Introduction

The Challenge of Judicial Reform

The Problem of Judicial Reform in Latin America

The Experience of Latin American Judicial Reform in Latin America

Some Specific Areas for Further Attention

Some Unanswered Questions on the Role of Judicial Institutions and Societal Expectations

Conclusions

Sources Consulted

Introduction:
Since the early 1980s, national governments, judicial leaders, civil society organizations and a variety of external assistance agencies have engaged in regionwide efforts to reform Latin American justice sector [ 1 ] institutions. Often building on movements that had begun decades earlier, this concerted attention to the problem of sectoral performance and to the ways it might be improved has produced changes in the sector’s legal framework, organization, and budgetary resources in a majority of countries; generated a growing number of externally supported reform programs; and involved an increasing variety of external, regional, and national actors in debates over the roles to be played by the judiciary and other sectoral entities (police, Public Ministry, the private bar, legal aid societies, etc). It has also produced visible changes in how many of these entities operate and in some cases measurable improvements, and has dramatically augmented our knowledge of the factors shaping and thus the constraints on their performance. Clearly had we known fifteen years ago what we know today, we would have done things somewhat differently and at least arrived where we are in far less time.

The experience and the accumulated knowledge have hardly diminished the interest in or the debates over reform. The amount of national and international funding devoted to the sector continues to grow while the number and types of problems addressed expands as well. Some observers have in fact suggested we are reaching a point of diminishing returns -- too many funds chasing too many objectives with a resulting reform agenda that no set of national institutions could possibly realize [ 2 ]. Although the current situation does not encourage it, we have arguably reached a stage where a certain amount of reflection and reordering of priorities is desirable.

Fifteen years may have been excessive for what was accomplished, but experience does demonstrate that reform is inherently slow, complicated, and conflictual. Whatever consensus initially informs it will hardly be sufficient to guide the multitude of issues and choices it inevitably raises or to incorporate the many new actors demanding a stake in the proceedings. Such apparently simple concepts as judicial independence have in practice proved much less straight forward and introduced far more fundamental debates about the role of the various branches of government, their individual and collective accountability to their citizens, and the values their actions should uphold. The initial agreement on the need to eliminate judicial poverty has now raised issues about how much societies should spend on justice, and who should pay the bill. Demands for more resources have also led to questions about the returns on these investments and how they should be measured. It has been suggested that the frequent complaints about the lack of progress in reform may be based on unrealistic expectations as to what could be accomplished -- better courts will not eliminate crime or societal conflict, nor can they more than marginally affect gross social inequities. Clearly Latin American societies were not served well by their court systems nor did they serve the latter adequately. However, a marked improvement on both counts is only a necessary but not sufficient condition for addressing more basic social ills.

Still, even accepting these limitations on what reform can do, and acknowledging the unresolved issues as to what it should do, there is considerable room for improvement in the design and implementation of the current and next generation of reforms. It will, as is argued below, require better use of the knowledge we have acquired, a more adequate definition of and agreement on objectives and strategies, and a greatly enhanced coordination among those attempting to further them. The rest of this paper aims at some specific recommendations, first reviewing the underlying problems, then discussing the evolution of approaches to define and resolve them, and finally turning to areas where more attention is needed. The principal focus is the judiciary, as the central actor in the justice system, and the one whose reform has proved most difficult to define. Many of the lessons and recommendations, however, are more widely applicable, encompassing the entire gamut of organizations and institutions included in any justice (as opposed to judicial) reform program.