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 Experience of Latin American Judicial Reform in Latin America:
In dealing with the dilemma of reform, Latin America has passed through at least two phases and may now be entering a third. The first could be termed the mechanistic approach, characterized by the introduction of a series of discrete measures intended to resolve specific problems of output. The second, a systemic or technical-institutional approach, sees poor performance as a consequence of entire sets of interdependent practices which must be transformed en masse. Several years experience with this approach and its highly mixed results are currently encouraging its reexamination. This may lead to further refinements or to a third generation of reforms, based on still a different appreciation of the dynamics of planned change. The stages are in some sense cumulative -- the transition upwards has not involved discarding the earlier solutions, but instead redefined the conditions for their success.

For most of its independent history, Latin America’s approach to reform has been largely mechanistic, attempting to rectify shortcomings in judicial performance through isolated innovations. These often imitate measures introduced earlier in Europe or the United States. Reform most often meant rewriting laws -- to bring them into conformity with “modern” trends and occasionally to resolve more specific concrete problems. The region has seen veritable waves of law reform, the most recent of which began in the 1960s with the model code movement [ 8 ]. However, the impact of legal change was often minimal. New codes when enacted were never fully put into practice; compliance with their mandates was often merely formalistic or symbolic. Full implementation required organizational and other resources not existing in the adopting country, a better understanding of their contents on the part of legal professionals and the public, and a different set of values and incentive systems.

Donor assisted reforms, beginning in the 1960s with the Law and Development Movement [ 9 ] and in the 1980s with USAID’s Administrative of Justice Programs [ 10 ] introduced a broader set of innovations, but suffered from the same limited vision and consequent systemic constraints. Most of these programs recognized the greater dimensions of the problem, but they still placed enormous faith in the selective addition of a few missing elements -- commonly training programs, new administrative systems, enhanced investigative tools, and techniques for evaluating evidence. In coordination with Latin American reformers they also worked to increase judicial budgets, defining some of the problem as the judiciary’s traditional poverty, and to reduce partisan control of appointment systems . Although indigenous reformers were less adamant as to the efficient use of new resources, both parties agreed that more was better and that less executive intervention in both financial administration and appointments would increase judicial independence and thus eliminate a major constraint on performance.

The emphasis on judicial independence was the first element of a turn to a systemic reform strategy, one which recognized that additive solutions would not go far in isolation . Problematic behavior usually had multiple causes all of which had to be addressed. Thus the second round of donor assisted reforms (USAID’s post 1990 projects and those of the World Bank and IDB) adopted more comprehensive, integrated strategies, attempting to work simultaneously on various aspects of judicial organization, procedures, laws, and external linkages. In USAID’s criminal justice reform projects [ 11 ] , legally driven procedural change became the motivating theme, around which the formerly isolated interventions were organized. If judiciaries could not adequately deal with crime, encouraged impunity, and perpetrated their own human rights abuses, this was partly because their legally defined procedures were inadequate, but there were other causes. Their professional and administrative staff was poorly trained and lacked basic skills; their appointment and personnel systems rewarded political contacts not merit; their administrative systems were antiquated, inefficient, and vulnerable to corruption; professional and administrative staff were underpaid, poorly equipped, and lacked job security; and their clients (private lawyers and the public) had expectations (usually based on past experience) that did not encourage professional, objective decisions and actions. Thus, if legally mandated changes were to take hold, all these other elements had to be addressed as well.

The visible changes and partial improvements in the operations of Latin American judiciaries over the past decade suggest the systemic approach has had some success. Human rights abuses have declined; individual countries have reduced case backlogs and times for resolving at least some types of cases; more clients are being attended; judges appear more knowledgeable of the law, less arbitrary in their decisions, or at least less flagrant in their abuses; some courts have begun to remove corrupt and incompetent judges and administrators; countries characterized by extensive impunity have begun to try prominent citizens and officials; and judicial governing bodies (Supreme Courts or judicial councils) appear to be taking their jobs more seriously.

