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

The Challenge of Judicial Reform:
Judicial reform is hardly an issue unique to Latin America, either in its objectives or in the difficulties it faces. Judiciaries perform a series of vital functions for any political system -- law definition [ 3 ], conflict resolution, and social control -- and where they fail to perform them according to citizens’ needs and expectations, there are a series of negative social, political, and economic consequences. Often their failure encourages the creation of alternative mechanisms and practices. These alternatives may resolve the immediate problems of individuals and groups, but their partial, nonauthoritative nature tends to erode social consensus, decrease predictability, and discourage more complex forms of interaction. Private or communal enforcement of rules and agreements is inevitably restricted in its reach and decreasingly appropriate for larger social units. Extralegal pressure to force judicial decisions may serve individual interests but over the long run devalues the decisions themselves, undercuts judicial legitimacy, and eventually threatens that of the entire political system. This is equally true whether the contested issues involve private individuals and groups, or governmental actors and agencies.

The very factors which make judiciaries essential also impede efforts to transform their operations. At one level, the challenges posed by judicial reform are remarkably similar across different legal traditions and even across countries at different stages of socio-economic development. All institutions are conservative, but those in the legal sector are so by explicit purpose as well as by implicit function; their ultimate authority and their contribution to the maintenance of a legitimate order lie in their lesser vulnerability to short term fluctuations in social preferences and the relative power of social groups. Hence some lag between their performance and changing demands and expectations is almost inevitable. Not surprisingly, these same characteristics permeate the internal perspectives and preferences of their members, even in areas more peripheral to their main responsibilities. Judiciaries are never the leaders in adopting modern management techniques or new technologies, and it is not uncommon for them to be decades behind the rest of the public sector in this regard. Arcane personnel practices, procedural requirements, and even equipment are the norm not the exception. The computer, the fax, or more efficient methods for recording data are usually adopted late and only after considerable hand wringing over their “legality.”

Professional roles and self-image are another constant across systems. The civil law judge may be a career bureaucrat, but she shares with her common law counterpart an independent, craftsman’s approach to her work which conflicts with such basic management techniques as standardization of procedures, organizational guidelines for prioritizing attention to tasks, or quantified output targets. Furthermore, judges traditionally are kings (or queens) in their courtrooms and frequently reject the notion of officially [ 4 ] delegating even logistical decisions to professional managers or of sharing support staff. Professional formation and a tradition of judicial independence (however much violated in fact) also conflict with measures to monitor performance, to increase intra or extra-judicial accountability, or to deal openly with disciplinary and ethical issues. No profession likes to air its dirty laundry in public, but judges, to their collective detriment, seem particularly reluctant to do so.

Finally, many institutional vices or distortions are commonly encountered across legal traditions. Judicial corruption, a retreat to legal formalism (deciding to the letter but not the spirit of the law) in the face of external threats, and decisions skewed by partisan or other biases are frequent complaints, especially in societies undergoing rapid and fundamental change. While often initiated by nonjudicial actors, as a way to cut individual transaction costs, they can become part of the informal organizational culture and thus embedded in a network of vested interests which will oppose their elimination. Certainly, the opportunities for, forms, and incidence of corruption vary widely, but there is no judicial system where it is unknown.

Not surprisingly, there is thus substantial similarity among the types of measures suggested to improve individual and organizational performance -- higher budgets and salaries; more personnel, equipment and infrastructure; rewriting of substantive, procedural, and organizational laws; reorganizations, including both the elimination and addition of specialized jurisdictions; training for judicial and administrative personnel; the adoption of modern administrative practices and techniques for individual courtrooms and entire judiciaries; the introduction of new categories of judicial and administrative staff; revised judicial appointment systems and qualifications for candidates; and the introduction of performance and ethical standards and monitoring and disciplinary systems.

Differences between and within major legal traditions do produce certain patterns -- path dependencies [ 5 ] -- in their natural evolution and reform preferences. The latter appear as a greater reliance on some measures rather than others and variations of detail in the specific interventions, the overall models adopted, and the means for their introduction. Judicial training, for example, is a universal remedy, but its recommended content, format, and integration into appointment and career systems vary considerably. Most reforms attempt to increase the merit element in appointments, but what is meant by merit is still debated, even within individual systems. How countries define problems and what they deem acceptable remedies also affect reforms. US advisors working in Latin America in the early 1990s found their local counterparts were often less concerned with reducing delays than with measures to combat corruption and increase judicial independence. While Latin Americans were interested in adopting more adversarial criminal proceedings (which they perceived as more effective and less susceptible to abuse), they were less receptive to the concept of plea bargaining which many US jurists regard as critical to their success. While ADR has now achieved regionwide acceptance, even five years ago many Latin American judges and lawyers saw it as an abomination, arguing that it threatened judicial integrity and basic due process rights.

It is the means for introducing change, however, that seem to vary most consistently between civil and common law traditions. The latter’s tendency to establish the judiciary as a truly independent branch of government has placed greater reliance on the judiciary itself for introducing and implementing these changes. In the U.S., the legislature occasionally mandates reforms, but leaves it up to the courts to design and apply them. In the civil code tradition, a less independent, and frequently more politically penetrated judiciary has often given the impetus to the executive branch. Interestingly, this tends to be true whether the judiciary is managed by the executive branch (via the Ministry of Justice) or when it has responsibility for its own governance (through the Supreme Court). This, as we will see, has frequently produced conflicts in Latin American systems because of their judiciaries’ historical, and undoubtedly idealized, aspiration for a more U.S. style autonomy and because of a long tradition of extensive if usually illegal executive intervention in court affairs.

These conflicts raise a final dilemma which in one form or another confronts all judicial reform efforts. Even reforms managed by a nonjudicial agency, and certainly those headed by the judiciary, usually combine two goals, greater efficiency and efficacy, and greater independence. Both internally (at the level of individual judges) and externally ( in relation to other political and economic forces), the judiciary is usually not conceived as a command system. Individual judges and judiciaries are expected to carry out their functions in compliance with the law, rather than because of the instructions of a superior or extra-judicial actor. As the Latin American case suggests, the two goals are related in that the judiciary’s lesser efficiency and efficacy are commonly blamed on external intervention. Nonetheless, whatever the difficulties of making an organization and its members either more efficient or more independent, accomplishing both at once is extraordinarily challenging.