Institutional Reform, Including Access to Justice:
Access to Justice for the Poor In Latin America

Chair: Juan Méndez, Inter-American Institute of Human Rights
Paper: Alejandro Garro, Columbia University Law School
Discussant: Sérgio Adorno, University of São Paulo, Brazil

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

At the outset, it is important to define what is meant by certain terms. "Underprivileged" means the most vulnerable sections of the community. "Access" implies that there are obstacles in the way of the achievement of justice.

Access to justice is a critical element of the legitimacy of law. If people are to be governed by the rule of law, it must be accessible: otherwise, it loses legitimacy. What, then, is the rule of law? It occurs when criminal responsibility, rights, and obligations are determined on the basis of rules adopted by some form of popular consensus. The rule of law also calls for fair application of norms by an independent judiciary.

The Rule of Law

The implementation of the rule of law faces specific problems in the context of Latin America, where there is tension among the legacy of authoritarian regimes and liberal ideas about equal protection, freedom of thought, and universal application of the law. The rule of law is molded by historical and cultural factors pertaining to the production of these rules. It is also important to note that such factors have shaped the ways in which these rules are applied. Therefore, any critical analysis of the implementation of the rule of law and access to justice calls for an analysis of the fundamental elements of the rule of law. A distinction needs to be drawn between two different aspects of this matter: Firstly, the recognition that rules need to be improved to eliminate existing biases against the disadvantaged sectors in society. Secondly, the dysfunctional operation of the rule of law in Latin America implies that existing legislation is not implemented in the way it should be, due to a variety of obstacles.

The question of how the poor can enforce their rights has received sparse attention in Latin America, with the possible exceptions of Chile and Brazil. Nevertheless, there is consensus that equal protection under the law is a fundamental right. Theoretically, there is the assumption that everyone has equal opportunities to vindicate their rights and that legal assistance is a fundamental right and an important component of a fair trial.

To what extent is access to justice essential for an accountable democracy? To what extent can the free market operate without access to justice? Predictable application of the law by independent tribunals is required if accountable democracy and the free market are to function effectively.

What Will It Take to Improve and Universalize Access to Justice in Latin America?

The existing programs for the poor in Latin America are poorly run and underfinanced. As a result, they are overburdened and understaffed. It is not surprising, then, that the benefits of existing legal services do not reach the majority of the poor.

The connection between judicial reform and access to justice is at the forefront of modern debates over access to justice. In the first place, it is important to recognize that charitable legal aid programs cannot ensure the provision of access to justice. The rationing of justice, leaving the poor to the forces of the marketplace (where they are unable to defend themselves), is wrong. Access to justice cannot do without government support, but more is required than simply government-subsidized programs. Equal and open access to slow and questionably neutral and independent decision-makers is unlikely to bolster the legitimacy of the rule of law. Access to justice has not been included in the World Bank program for judicial reform. Every effort should be made to place this on the agenda.

Secondly, existing legal services programs focus on the defense of individual claims and are reactive and court oriented in nature. It is important to encourage the poor to turn to the courts. It is not enough to shape the rule of law in a way which increases thebargaining power of individuals and groups in the judicial process. Thirdly, there are issues that should be insisted upon in programs of reform: resources, judicial independence, the cost of litigation, the adjustment of procedural mechanisms of dispute resolution to the goals of efficiency and fairness, finding alternatives to expensive court litigation (e.g., ADR), changing the frame of mind within which lawyers operate, changing the image of judges and lawyers, and finally, changing legal education in order to sensitize students to issues relevant to the underprivileged.

 

Discussant's Comments (Sérgio Adorno)

Access to justice is to be viewed as part of an overall process of change in which civil society and political actors become actively involved. Garro's proposal to analyze different legal assistance programs for the poor in Latin America is convincing. The exposition of existing legal services is reflective of the judicial reality of contemporary Latin American societies. However, the characteristics of these programs must be considered according to the social, political, and economic characteristics of each Latin American society.

A serious challenge to the democratization of justice is not only to make the courts and legal services available to all, but to change the conception of justice as individual and reactive. There is a need for legal aid programs able to correct social injustices. Also, it is necessary to formally recognize those social groups that fight for their rights.

Proposals for reform, which include the independence of the judiciary, reduction of litigation costs, and creation of mechanisms which widen access of the poor to justice, are needed. However, Garro does not succeed in breaking from the traditional sociological profile of those citizens who fight for equal justice. It is necessary to take into account the authoritarian and conservative legacies of Latin American societies. Furthermore, the survival of authoritarianism shows that those who are committed to democracy have not yet succeeded in their fight. The judicial apparatus is itself a powerful obstacle to an effective distribution of justice, particularly for the poor.

The following issues need to be debated: Firstly, are the new forms of access for the poor effective in ensuring an accountable democracy? Secondly, why do authoritarianism and conservatism still exist, despite reforms which aim to open access to justice for poor people? Thirdly, are these new procedural mechanisms powerful enough to change traditional relations which constitute an obstacle to the consolidation of democracy in Latin American societies?

 

Floor Discussion

Jorge Madrazo (Comisión Nacional de Derechos Humanos, México) questioned whether or not distinct tribunals for indigenous peoples-staffed by indigenous judges and applying indigenous law-would increase access to justice. Garro replied that there was a role for customary or traditional law in dispute resolution, in so far as it was not inimical to basic human rights. In his view, creating separate tribunals was not desirable in principle: historically, such tribunals have been associated with the privileging of the claims of certain citizens. He was, however, more amenable to special tribunals where access to a tribunal was determined by the nature of the dispute in question rather than the status of one of the parties to the dispute.

Mariclaire Acosta drew from her experience of separate tribunals catering for indigenous groups in Mexico. She observed that the issue should be seen in the context of calls for self-government. She stressed that access to ordinary court systems should still be addressed.

Ligia Bolívar was concerned that promoting distinct tribunals for indigenous groups might lead to "second-class justice for second-class citizens with second-class disputes." In her view, the nature of the dispute in issue should be determinative of both access to justice and any decision to compromise claims. Garro agreed that the nature of the dispute at issue should be the determinant as regards the application of alternative dispute resolution or extra curial dispute resolution processes. An issue of public noise is susceptible to community-based dispute resolution. By contrast, the matter of domestic violence is a public concern and should be dealt with in the criminal courts.

Paul Chevigny stated that the fee structure in the legal profession could impact upon access to justice. In particular, contingent fees could be of assistance in facilitating greater access to justice. Garro echoed these sentiments. He pointed out that some Latin American countries do allow contingency fees, without which many underprivileged plaintiffs would not be able to gain access to court. He observed that the provisions of the Law of Costs provided a disincentive to litigation, in so far as the losing party was required to pay the attorney's costs of the winning party.

Jean-Paul Brodeur emphasized that legal access was to a large extent dependent on the levels of legal education in a population. Adorno echoed this, pointing out that income was not the only determinant of access to justice. The generally conservative mind-set of judges and the wider problems of the construction of citizenship in society also impact upon access to justice. Education is vital: people will not feel encouraged to approach courts to resolve problems if they neither know their rights nor are aware that the court can address disputes involving rights. Madrazo cited the results of a survey in Chile, which showed that the underprivileged wanted education concerning the functioning of the legal system. He also advocated a broader interpretation of access to justice: This should encompass not only access to courts, but also access to the law-making process.