Still the advances have been uneven, both within and across countries. Some of the largest, most ambitious donor programs seem to have produced the least measurable progress -- USAID’s program in Colombia (supporting an extremely ambitious national restructuring of the entire justice sector) or the World Bank’s Venezuelan project are arguably two examples, although in both cases participants argue that it is too early to make this determination. Even in countries which seem to have done more, observers have questioned the quality or long term significance of their accomplishments. The new programs, as designed and implemented, often seemed driven by extraneous or counterproductive criteria, sometimes openly contradicting the accumulated lessons of earlier experience. More laws were rewritten, but attention to their intrinsic quality or the conditions for their effective implementation continued to receive short shrift. Monies were spent on infrastructure, equipment, or massive training programs, but appointment systems continued to be ruled by personal and partisan contacts; disciplinary and evaluation systems are nonexistent or underutilized, backlogs accumulate, and delays increase. Higher budgets, and greater judicial control of administration and financial management have sometimes produced still more opportunity for questionable use of resources, while the introduction of judicial councils has often transferred undesirable practices from the courts to the new entities. Efforts to depoliticize the appointment of Supreme Courts have not produced noticeably better candidates and have often meant a shift from one-party control to multi-partisan colonization. More independent courts or councils have sometimes escalated conflicts with other branches of government leading some citizens and many politicians to question the wisdom of their greater autonomy.

The interpretation and analysis of these situations have only just begun and the immediate conclusions vary widely. Skeptics argue that the new approach is not all that different from what preceded it and that its apparently greater success has other explanations. Many of the visible improvements can be attributed to other causes: larger judicial budgets, the weight of years of reform attempts, increased pressures from exogenous sociopolitical change [ 12 ], or the improved design of their component elements based on the accumulated lessons of past experience. Since the new systemic programs are of necessity much larger, it is also not clear whether it is a better strategy or just more, individually improved interventions that are responsible for the change. Larger programs increase the chances of hitting the right elements, but if these are relatively few, the rest of their investment may be superfluous. Moreover, this kitchen sink approach to reform also runs the risk of ignoring the critical interventions and thus, despite sizable investments, producing no significant improvement at all.

Its defenders argue that the systemic strategy does represent a qualitative change, that it does account for the real improvements achieved, and where its results have been less dramatic, it at most requires a little retuning. On the one hand, it may simply need more time; organizational and technical changes will have an impact on behavior if not as rapidly as had been hoped. New laws take time to be effectively implemented. Judges with computers and better filing systems will eventually adopt a new approach to their work. Courts or councils with management information systems will begin to use them to monitor performance and plan organizational development. On the other, the problem may lie in an inadequate attention to technical details -- in conjunction, the various elements will have the desired impact, but only if they are adopted in the correct form. From this comes a search for the best model for a judicial council, appointment process, training program, procedural law, or computerized information system.

For still a third group, however, the reliance on a broad spectrum of largely technical interventions is still not enough Aside from its possible waste of resources on less productive activities, the systemic strategy has been criticized for failure to prioritize its elements, its consequently unsystematic approach to change, and specifically, for its at best indirect attack on the underlying problem -- the interests and incentives that lie behind poor performance -- either leaving it untouched or allowing its transfer to the “reformed” structures. Even ten years ago, skeptics argued that making discrete repairs to a fundamentally flawed system might make the flaws more egregious. New laws and organizations will simply allow the old vices to emerge in different places. Training programs could teach the wrong values, better information systems could be used to exert more pressure on individual judges, and increased funding for equipment and infrastructure would allow greater opportunity for kickbacks. Few of these worst case scenarios have been realized [ 13 ], but the mix of remedies has often appeared to focus more on the superficial or second order problems than the basic complaints.

The past decade of reform efforts has expanded understandings of the nature of judicial weakness, the institutional factors encouraging it, and the variety of interventions which can alter the prevailing constraints. However, the utility of this knowledge hinges on its effective and purposeful application. The reform process itself and donor participation in it introduce their own disincentive system especially as regards the two most frequent criticisms - waste and misdirected efforts. Donors need to produce programs; judicial leaders and political elites will always accept more resources. Where the two interests most readily coincide may not be where change is most critical.

