters, information kiosks, and similar devices to orient first-time users and public education campaigns to help those unfamiliar with judicial proceedings.
The donor impetus had a similar source—criticism from within and outside their organizations that their programs benefited principally state and elite actors, but were not contributing to the new battle on poverty. Thus, in the early 1990s, they also began to expand their activities to include support to general legal assistance, often channeled through NGOs, an emphasis on lower-level courts, popular legal education, and public forums for discussing reforms.
For both donors and judiciaries, the entrance into access programs coincided with the emergence of a new reform mechanism: ADR or the creation of arbitration, mediation, and conciliation services within or outside the courts. ADR was introduced both as a means of expanding access to nontraditional users and decongesting court dockets (an efficiency-enhancement measure that was also supposed to make room for more cases). As a reform tool, ADR thus extends across several objectives. In some countries it has even been suggested as a mechanism for resolving human rights cases.
Although first strongly resisted by judicial and legal actors, ADR has gained dramatically in popularity in the past ten years. Many judiciaries have introduced their own programs. Ministries of justice and other executive agencies have done so as well. Alongside these public-sector programs, NGOs, professional associations, and for-profit entities have also been active in promoting the programs and introducing their own services. Among the donors, the IDB has taken a special interest in ADR and also added its own twist to the goals—the reduction of civil violence. Whereas donors began by funding extrajudicial programs, often with NGOs, court interest in having their own ADR facilities has also led to their inclusion in donor projects. In some sense, the ADR movement has a life of its own, independent of judicial reform. Its most fervent proponents present it as a direct and more effective means of resolving any number of societal problems—ranging from communal violence to weakened family ties. ADR’s attachment to the judicial reform movement is a result of historical and tactical considerations. It was often introduced by advisors working on other judicial areas (often court administration or human rights), and, because it had no more logical place in other ongoing programs, it was easiest to promote it through those with the judiciary.
A related theme, the recognition or reactivation of traditional dispute-resolution mechanisms (indigenous law), entered at about the same time, although advances in this area have been minimal. Several Latin American constitutions now incorporate such practices as an alternative source of law but leave numerous unresolved questions as to how this will operate in fact. In some cases, progress here would appear to conflict with efforts to promote ADR or to provide special or small claims courts for the rural poor.
A second area also receiving more attention in recent years is that of constitutional and legal controls, or the judiciary’s checks and balance function. This has been largely an internal initiative and has received little funding from or promotion by donors. This is understandable in that the major activity has been constitutional change to create constitutional courts or enhance the judicial review powers of supreme courts. The initiative is linked to concerns about judicial independence, but, unlike the earlier stage, is no longer limited to curbing external interventions in the resolution of ordinary cases. Instead, the call was for the judiciary to assume its role as a check on the other branches of government, controlling abuses of power, nonrecognition of constitutional guarantees, and other illegal actions. Although several courts in the region historically had these powers, they used them rarely and with extreme deference to governmental preferences. Constitutional changes combined with demands from legal activists and the courts’ greater political autonomy produced a surge in judicial involvement. Costa Rica’s Sala Constitutional (constitutional chamber), created in 1989, was soon receiving and deciding 2,000 and then 10,000 cases annually, over a ten-year period. Colombia’s Constitutional Court quickly accumulated more than 100,000 requests for a final review of tutelas (alleged rights violations, comparable to amparo, a legal protest of violation of a constitutionally guaranteed right), including those arising from lower court judgments on other issues, and also entered into a series of decisions curbing government programs. Even where sheer numbers were not that high, decisions were often of great consequence. Filings were also encouraged by the development of new mechanisms for making complaints, the creation of specialized bodies (human rights ombudsmen, or, as in Brazil, special prosecutors ) that could represent citizen claims, and a growing interest among legal NGOs in public-interest law.
