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 Problem of Judicial Reform in Latin America:
Although technically within the civil code family, Latin American judiciaries also show common law influences; constitutional arrangements (a definition of separation of powers which in a majority of cases gives the judiciary, not the Ministry of Justice, responsibility for its own governance, administrative management , and internal appointment system) and some specific practices (judicial review, occasional use of juries) often imitated US models. This mixture and the broader historical and societal setting gave a unique twist to Latin American institutional patterns. Almost two centuries of independent national development have also separated them from subsequent European trends and added additional idiosyncratic traits -- for example a marked deprofessionalization of many of the region’s judiciaries accompanying the emergence of mass based political parties and their colonization of the appointment process, a career system honored in the breach as entering administrations replace most of the bench with their own followers [ 6 ], the late and usually incomplete adoption of specialized judicial training programs, the virtual disappearance of the Public Ministry in a few countries and its near eclipse in most others. As a consequence, Latin America’s judiciaries have tended to be less functionally relevant and at the same time more politically penetrated than their European counterparts. While they have sometimes been manipulated by the powerful, they have just as often been ignored. Lacking a politically or economically significant clientele, at least as regards their formal functions, they have become nests of secondary vested interests relying on survival strategies that range from intentional irrelevance to abject subservience to the power holders of the day.

With some exceptions, the general pattern has been a series of vicious cycles: irrelevance produces further neglect and the inadequacy of formal channels encourages reliance on informal ones, either within the judiciary or outside of it. Neglect meant lower salaries and budgets and thus poorer services, less qualified personnel, and more vulnerability to corruption. Where taking a case to court meant interminable delays and arbitrary decisions, those who could, bought their judgments or found alternative ways to resolve their conflicts. These arrangements met the needs of traditional, highly stratified societies. They become increasingly inconvenient under conditions of more dynamic economic growth, social diversification, and more inclusionary mass based politics. The greater number and variety of conflicts, increases in crime and new kinds of criminal activity, and a lesser ability to limit exchanges to well known acquaintances make the informal systems less reliable and increase the demand for more efficient and effective judicial performance. Ironically even corruption becomes less predictable and “enforceable.” Those who once relied on it for their dealings with the formal system may find themselves demanding “honest” judges [ 7 ].

A demand for change is a necessary but hardly sufficient condition for reform. First, the dissatisfied may not be driven by the same complaints or the same vision of a better system. This makes it hard to reach agreement on specific improvements and to maintain support for their enactment. Participants may exit a reform alliance when initial changes satisfy their most urgent needs or indicate the likelihood of a net individual loss if the program continues. Once they get higher budgets and salaries, judges may stop pressing for change, especially if it means a loss of additional revenues from bribes or the imposition of more stringent performance standards.

Second, solutions have to be designed, and the most obvious ones may not be the most appropriate. The traditional, institutionalized remedies -- new laws, higher budgets, more courts, or massive judicial purges -- have not worked any miracles and occasionally have made things worse. As any number of examples indicate, higher salaries don’t of themselves produce less corrupt, or more legally accurate decisions, while the threat of purges may only encourage personnel to accelerate their illegal use of office while they in fact hold it.

Third, institutions, no matter how dysfunctional, attract vested interests. While no one may have a stake in the entire system, each of its elements has its supporters who will oppose or work to undermine change. Because institutional change is inherently complex, and usually slow, it affords considerable opportunity for deviations along the way. For all of these reasons, although virtually all Latin American countries have begun some sort of judicial reform, most remain far from complete. While their judiciaries have changed, the extent of their improved performance is highly debatable. Furthermore, in a number of cases, a countermovement, among the judges, lawyers, political and economic elites, and sometimes the public, can also be detected. This is different from the resistance initially offered to reform, and is instead based on the inadequate or unanticipated consequences of the first programs.