Purely cultural impediments to better reform design deserve more attention; they may be more difficult to overcome than simple corruption. A well -intended ally who backs an illogical remedy is harder to deal with than one motivated by personal gain. Local authorities often opt for poorly designed mechanisms because of cultural biases or a lack of familiarity with better alternatives. The number of courtroom and prisons designed by architects who didn’t understand their special requirements is one of many examples. The job often goes to a friend of the powerful, but the choice may lie as much in ignorance as in any intended personal advantage. When laws are approved with no consideration for costs of implementation, or merit systems are based on apparently irrelevant criteria, this is lack of experience, not personal benefit at work. In as inexact a science as judicial reform, there is still much room for informed differences of opinion, but this makes it still more important to take advantage of what we do know.

Misdirection of efforts are also likely when the logical national leaders -- the Supreme Court, a judicial council, a Ministry, the political elites, or a specially created “project implementing unit” -- are a part of the problem, either because they themselves benefitted from the existing situation, began with or developed a different agenda for the changes, or simply lacked the motivation, skills, or power to make it work. Reforms that did advance most often did so because of unique circumstances -- an unusually progressive Court or Chief Justice, an executive actor who adopted this as his cause, or a very intrusive donor community. These circumstances were not only unique, but fairly ephemeral. The Court changed, the minister left office, or the donor departed, and the impetus again disappeared

Institutional change is not only slow; it is also inherently unpredictable and messy. Anyone who thought they could design a comprehensive reform program to be implemented in five years was not living in the real world. However, excessive delays in some cases, massive investments with minimal or the wrong results in others, and the fewer instances of appreciable success do suggest that reforms must be more systematic as well as systemic in their focus, and that it may be time for a third generation approach, one which is more selective in what it attempts and how it attempts it, which prioritizes and sequences types of change, and which more closely examines the external and internal incentive systems it utilizes and attempts to alter. Before addressing these issues, the following summary of some lessons of experience is offered.

1. Over a decade of experience with donor assisted reform in Latin America has generated a good deal of knowledge about the institutional constraints on judicial performance and about the impact of various kinds of reform mechanisms especially as they shape the behavior of individual organizational members. If we don’t always know what works best, we can at least identify the potential benefits of and the problems to be avoided in introducing training programs, career systems, new laws, or administrative mechanisms.

2. Experience also suggests that there are no silver bullets. Effective institutional change works through a variety of interrelated mechanisms and depends on their joint influence rather than the impact of any single one. Nonetheless, more is not always better, and an effective strategy has to prioritize and sequence its elements.

3. In the design and implementation of reform programs, the very institutional constraints targeted for elimination are likely to impede progress [ 14 ]. Aside from the obvious problem of endemic corruption and thus the threat that reforms will be misused or directed to private gain, these include factors like weak planning and management skills, a lack of understanding or appreciation of nontraditional disciplines and technologies, excessive reliance on relational networks as opposed to merit or expertise in selecting staff, and a formalistic or principle driven rather than instrumentalist or results based approach to goal setting.

4. These constraints are particularly critical as regards the question of whom should direct the reform. Even when special units are set up for this purpose, they and their members are likely to be hindered by these same shortcomings, and if they are not, they frequently don’t survive long.. Project implementations offices are notorious for being staffed by poorly qualified friends and relatives of those who selected them, and for being more concerned about pleasing their patrons than about maximizing reform progress.

5. Not all differences have technical solutions and even those that do are usually linked to subjective preferences. A better understanding of how to train judges, or even how to link training to specific behavioral changes can still not resolve some fundamental questions as to what that behavior should be. We know ways to increase judicial independence, but have yet to arrive at a definition of how independent a judiciary should be. We can calculate the costs of different levels of judicial service, but the ideal level itself is a value choice. Thus cross-national comparisons of the percentage of budgets spent on justice are illustrative, but hardly definitive [ 15 ].

6. Judicial reform is political, not in the sense of partisan preferences, but because it like politics is about the authoritative allocation of values or who gets what, when, and how [ 16 ]. Whatever its long range impact, over the short run it will produce winners and losers -- justices or ministers who lose the benefits of controlling appointments, individuals whose ability to buy or sell judgments is curtailed, or those otherwise affected by the changing rules of the game.