While often supporting changes in other areas (guarantees of rights in criminal justice, enhanced access), judicial activism also introduced its own contradictions with the broader program. It frequently had negative impacts on efficiency; more opportunities to protest due process violations also enhanced the chances for creating more delay. In addition, some measures to improve criminal justice procedures (the use of abbreviated trials or plea bargaining) or enhance access (via alternative mechanisms) would face their own constitutional challenges. Finally, once the genii was out of the bottle, there were many who questioned the desirability of giving so much power to courts that still had not undergone other more basic reforms. Constitutional courts and chambers were often politicized, they did not always have the most eminent jurists as their members, and their decisions, especially on judicial matters, were often seen as undercutting the independence of ordinary courts or as posing their own conflicts of interest. One example is the expansion of the amparo in Mexico’s federal courts. A Supreme Court decision in the mid-nineteenth century allowed the use of the amparo (as a due process guarantee) to question the judgments of state courts. This has given the federal courts an enormous and much-resented power over state judiciaries and created delays in reaching firm decisions and has arguably added to the public and private costs of justice. Moreover, because the majority of amparos against state judgments do not overturn the latter, there is a real question as to the value added of the procedure. As currently constituted, the process for placing an amparo also raises access issues. Lawyers specialized in this proceeding are very costly, and even the state finds its own attorneys unable to prevail against them.
A Schematic Overview of the Latin American Approaches
As contrasted with judicial reform movements elsewhere in the world, Latin Americans continue to have their own distinctive approach to the issues. The regional linkage of democracy building, human rights, and an end to political impunity has been joined to an emphasis on economic impacts, but judicial reform (as the creation of a strong, politically independent judiciary) has tended to be seen as more of an end in itself. In fact, attempts to emphasize its instrumental nature, especially in terms of the consequences for economic growth, have often been resisted as somehow denigrating the judiciary’s own importance. Attempts to equate reform with improving the courts’ public service delivery (for example, by reducing delays, expanding access, and introducing ADR) have received somewhat more acceptance, but there are still holdouts on the bench and in the wider legal community who interpret this as an unhealthy commoditization of justice and a violation of its status as a universal, indivisible right. Strengthening the judiciary’s role (and that of other sector institutions—the police, public prosecution, and so forth) in combating crime has been less resisted, because of both the growing public demand and the threats to the courts themselves—via attacks on judges, corruption, and the emergence of extrajudicial mechanisms, ranging from vigilante justice to special tribunals outside the ordinary court system.
In Eastern Europe and the former Soviet Union, the situation has been much the reverse. Reforms started with an emphasis on economic impacts. It was somewhat later that democratizing themes and the judiciary’s political role began to receive attention. Furthermore, whereas in Latin America, a usually abysmal public image has not affected an escalating demand for court services, in the former Soviet region the problem has more often been convincing people to use the courts, which are still seen as instruments of state control of citizen behavior. In other regions, it is more difficult to generalize about the justifying themes and interests. On a case-by-case basis, much depends on who initiates the reform, the extent of voiced, nonjudicial discontent with the sector’s performance, and the political role currently played by the judiciary. Not surprisingly, judicially initiated reforms tend to be least instrumental in nature, focusing more on enhancing the courts’ status and powers. Those promoted by governments often point to efficiency and modernity, downplaying power enhancement, though not necessarily independence or status. Many governments do not welcome a court system that can effectively oppose their actions, but they increasingly see the value of enhancing the authority accorded judicial decisions. More instrumental reforms (those seeking extrajudicial impacts) are usually favored by outside groups, either national stakeholders or international allies.
Table 1 lays out some of the most common goals and related activities. In descending order, they are presented from the least to most instrumental in focus.
<comp: insert Table 1 approximately here>
The objectives are presented with their logical activities and results. It should be noted that many reforms are not designed or implemented quite so rationally. Although the objectives are not mutually exclusive, it is difficult to pursue them simultaneously. This has not impeded a move to “holistic” or comprehensive reforms that often work unselfconsciously on parallel tracks. Moreover the choice of activities often seems to operate separately from their most logical placement. Multiple goals may be associated with a narrower range of means (some of them not even logically related) or means may be completely disassociated from their ends. Certain activities the judiciary favors (training, buildings, equipment) may be introduced or justified for reasons having little apparent relationship to their likely impact, especially in the form they take. Training, for example, can be quite effective in producing behavioral change, but only when designed to do so and paired with complementary organizational and procedural modifications. Absent these conditions, it becomes simply a way of absorbing resources (often supplied externally), symbolically attacking problems, and keeping judges happy. Activities have also been designed or subverted to produce results quite contrary to their assumed purpose. Modifications in appointment and tenure systems provide means of stacking the bench with friends of government, removing overly independent judges, or holding off more fundamental change. Special courts are used to facilitate directed justice or conflicts reassigned to the judiciary to postpone their effective resolution.
