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

Some Unanswered Questions on the Role of Judicial Institutions and Societal Expectations:
The questions of costs and efficiency already address part of this issue. They are inherently political although technical expertise can help guide and invent solutions. There is, however, a still more political set of questions which the reforms have treated only superficially, having to do with the more strictly political role of the judiciary -- its functions as a branch of government.

This issue had traditionally been addressed as one of judicial independence, with the underlying assumption that it was an undebatable, universal goal. Equally traditionally, its realization had been sought through efforts to increase the judicial budget, to give the judiciary control over its use, to create a judicial career with merit based, tenured appointments, and to expand the judiciary’s power to review the actions of other branches of government. Progress in reaching these goals has brought a variety of unanticipated consequences and a resulting reconsideration of their desirability. First, in a number of cases, judicial independence has out paced reform, giving certain judiciaries more freedom to exercise their traditional vices -- misuse of resources, politically motivated decisions, and in some instances partisan conflicts or alliances with other branches of government. Second, a few governments have manipulated the reform measures to overtly political ends -- using permanent appointments to lock in their candidates, transferring their partisan interference to new bodies (councils), or dividing judicial powers among a variety of entities to diffuse their impact and lessen the chances of their effective use. Finally, even when the reforms have occurred as intended, elites and ordinary citizens have begun to question the extent of judicial independence, and raise a second, neglected issue, that of accountability.

The three scenarios are all relevant, demonstrating that independence is, like most values, relative not absolute. An absolutely independent judiciary, which answers only to itself (no accountability) is as much of a problem as one that is absolutely dependent. It may pursue objectives that no one else values, or which clash with those of the society it serves; it may become a class unto itself, impervious to new needs and divorced from the surrounding society. The dilemma is how to decide which values it should embrace, how to structure this into its organization, and how to check it when it violates them. Simply saying that the judiciary is responsible to the law is not enough; judges interpret the law and their interpretation in the end decides what the law is, to whom, and how it will be applied. When laws conflict, as they often do, even at the level of constitutionally guaranteed rights, judges will decide which rule prevails. When their decisions are based on appreciations which do not match those of their societies, or which coincide only with those of certain social groups, they will generate rather than resolve conflicts and eventually undermine their legitimacy and legitimizing role.

Over time, judiciaries develop ways of dealing with these dilemmas, their own informal rules for determining how and when to handle hard decisions. Reform, however, works almost exclusively on the formal rules. Although changes at this level will eventually produce a new set of informal behaviors and understandings, they develop more slowly and in less predictable fashions. The best social engineering cannot prevent unpleasant surprises, but reforms which explicitly address the judiciary’s dual role -- as public service and political power -- which confront the contradictions of independence and accountability, and which by looking at past problems and others experience, anticipate where conflicts will emerge may be able to deal more creatively with the inherent tensions and so to guide informal solutions.

All reforms have losers and winners. Although some self-perceived losers will accept their sacrifices in the interest of a common or long term good, most will either resist proposed changes or attempt to divert those they believe to be most harmful. Resistance or diversion may be overt or concealed, partial or global, internal or external to the organization, and at all levels within and outside it. It is most obviously a problem when it occurs at the highest political and organizational levels, but lower level opposition, aside from subverting reform, may also undermine higher level commitment. Leadership’s interest in reform may lag as the costs of overcoming opposition increase and the prospects of visible improvements begin to look more distant. It is probably fortunate that so few of the technical and political difficulties are evident when a reform is initiated, but their unanticipated emergence can also produce partial or total paralysis of efforts.

It is commonly insisted that reforms only be undertaken with sufficient political will [ 27 ] -- that is the commitment of highly placed political and organizational elites. It is equally common to find that what will existed at the onset was less than had been imagined, or was insufficient to meet the increasing demands placed on it. It takes one kind and level of will to accept a loan or grant for a judicial school or to propose a new law; it takes quite another to push the law through Congress and guarantee its enforcement, to introduce standards for judicial performance, or to change the rules for appointing judges and their staff, especially when those doing the willing stand to lose traditional powers and privileges in the process. This does not imply that lagging commitment is always self-interested. It can also be a function of insufficient power -- those leading the reform may find they lack the resources and skills to push it ahead. Whatever the specific reasons, and they clearly deserve more exploration, inadequate political impetus is probably as great if not a greater obstacle to reform progress as sheer technical and design constraints. This in some sense turns the usual principal/agent [ 28 ] dilemma on its head -- the problem here is not how to control the agent, but rather how to identify an adequate principal to lead reform.

