Judiciary in Latin America, The
Judiciary in Latin America, The
The historical origin of the Latin American judiciary lies in the constitutions that came into effect in most of the region after 1810 when the individual nations gained their independence. These constitutions draw on the legal concepts prevailing in continental Europe during the period and recognize the existence of three branches of government and the independence of the judicial branch. The political model that was implemented provided for a presidential executive with broad powers, including the power to suspend constitutional rights in emergency situations, along with weak legislative and judicial branches that would be subject to repeated intervention by the executive.
With the exception of the countries belonging to the English-speaking Caribbean, all the nations south of the United States have judiciaries based on the continental European tradition. In its most usual version, this tradition merges principles and practices that clearly differentiate the role of the legislative branch from that of the judicial. The former is responsible for debating and approving generally applicable laws that judges may interpret only in the specific cases they hear. This tradition demonstrates a certain degree of mistrust toward judges' having a creative role in law and does not license judges to weigh decisions differently when factors such as public well-being are at stake, restricting them to a purely exegetical interpretation of the law. This rejection of judicial activism, more characteristic of the North American tradition, was consistent with political systems in which the judiciary lacked full autonomy. The history of these systems is one of ongoing political interference that has weakened or done away with judicial independence. In Argentina in 1946, a Congress dominated by Peronists backed constitutional accusations against all the members of the Supreme Court. The military coup that deposed Juan Domingo Perón in 1957 proceeded to remove all the judges of that court from their positions. More recently, in 1990, Argentine President Carlos Menem added four members to Argentina's Supreme Court to ensure for himself a majority that supported his point of view. There are plentiful examples of similar practices. In Peru there have been three interventions in the judiciary since 1968. A new law approved in Venezuela in 2004 increased the number of Supreme Court judges from twenty to thirty-two, with only a simple majority in the National Assembly required to confirm a nominee, thus permitting government control over the Court. Legislation also facilitated the suspension or removal of Supreme Court judges on unspecified grounds.
The diminished position of the judiciary has been the target of severe criticism. During the 1990s, the beginning of redemocratization in several countries created conditions that fostered a process of judicial branch reform. Governments have implemented this reform with support from professional and human rights agencies that have in turn received technical and financial support from international agencies such as the World Bank, the Inter-American Development Bank, and the U.S. Agency for International Development (USAID). These reforms have been intended to remedy a number of weaknesses, including judiciaries lacking sufficient independence and impartiality, outdated legislation, and procedures that sometimes conflict with constitutional rights. Judiciaries in many countries suffer from a marked shortage of trained, qualified judges, lack of professional management, lack of an effective system for overseeing judicial ethics, and low budgets.
Partial improvements are evident in each one of these areas. Progress has been made in establishing a merit-based method for selecting judges for lower courts and it is complemented by more rigorous training processes based on practical cases. Some countries that have done this well are Chile, Guatemala, the Dominican Republic, and Argentina. With the exception of those in Costa Rica, Argentina, and Brazil, all of Latin America's judicial schools were established in the 1990s. Another point worth noting is that considerable efforts have been made to reform outdated legislation and procedures. The main focus in this regard has been on reforming criminal law procedure, replacing the traditional written inquisitorial system with an oral accusatory system. This reform has taken place in sixteen of the nineteen countries that have continental European juridical traditions and is at various stages of the integration process, ranging from complete effectiveness throughout the national territory (as in Costa Rica and Chile) to partial but ongoing implementation in countries such as Peru. The process has entailed the massive retraining of judges, government attorneys, public defenders, and police. In some countries, such as Chile, it has led to the creation of an Office of the Government Attorney and an Office of the Public Defender. The "Monitoring of Criminal Procedural Reforms" project undertaken by the Centro de Estudios de Justicia de las Americas (Justice Studies Center of the Americas, CEJA) has revealed that the ten countries analyzed have made various levels of progress in the field of criminal procedural reform. In addition to reforming the criminal process, there has been an expansion of the jurisdiction of the courts. In many countries, new courts have been set up to address social conflicts, for example conflicts within families and among young people.
There have also been reforms to the internal management of the judiciary. These include reforms of organization and administration as well as incorporation of information technologies into the work of the courts. Many of these programs have international financing; Venezuela, Guatemala, El Salvador, Peru, and Colombia in particular receive significant funding from external sources such as the World Bank, the Interamerican Development Bank, the United Nations Development Program, and USAID among others. It is also possible to find improvements, although not very significant ones, in human and budgetary resources. Thus, for example, the number of federal judges in Mexico increased by 25 percent between 2000 and 2004 and by 40 percent in Colombia. Funds per capita allocated to the judiciary have been rising in the region, from USD$16 between 2002 and 2003 to $19.30 between 2004 and 2005. These changes are a sign of significant progress.
See alsoArgentina, Constitutions; Argentina, Truth Commissions; Bolivia, Constitutions: Overview; Brazil, Constitutions; Chile, Constitutions; Colombia, Constitutions: Overview; Costa Rica, Constitutions; Guatemala, Constitutions; Haiti, Constitutions; Honduras, Constitutions; Inter-American Development Bank (IDB); Menem, Carlos Saúl; Mexico, Constitutions: Constitution of 1917; Nicaragua, Constitutions; Panama, Constitutions; Paraguay, Constitutions; Perón, Juan Domingo; Peru, Constitutions; Peru, Truth Commissions; Truth Commissions; Uruguay, Constitutions; Venezuela, Constitutions; World Bank.
Frühling, Hugo. "Judicial Reform and Democratization in Latin America." In Fault Lines of Democracy in Post-Transition Latin America, edited by Felipe Agüero and Jeffrey Stark. North-South Center Press, 1998.
Gutiérrez Palma, Mauricio. Reporte sobre la Justicia en las Américas: 2004–2005. Santiago: Centro de Estudios de Justicia de las Americas (CEJA), 2005.
Hammergren, A. Linn. Envisioning Reform: Improving Judicial Performance in Latin America, University Park: Pennsylvania State University Press. 2007.
Popkin, Margaret. "Efforts to Enhance Judicial Independence in Latin America: A Comparative Perspective." In Guidance for Promoting Judicial Independence and Impartiality. Revised ed. Washington, DC: Office of Democracy and Governance, U.S. Agency for International Development, 2002. Online at: http://www.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacm007.pdf.
Riego, Cristián. "Segundo Informe comparativo Seguimiento de los procesos de reforma judicial en América Latina." Revista Sistemas Judiciales 5 (September 2003): 1-8. Also available from www.cejamericas.org.
Ungar, Mark. Elusive Reform: Democracy and the Rule of Law in Latin America. Boulder, CO: Lynne Rienner Publishers, 2002.