Introduction

First Stage: Constitutional Reforms

Second Stage: Increasing the Efficiency of Justice

Third stage: Overall Planning
a) The Administration of Justice Must be Perceived as a Public Service
b) Judicial Reforms Must be Implemented in an Integrated Plan
c) Judicial Reforms Must Be Based on Consensus

c) Judicial Reforms Must Be Based on Consensus
This point leads us to a third conclusion stemming from the reforms implemented in Spain: any significant reform of the justice system must be carried out with the highest possible level of consensus among the sectors involved, and must be coordinated among the political groups who will implement these reforms, by means of prior agreements or pacts reached among them, whether explicit or implicit.

In effect, in many countries (and certainly in Spain) many different public powers, institutions and organizations, both public and private, must play a significant role in this reform which will greatly affect the interests and expectations of many individuals and groups. The public entities in Spain with competence over judicial matters include the Ministry of Justice, General Council of the Judiciary, the national Parliament, the governments and parliaments of the Autonomous Regions, and the governing bodies of the courts themselves. Relevant sectors affected by such reforms include judges and prosecutors associations, bar associations, and the trade unions of the employees of the judicial system.

This implies, in a first place, the need to achieve a level of cooperation among various public institutions and to create the means for this cooperation, be it by means of a coordinating authority in charge of the reform, or by means of coordinating committees. In that regard, the complexity of the judicial system and the necessity of implementing global reforms require the cooperation of different powers of the state. But it also implies the need to take into account possible negative reactions to reform efforts from the sectors affected, which wield notable political and social influence.

Any reform, and especially a thorough reform of the system, may yield results which are considered detrimental to the interests of a given sector, giving rise to implicit or explicit opposition which, whether active or passive, can discredit, hinder or even block the implementation of the reform in question. It is possible to cite examples of this phenomenon occurring in Spain.

1. Commencing in 1985 a program was introduced to increase the number of judges without resorting to the traditional long, slow process whereby candidates for judge must pass a series public examinations followed by a prolonged period of studies in the Judges Training School. The program provides for a complementary system in which a committee selects jurists with practical experience, such as lawyers, law professors and civil servants, to occupy roughly one fourth of the judicial vacancies at the Courts, without having to pass the traditional examinations This procedure which has certainly been beneficial in filling speedily vacant judicial posts, has met with considerable opposition from judges associations which believe this procedure for selecting judges may affect the quality of judicial system, and above all, their expectations for promotion. The result has been that the selection commissions, composed mainly of judges, have greatly reduced the number of judges selected from other legal professions. Thus, in this aspect, this reform has not had yielded all the results expected.

2. Likewise, as indicated above, programs designed to measure the productivity of judges have encountered both formal and informal opposition from the judges associations. Critics of these policies range from those which question the accuracy of the measurement techniques to those who express doubts as to their compatibility with the judges’ independence.

3. Attempts to facilitate access to the courts by eliminating the obligation of the parties in a process to be represented by a lawyer in small claims proceedings have logically encountered resistance from the bar associations. Given the political and social importance of these associations, any projected legislation or regulation in that regard is subjected to intense criticism in public, based on claims that procedural guarantees and equal treatment of the parties must be maintained. It must also be taken into account that a majority of the members of the Government and Parliament are lawyers and, thus, any opposition from this sector to future reforms has significant consequences.

4. The reform of the administrative services of the courts in matters involving redistribution of personnel, the evaluation of productivity, or the control of the hours worked are generally met with profound suspicion on the part of the employees of the judicial system and their trade unions. In Spain, employees of the justice system have traditionally followed different models and less rigorous schedules than other state civil servants. For example, court offices have not traditionally opened during the afternoons. Thus, any attempt to expedite the operations of court offices usually encounters resistance on the part of employees and their trade unions which occasionally have resorted to demonstrations and strikes which paralyze the administration of justice and are highly detrimental to the prestige of the judicial system in the eyes of public opinion. And even without resorting to demonstrations, the passive boycott of reform measures can cause any changes to fail.

Therefore negotiations with the groups involved and consultation with the affected sectors and their prior participation is an important factor in the success of any reform. Although it is not easy to achieve the participation of all the affected groups in the consultation process, and to obtain a complete consensus is practically impossible (since there are interests which are often difficult to reconcile) at least this consultation will serve to justify the reform, having given all interested parties an opportunity to express their opinions. This was the course of action followed by the General Council of the Judiciary in drafting the White Paper on the Justice System in 1997 and the Proposals for the Reform of the Justice System in 2000.

In that regard, the White Paper on the Justice System was drafted after submitting detailed questionnaires to many different jurisdictions and organizations (judges and prosecutors associations, bar associations, the governments of the autonomous regions, the Ombudsman, the governing bodies of the courts, and parliamentary groups, among others). The responses were later discussed and clarified in personal interviews conducted by a commission of the Council. The Proposals for the Reform of the Justice System were based on reports submitted by the governing bodies of the Supreme Court and the superior courts of justice of the autonomous regions.

In addition, there is a second dimension to this need for consensus. The complexity of the task of reforming the administration of justice usually requires any reform to be implemented over a period of several years. Thus, long-term plans must be made in aspects such as the selection and training of personnel, or providing economic recourses. Such long-term plans may be impossible if there is no way to ensure that these projects will be carried out despite changes in the government, ministerial staffs or parliamentary majorities, so that a change in the party in power does not result in an abandonment of the projects underway or their being replaced by others. To achieve this assurance requires true political agreements among the groups or parties which play a major role in public life. Both the groups or parties in power, as well as the major opposition parties which may eventually occupy those positions of power, must all be committed to the essential objectives of the reform This will enable long-term projects to be implemented without being subject to the natural cycles of change in governments and Parliament, nor to changes in those in the entities directing the reform.

In Spain the necessity of reaching such a pact between the Government and the opposition political parties became evident due to the fact that, although there was widespread agreement concerning the need to reform and improve the administration of justice, it was equally evident that the two main political parties (representing, in ideological terms, conservative and progressive options) although sharing many common objectives, differed greatly in many of their objectives and methods for this reform. Thus, to achieve a reform to be implemented over a period of time and with long-term objectives, it was imperative to reach an agreement to establish objectives and provide resources over several years, without the fear of having the project interrupted by a change of the party in power. This agreement, repeatedly recommended by the General Council of the Judiciary, was reached after long negotiations in May of this year. It includes provisions for reforming procedural laws (especially regarding criminal proceedings), the method for selecting judicial personnel and the organization of the courts, and provides budgetary resources over a period of four years. The government and opposition parties signing the pact have agreed to assist in achieving the established goals which implies that the parties in the opposition today will not obstruct the Government's efforts in that regard, and that the plans implemented to achieve these goals will not be altered in the event of a change of government.

Of course, it is impossible to make predictions concerning the future of the agreement. A parliamentary Steering Committee (Comisiَn de Seguimiento) has been created on a multi-party basis to supervise the implementation and progress of the agreed measures. At the present moment (February, 2002) several reforms are being discussed: a Charter of Rights for the users of the justice system; a new design for administrative services, and the introduction of a new type of speedy trials in some criminal cases. The implementation of these measures (or lack thereof) in the near future will be a good indicator of the success of the agreement.