Institutional Reform, Including Access to Justice:
Judicial Reforms in Latin America: Good News for the Underprivileged?

Chair: Juan Méndez, Inter-American Institute of Human Rights
Paper: Jorge Correa, Law School, Diego Portales University, Chile
Discussant: Leopoldo Schiffrin, Federal Court of Appeals, Argentina

The Helen Kellogg Institute for International Studies
Workshop on The Rule of Law and the Underprivileged in Latin America
9-11 November 1996

Judicial Reform

Correa stated that the amount, nature, and degree of the different initiatives aimed at reform might cause the observer to become overwhelmed. More reform efforts and more attention are aimed at the judiciary. Also, more activity and money is being invested in judicial reform than ever before. Some examples of reform are the following: Many countries have changed or are in the process of changing the way in which the judiciary is governed. Similarly, a number of countries have changed the way in which judges are appointed. Also, many countries are trying to move their criminal procedures away from the inquisitorial model. In nearly all Latin American countries, there are attempts to improve judicial education. There are reforms bearing on public prosecutors and public defenders. Attempts have been made to create mechanisms of alternative dispute resolution and an ombudsman. It has become fashionable to talk about judicial reform in Latin America. It is necessary to recognize the presence of the underprivileged in the reform process.

The causes of judicial reform are threefold: firstly, the tendency to diminish the role of the state, and the opening of markets in Latin America; secondly, political democratization; thirdly, an inclination toward and pressure for crime control.

Do These Reforms Mean Good News for the Underprivileged?

The underprivileged have themselves not done anything as an organized group to promote reform. However, ADR presents an opportunity for the underprivileged, as does the reform of the criminal codes. There is a shift of power between forums of decision-making and dispute resolution which is relevant to the underprivileged.

What is Changing?

The government is scaling back its role in society. It is also becoming less important as a forum for participation and a vehicle of social mobilization. Most of the decision-making process and power is being transferred to the market. This, however, is not the ideal place for the underprivileged to fight for their causes. Finally, there is a shift towards a more powerful judiciary. There is a shift toward more open discussion-through public interest litigation the courts are now being used more by the underprivileged.

 

Discussant's Comments (Leopoldo Schiffrin)

That judicial reforms will improve the possibilities of poor people to obtain access to the legal machinery cannot be taken for granted. The connection between judicial reforms and improved access for the underprivileged must be scrutinized. The following issues are of importance in this regard: The most important sphere in which improvements is required is that of defendants' rights. Similarly, victims' procedural rights need to be addressed. Regarding excess in police action, police officers have the power to imprison offenders charged with misdemeanors and put them to trail before an administrative police agency, the decisions of which are seldom challenged in court.

Court personnel may not be able to execute the new procedural rules. Argentinean experience has shown that most judges and other administrators of justice have not been able to do so capably. As long as politicians still manipulate the judicial system, there is no hope of fighting corruption and enhancing the prestige of the judiciary-necessary steps for the development of constitutional democracy.

The fight by the poor for fair treatment is the very fight for the rule of law. The rule of law will exist when all enjoy equal opportunity to seek judicial protection of their rights.

 

Floor discussion

Christopher Larkins, drawing attention to examples of extreme politicization of the judicial process and, in some countries, direct action taken to subvert the judiciary, noted the absence of public outcry. He wondered if combating crime might not be a starting point.

Marcelo Leiras (University of Notre Dame Department of Government and International Studies) drew attention to the implications of the wider policy framework within which judicial reforms occur. He suggested that the trend towards minimizing the role of the state, while strengthening the judiciary, might result in less protection for the underprivileged. Correa, emphasizing the need for an independent judiciary, stated that changes are occurring and that, therefore, there was a chance for the underprivileged.

Drawing on his experience in Argentina, Horatio Verbitsky (Página 12) stressed the vulnerability of judicial independence to attacks by the state.

Karen Poniachek (Council of the Americas) was interested to know what role the private sector was playing in judicial reform. Correa replied that although the private sector was not providing money, they were pushing for judicial reform.

Schiffrin stated that better access to justice can now be observed and is being implemented. The greatest problem of the system is that of an insufficient number of judges. International aid can do much with regard to legal assistance.

Mary Ann Mahony (University of Notre Dame Department of Government and International Studies) stated that social historians are showing that the poor are using the courts-when they believe it is in their interest to do so. She asked whether and how judicial reform would increase access for the underprivileged.

Jose Miguel Vivanco (Human Rights Watch/Americas) asked about the extent to which the problem of the increase in common crime and the inability of the police to deal with it have become an obstacle to judicial reform. He also wished to know if any efforts were being made to incorporate international human rights standards into the reform process. Emilio García-Méndez stated that he was uncomfortable with the term "underprivileged," as it posits privilege. Not enough attention is being paid to a demand for justice. The main problem of poverty in Latin America is that of poverty of citizenship.

Correa reiterated the need for an independent judiciary. There is a tension between guarantees, and law and order. There is a need to utilize the expertise of international lawyers in domestic courts. Judges need to be attuned to human rights.

Schiffrin, using examples from Argentina, showed that for many years the law and order movement has attempted to repeal guarantees-these attempts have failed. In Argentina, the restrictions imposed on defendants is the work of the courts-the Superior Court (established three years ago) has misinterpreted the guarantees. Finally, he noted that the law and order movement continues to narrow the scope of the new courts.