The reasons for this disarticulation of means and ends are further explored below. The explanation begins with the multiple and not always compatible objectives pursued and the various origins of and interests behind them. Judicial reform as a now fairly standard set of activities has in its short life almost transcended the need for justification. It has also become an assumed solution for an increasing number of extrajudicial problems—poverty and inequality, democratic instability, and inadequate economic growth and investment. Anyone wishing to contest or simply explore some of those connections thus risks attacking numerous sacred cows as well as their associated lobbies. As is often the case with programs serving multiple interests and ends, it is usually easier to leave conventional wisdom unchallenged. The firemen’s syndrome (“don’t step on the hose”) is the safest course, allowing each faction to pursue its own projects, however much it may doubt the validity of those of its allies. External critics have viewed the results less sympathetically, but their relative insensitivity to the politics of program definition has reduced the impact of their commentaries.
Reader’s Guide to the Subsequent Discussion
Figure 1 is the point of departure for the following discussion. In the next section, the five chapters address the origins and evolution of the strategies outlined above in the Latin American context. Two of the objectives, modernization and economic goals, are combined because of their use of many of the same activities and justifications. These individual treatments also discuss effects and problems arising from the compartmentalized pursuit of goals. The sequencing varies from that of the chart, instead based on an approximation of the chronological order in which the different approaches emerged in the region. To avoid repetition, activities that are common to several approaches (for example, ADR, training, legal change) are discussed in detail only in the approach in which they appear most central.
Following the courtroom tactic of anticipating obvious criticism, I will note that the five chapters on reform strategies may well overstate the strategic content of many reform interventions. The treatments represent ideal types, based on what certain general categories of efforts appear to be attempting, explicitly or implicitly. Admittedly, some complex and many unidimensional reform programs seem to have very little strategic vision behind them. They simply imitate actions that have been taken elsewhere, at best justifying their presence by a vague reference to “lessons of experience.” Some of the most common activities—training, ADR, and automation—are the worst offenders, where any organization with some experience in their adoption in any other setting, seems to feel this makes it a reform expert. In the second part of this volume, discussing the routes and impediments to a real comprehensive reform, these “solutions in search of a problem” will be discussed in more detail. Even if those responsible do not seem to know where they are heading, however, they usually benefit from the protection of one of the principal strategic umbrellas.
The second section raises issues related to the failure to develop a truly comprehensive approach and recommends ways in which this might be remedied. It discusses both the incentive structure supporting the current situation and the steps needed to change it. A good deal of emphasis is placed on what the donors now call “knowledge management,” the use of past experience and lessons learned, as well as external criticisms, to improve an ongoing program. Rather ironically, the invention of the term "knowledge management" seems to have coincided with a lesser interest in actually effecting it. Although a volume of this size can hardly cover all the pertinent lessons and findings accumulated in twenty years, it is hoped that by calling attention to some of them and to the issues they raise, individually and collectively, it can encourage the knowledge managers to take their responsibilities more seriously. Academics writing on the topic have made the effort, despite the still enormous obstacles to accessing information from judiciaries or donors; however, many of the donors have a long way to go in this regard. They frequently do a poor job of collecting and disseminating the information they produce, even among their own employees, sponsor research that is not incorporated in their projects, and have tended to do few evaluations of their work. A final question is thus how the various reform participants can overcome less helpful past practices and the incentive systems underlying them and so adopt a more collaborative approach to identifying what they collectively know and using it to improve their common efforts.
Also of Interest
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