Latin America General Theory and Issues
Prillaman Toward a Theory of Judicial Reform in Latin America
Three Components of a Healthy Judiciary Each linked to judiciary’s ability to ensure the democratic regime, foster economic development and build popular faith in the rule of law Judiciary approaches concept of “quality justice” when it simultaneously demonstrates independence, efficiency and access.
Efficiency What elements?
Data from Justice Delayed Jarquin and Carrillo
Efficiency of the Criminal Justice System • Percent of inmate population accused or convicted • Argentina 82% • Chile 49% • Colombia 56% • El Salvador 80% • Panama 90% • Paraguay 92% • Uruguay 80% • Venezuela 66%
Duration of Civil Proceedings Average regular civil proceedings • Argentina more than 2 years • Chile 2 years, months • Colombia 2 years, 9 months • Costa Rica 10 months, 1 week • Paraguay more than 2 years • Peru 4 years, 6 months • Uruguay 8 months
Backlog of cases • Percentage of cases postponed • Argentina 94% • Bolivia 50% • Chile 5.7% • Colombia 37% • Ecuador 42% • Peru 59%
Resources Allocated to Justice Systems • Other countries I found data on: • Philippines: slightly over 1% • Pakistan: .2% • Romania: 1.7% • Most Anglophone African countries: less than 1% • Percent of budget allocated to justice • Costa Rica 5.5% (closer to 1.5%) • Colombia 4.6% • El Salvador 4.5% • Bolivia 3% • Ecuador 2.5% • Uruguay 1.5% • Paraguay 1.5% • Argentina 1.4% • Honduras 1.0% • Chile .75% • Panama .50%
Number of Judges per 100,000 population • Colombia 17.1 • Uruguay 15.5 • Argentina 11.0 • Costa Rica 11.0 • El Salvador 9.0 • Bolivia 8.0 • Nicaragua 7.8 • Ecuador 4.7 • Chile 3.8 • Guatemala 3.0 • Spain 3.0 • United States 2.0 • Netherlands 2.0
Underfunded, ill-equipped, poorly organized, and lacking modern record-systems Spend inordinate amount of their time on administrative tasks: 70% in Argentina, 65% in Brazil, and 69% in Peru…
Access What does this entail?
Percentage of public viewing the judiciary as inaccessible to the average citizen • 47% in Ecuador • 67% in Venezuela • 66% in Peru said they wouldn’t seek redress through courts if they were victims of crime
Geographic distance also a problem EX: Peasants in most parts of Peru would need to travel an average of 52.3 kilometers to reach a court to solve a legal dispute
Rule of law Therefore in order that the rule of law remain, operative citizens need to trust the institution charged with its keeping. Given the vulnerability/weakness of the courts as institutions, courts need public support to function adequately. Requires some institution to protect it while also itself adhering to it (the rule of law)….
INDEPENDENCE: For Prillaman Key Issue FEARS: INSULARITY A healthy judiciary requires a balance between independence and accountability.
Owen Fiss • It is simply not true that the more insularity the better, for a judiciary that is insulated from the popularly controlled institutions of government has the power to interfere with the actions or decisions of those institutions, and thus has the power to frustrate the will of the people…We are thereby confronted with a dilemma. Independence is assumed to be one of the cardinal virtues of the judiciary, but it must be acknowledged that too much independence may be a bad thing. We want to insulate the judiciary from the more popularly controlled institutions but should recognize at the same time that some elements of political control should remain.
AN ADDITIONAL issue beyond Prillaman General consensus: throughout Latin America judiciaries have greater degree of EXTERNAL independence (especially from executive and military) BUT less INTERNAL INDEPENDENCE!
Truth Commissions Concluded The judiciary failed to protect citizenry from arbitrary detentions, torture, and official killings
Argentina’s “Dirty War” 1976-1983 15,000 people disappeared and unaccounted for or known to have been killed Systematic and CENTRALLY planned state terror 340 concentration camps identified
Chile • Up to 50,000 tortured • Almost 4,000 deaths • Over 1200 deaths in first week after the coup • Reports of 8,000 disappeared
El Salvador • 1.4% of the population killed • Truth Commission • Testimony on over 7,000 cases of deaths, disappearances, torture, rape, and massacres
Guatemala 30 years: over 200,000 deaths and disappearances In 1980s entire villages razed and tens of thousands massacred
Goals? • Peace • Reconciliation • Justice • Truth • Reparations • Healing • Reform of institutions • Rebuilding trust in government, police, armed forces • Prevention CONFLICT AMONG THE GOALS?
HAYNER: The first and most prominent of demands is justice What inherently makes achieving justice so difficult?
Hayner defines/distinguishes truth commissions • FOUR CHARACTERISTICS: • focus on the PAST • investigate a pattern of abuse over a period of time, rather than a specific event • temporary bodies that complete with work with published report • officially sanctioned and authorized by the state
The Courts Why might the courts be a less than satisfactory venue to achieve these goals? What advantage might TRCs have?
1) To discover, clarify, and formally acknowledge past abuses “Knowledge that is officially sanctioned, and thereby made a ‘part of the public cognitive scene’…acquires a mysterious quality that is not there when it is merely the ‘truth.’ Official acknowledgement at least begins to heal the wounds.” Juan Mendez “The past is an argument and the function of truth commissions, like the function of honest historians, is simply to purify the arguments, to narrow the range of permissible lies” Michael Ignatieff
3) Contribute to justice and accountability Problems and difficulties The question of naming the guilty
5) Promote reconciliation and reduce tension from past violence Tension between this goal and others.
Examine Truth Commission findings along with Prillaman’s findings and arguments about judicial reform for our Latin American countries.
Judicial Protection of Human Rights in Latin America Heroism and Pragmatism (Brian Turner)
Defense of human rights from the bench not a simple matter Justices are representatives of the law and of an institution of the state…
Do not have the luxury of moral puritanism Hold positions of authority but their power to influence events is rather weak
The Concept of Judicial Heroism Southern Cone since 1964 (Argentina, Brazil, Chile, Paraguay, and Uruguay)
Natural law or appeals to higher moral code would require defense of human rights As does international law NOT a part of judicial tradition Absent/conflict with penal code Judicial tradition: straightforward application of statutory law Socialized to a system based on the supremacy of statutes Quite a leap to apply radical judicial doctrine outside the traditional sources to counter statutes. Moral-Formal Dilemma Leads to dissonance Adapts from Robert Cover’s Study of pre-Civil War judges in US
To reduce dissonance judges resort to three strategies • Elevation of the formal stakes • Retreat to a mechanical formalism • Ascription of responsibility elsewhere
Latin American judicial behavior Response to military coups
Judges have four choices after a military coup Resign, capitulate to military power, resist that power, or chart a pragmatic course.
Latin American judicial behavior Response to military coups • Brazilian Supreme Federal Tribunal • Successful pragmatism at first but then succumb, try again and are beat down • Argentina Poder Judicial • Purged and capitulate • Uruguayan Supreme Court • Pragmatic avoidance and then challenge, ultimately succumb • Chilean Supreme Court • Most complete capitulation
Latin American judicial behavior Response to democratization—eventual election of civilian governments Variety of new dilemmas regarding the administration of justice, rule of law and judicial independence
Turner concludes judicial defense of human rights depends upon The judiciary itself. • Must develop traditions that value political liberty more than formalism and provide creative justices the support necessary for positive defense of rights • Must be willing to support its traditions of judicial independence and judicial review.