This paper from the 2002 American Political Science Association Conference seeks to examine regional trends in Latin America’s judiciary, with the aim of answering two questions: Is it the case, as is often claimed, that Latin America’s judiciary view themselves as merely servants of the executive, and that it is hard to access in order to gain justice from the courts? And what influence (if any) have reform agendas had on this? The author argues that, contrary to popular belief, Latin American constitutions generally invest the judiciary with a high degree of autonomy. In fact, recent efforts at reform have sought to reduce judicial independence. Furthermore, judicial reform programmes have been accompanied by backsliding and have at times proved counter-productive.
Generally, judiciaries in Latin America have been seen as subservient to and dependent on government. In fact, formal independence has been high for decades, and recent constitutional reforms have sought to reduce independence, while improving rights and access. Other findings include:
- Most constitutions contain rules respecting the independence of judges and declaring the nation subject to the rule of law
- Over the past fifteen years many countries have increased the independence and efficiency of courts and ease of access for litigants
- Where there has been a drop in independence, this has often been due to an increasing reliance on judicial councils which are themselves free from government interference, and may also free judges from dependence on their superiors
- Citizen access to justice is a vital aspect of democracy. While rule of law is generally considered to be integral to democratic consolidation, it is often overlooked by researchers in favour of elected institutions
- Public support of the judiciary is essential if the rule of law is to become consolidated. Access reforms will be useless without public trust in the efficacy of bringing cases to court. However, judicial reform also tends to highlight judicial failure.
It is absolutely essential to build a concensus among domestic actors in favour of reform (for example, through the incorporation of civil society actors). This in itself is a form of access to justice, and promotes democracy. It should also be noted that
- Prioritising one reform over another can be counter-productive, as improvements in one area can have “negative synergies” in other areas
- Programmes aimed at promoting democracy and human rights can very easily come into conflict with economic development and the enforcement of international law. When this happens, one or more may fall by the wayside
- While some have suggested dispute resolution and traditional justice as alternative ways of dealing with problems of access and efficiency, such systems lack oversight, are somewhat arbitrary and can contain systemic forms of discrimination
- Guarantees of access have actually dropped in several countries, often in response to rising crime. As criminal activity increases across Latin America this trend may spread.