The realization has reactivated a debate over who should direct a reform, with the logical candidates usually being the judiciary itself or the executive. Each has obvious advantages and drawbacks, as does the compromise solution of dividing the responsibility between the two. Where any of these alternatives has been successful, it is usually not because of inherent institutional characteristics but rather because of the emergence of a uniquely dedicated, visionary leader or group of leaders and thus is limited to that individual(s) stay in office. Such messianic leaders are rare, and not themselves immune to biases, self-interest, and lagging commitment. From the standpoint of encouraging an ample definition of objectives and ensuring that more particularlistic agendas do not drive or inhibit reform, it may be well to look beyond the traditional solutions. One possibility is the creation of an artificial principal -- a directive alliance or consortium rather than a single organization, group, or individual. While primary responsibility for directing the reform may be lodged with one entity -- the Court, an implementing unit, a ministry -- other members would share in setting the agenda, monitoring implementation, and eventually deciding whether to continue or not. Ideally such other members might include a variety of reform stakeholders -- representatives of other branches of government, the broader legal community, and citizen groups. The hope is that collectively they may override more particularistic agendas and thus push for a reform which realizes a common good.

A variation on this theme might encourage the formation of an external consortium of public and private interest groups to monitor public sector performance and develop practical proposals to advance reform. To have an impact, this alliance would have to alter a number of traditional orientations and practices of Latin America’s civil society organizations, seeking a less confrontational stance toward the public sector (and toward each other), inviting the participation of economic stakeholders, and shifting from open-ended criticism to the development of technically viable proposals for change. They will also have to accept incremental improvements as a goal, rather than the pursuit of utopias, and to recognize that justice reform is reform, not revolution. However, unless civil society can find a voice and articulate a program, they will by default leave reform in the hands of public sector actors whose interests and purposes will reflect narrower concerns and perspectives, and whose ability and willingness to further any agenda may be similarly limited.

Expanding the stakes in reform enactment is not an automatic solution. It may result in slower implementation and less ambitious objectives, and may generate additional conflicts. It does not resolve the problems of inadequate subjective models and other cultural constraints, inexperience, or more broadly inclusive, but still self-serving agendas. Such collective agencies have already been attempted, and observers have noted their tendency to adopt the fireman’s syndrome [ 29 ], an implicit agreement that members will not criticize each others proposal for fear of cutting off funding. This is one area where the participation of external donors may be helpful. First, they can help create and support the directive alliance or external consortium of stakeholders. Second, they can raise the level of technical input, and as mentioned earlier, ensure that actions are fully informed by their own and others experience in comparable reforms. Donors may not fully appreciate local needs and circumstances, but they do have experience and potentially useful technical expertise which can help avoid repeating common mistakes. Third, they can help set and enforce the agreements on specific objectives, procedural rules, and substantive benchmarks and continued monitoring to ensure compliance. These agreements should extend not only to local parties, but also to the donors themselves to ensure a common coordinated effort. Unfortunately, donors’ record here has not been very positive.

For the earliest reform programs, donor coordination was not a problem because there was usually only one donor on the scene. However, in recent years, a veritable flood of donor funded projects has considerably altered these circumstances, offering the potential both for greater change and for counterproductive conflicts. It is not uncommon, both in Latin America and elsewhere, for national actors to use this situation to their own advantage, playing off donors against each other, avoiding conditionality, and producing programs still more disjointed than the worst that had gone before. True, it is largely the donor’s funds that are at stake, but for the country, there are lost opportunities, wasted efforts, increased debt, and the dangers of initiating practices or systems which will be unproductive and costly to maintain. The solution to the problem will take efforts on both sides. Donors must find ways to coordinate their own activities and countries should insist on this coordination and also decide on their own priorities. National beneficiaries must also learn to say no -- where proposed activities make no sense, are redundant, or are beyond their capabilities to absorb or maintain.

Ideally, the format for all of this is a single sectoral reform plan, allowing the negotiated integration of national and donor efforts. While donors would not set the plan, they could provide technical assistance for its formulation, would be invited to comment on it, and would suggest modifications, both as regards its general content and their anticipated contributions. Any such plan could be expected to undergo continual revisions, but they too would be openly discussed and negotiated, with input from private as well as public sector actors. A few countries have already attempted such plans, although none has been able to use one as an effective guide for international assistance or even for purely national efforts.