Increasing judicial independence and improving the management of courts have been central to judicial reform efforts around the world. A common approach to both has been to create an independent judicial council, responsible for selecting judges and administering the courts. In Latin America, these functions were sometimes performed by ministries of justice, but more often fell to the Supreme Court itself.
This paper attempts to draw lessons from Latin America’s experience with judicial councils. It suggests that disappointments with council performance arise primarily in a failure to understand the nature of the problems under attack or the more complex mechanisms required to resolve them. Adequately designed and implemented, councils can help break institutional bottlenecks and temporarily reduce traditional forms of political interference. However, the creation of a council is no guarantee that improved practices will be introduced. In fact, the biggest difficulty in adopting a council model is the expectation that other problems will sort themselves out automatically.
The situations confronted in Latin America when adopting judicial councils were considerably different from, and more complicated than, the European experience. The main findings are that:
- There was a lack of clarity on how to achieve the goals of judicial independence and improve administrative management – councils were proposed prior to objectives being defined. This has continued to obstruct the delivery of desired results
- In terms of a council’s composition, method of selection and conditions of appointment there is a wide variation in different Latin American countries, belying the notion of a single model
- Councils have been beset by internal battles, had conflicts with the Supreme Court and have been unable to organise themselves to do their assigned tasks. They have often further eroded rather than improving the prevailing lack of institutional coherence and internal “desgobierno” (disgovernance)
- Councils have managed to stop some external influence and individual judges have benefited from a more transparent selection process. The need for patrons has been partially eliminated by systematic selection systems
- Improvements in quality and performance of judges have not increased as expected. Councils tend to make small improvements in pre-existing practices rather than inventing new systems. They have focused almost exclusively on “quality at entry,” and largely ignored improving performance on the bench
- Councils have been accused of building personal bureaucracies. They have also been no better at administration than whatever body they supplanted and there has been a failure to admit that the underlying problem is a non-managerial outlook.
Judicial councils are one aspect of reforms. They are useful if they are selected and organised well for the tasks at hand. Success depends on a good diagnosis of problems, the selection of appropriate solutions and skill in implementing them and overcoming opposition to change. The main recommendations are that:
- Greater emphasis be given to developing a more ‘institutionalised’ judiciary—with effective internal norms and a clear separation from its external environment, It would be less permeable to external intervention of all types and more capable of enforcing rules among its members
- Quality at entry is only a first step. A career judiciary needs well-designed monitoring, evaluation and disciplinary mechanisms, an incentive system to encourage good performance, and a training program aimed at correcting defects
- The major problems are best treated separately, and their organisational location should be determined by capacity to address them. An appropriately organised council (moderately sized , informed but not controlled by the judiciary) may be best suited for the initial selection process. It should be capable of evaluating technical qualifications and represent a wide range of citizen interests
- Training, monitoring and evaluation and disciplinary functions require different skills, and more direct judicial involvement. This might mean a council with more judicial representation or a judicial office with outside advisors
- Effective institutions need professional, well-organised and well-equipped administrative offices and a supervisory body with management skills. Neither the Supreme Courts nor the councils as currently organised have these skills, but if the courts can find a way to incorporate them, they are the most logical oversight bodies for their own administrative systems
- Rather than throwing out the council model entirely (an increasingly popular option), it might be wiser to start with a less ambitious set of tasks—the selection process and training as opposed to evaluation, discipline, policy making or administration.
