From issue: Gender Equality: Political Backrooms, Corporate Boardrooms and Classrooms (Summer 2012)
The Uphill Battle of Justice Reform
The strength of democracy depends on how well judiciaries perform.
The strength and quality of democracy depend on how well judiciaries perform and function. In Latin America, after more than 20 years of judicial reforms, there have been some notable achievements. But there is a long way to go before judiciaries can adequately carry out their responsibilities to resolve conflicts, define and interpret rights and laws, and provide the framework for accessible, impartial systems of justice.
The judicial reform movement that began in the 1980s—an effort that accompanied the rebuilding of democratic systems—sought to overhaul existing penal codes and procedures to respond to citizens’ claims of human rights violations, and to pursue truth, justice and accountability for abuses committed during the dictatorships. Reforms were later expanded and deepened, while others did not take effect until the late 2000s.
In each country, local politics and bureaucratic inertia often slowed the pace of reform. For example, procedural code reforms were enacted in 1998 in the Argentine province of Buenos Aires and in Costa Rica, but full implementation of pretrial public hearings did not begin to take effect in several Buenos Aires jurisdictions and in Costa Rica until 2005.
Establishing the ground rules for change has not been a smooth process. Long-buried interests within civil society sometimes came into open conflict. Social activists demanded that legal and judicial systems be updated and made more efficient, effective and accessible to vulnerable groups. Business people demanded compliance with the law, respect for property rights, and clear, stable rules of the game. Yet creating a broad-based coalition that supports reforms is vital for their success.
Progress has been mixed. In some cases, reforms have been successful, but in other countries they were instituted as a short-term response to temporary problems and contained few measures to achieve effective implementation and evaluate impact. This mixed bag of results has, unsurprisingly, led to questions about the reform movement’s effectiveness.
The Wrenching Change from Inquisitorial to Adversarial Systems
The overriding challenge of judicial reformers was systemic: changing from inquisitorial systems, in which judges and prosecutors are responsible for both investigating charges and determining guilt through written deliberations behind closed doors, to adversarial systems, in which the facts of a case are argued by opposing counsel before a jury in open court and the judge is intended to act as an impartial referee. The transparency and assumed impartiality of adversarial systems provide greater protections for the integrity of the process, defendants’ rights and the timeline for a decision. But only if the system works well. Getting there requires an intense bureaucratic, infrastructural and legal pedagogical shift.
With the exception of Uruguay and Brazil, governments across Latin America in the past two decades moved to adversarial systems. In some countries, such as Guatemala and Costa Rica, the transformation began as early as the 1990s; in others, such as Mexico and Peru, the changes were more recent.
At the time they were launched, the changes enjoyed broad support. Decades of injustices incurred under the inquisitorial system had taken their toll, and there was a near-universal feeling that the system was ineffective in fighting crime.
Countries such as Argentina (1998), Costa Rica (1998), Ecuador (2000), and Chile (2000) introduced wide-ranging reforms, but with limited results.1 Here, the scope of change was too great. The reforms required changing how jurists were trained, creating courtrooms with procedures to record oral proceedings, establishing defenders offices, and changing how evidence was collected and presented. These countries have now shifted to implementing basic aspects of the reforms in specific jurisdictions rather than rolling them out nationwide.
A second group of reformist countries, including Colombia (2005), Dominican Republic (2004), Bolivia (2000), and Nicaragua (2001), sought radical changes: new codes; new forms of organization; and new roles and responsibilities for courts and other organs of the judiciary. But certain countries in this group could not muster sufficient political support to achieve their ambitious goals.
For example, Bolivia failed to generate real changes in the functioning of the judiciary. In Colombia, however, the reform took advantage of policies already implemented—modernization of the prosecutors’ offices and their procedures, the use of alternative dispute resolution, and the development and collection of statistics—to make the reform process effective.
This second group of reforming countries did, however, benefit from two ways in which reforms were carried out: gradual implementation and creation of monitoring bodies. The incremental implementation can limit complexities and achieve support for the next steps in each aspect of the reform. And offices established to monitor and evaluate implementation (while sometimes criticized as an unnecessary expense) have helped to generate awareness and greater overall buy-in.
Policy changes focused on the idea of establishing criminal codes that aligned with democratic values as well as with the standards of international human rights treaties. Transparency, impartiality, guarantees of due process, oral arguments, and the protection and rights of victims were the underlying principles behind new laws across the region: Bolivia (Ley 1970), which came into force in 2000; Chile (Ley 19.696), which went into effect in 2000; Colombia (Ley 906), which went into effect in 2005; Panama (Ley 63), enacted in 2009; and Peru (Decreto Supremo 005-2003-JUS), which came into force in 2006.2
While the specifics of each law differed, all were intended to lay the groundwork for moving to adversarial systems. These included strengthening the guarantees for the defendant; establishing preventive detention as an exception; recognizing a victim’s rights to be heard and informed; transforming the investigation process; determining clear roles for judges, prosecutors and public defenders, including instituting the judge as a neutral referee; proposing new alternative ways for conflict resolution; shortening the judicial process; establishing oral and public trials; and requiring that the court issue a judgment immediately after a trial...